Blog
Voter ID
By Lawrence Norden – 03/11/09
In December, Ohio Secretary of State Jennifer Brunner called together some of the country's leading election experts and voting rights advocates, as well as a bipartisan group of state legislators and election officials, to review the 2008 election and offer suggestions for reforming the state's election policy. She asked me to Chair this summit and to prepare a report summarizing the views of those who participated, providing relevant background and data where needed. She called this the "first step" in a process to solicit the views of Ohio voters and experts as she developed her reform agenda.
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Tags: Democracy, Voting Rights & Elections, Election Day Issues, Other Voter List Issues, Purges, Voter ID, Voter Registration Drives, Voting Technology
By Maggie Barron – 03/06/09
A voter ID bill died in Mississippi yesterday, not because legislators came to their senses and realized there’s no threat of voter fraud, but because the bill wasn’t restrictive enough.
In a rare turn of events, the voter ID bill was actually killed in committee by three of its most vocal supporters, Republican senators Joey Fillingane, Merle Flowers and Billy Hewes.
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Tags: Democracy, Voting Rights & Elections, Allegations of Voter Fraud, Voter ID
By Justin Levitt – 01/30/09
For years, too many of our public officials developed a bad habit of jumping to conclusions on insufficient facts. Even after a return to private practice, it seems, that habit is hard to break.
Three weeks ago, Hans von Spakovsky wrote an op-ed about a South Carolina state house race ostensibly marred by fraud. He claimed that the losing candidate, Wallace Scarborough, found more than 300 "illegal votes," more than half again the margin of victory. And he accused the State Election Commission of violating state law, "fail[ing] in its sole responsibility: to protect the security and integrity of the democratic election process."
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Tags: Democracy, Voting Rights & Elections, Allegations of Voter Fraud, Voter ID
By Thaddeus Kromelis – 11/02/08
As the 2008 Election draws to a close, the stars are coming out to protetct voting rights. Last Friday, along with the Advancement Project, the Brennan Center produced several PSAs featuring Sean "P. Diddy" Combs and Russell Simmons. I've posted them below. Here's some of the release announcing the campaign
Sean "P. Diddy" Combs and Russell Simmons have teamed up with the Advancement Project and the Brennan Center for Justice on a voter education campaign in the key states of Florida, Virginia, Ohio and Colorado. The campaign kicked-off Saturday, with the release of Public Service Announcements, released to radio, which gave voters important information to bring ID and to contact 1-866-OUR-VOTE with any problems.
When voters show up at the polls and have their eligibility questioned, they may be asked to vote with "provisional ballots." Known as a fail-safe for voters who are being challenged or who are not on the rolls, provisional ballots should be treated skeptically.
Rules vary from state to state, but these ballots are often counted only if the voter appears in a voter registration database or if the voter can provide evidence of his eligibility in the days after the election. For this reason, many provisional ballots go uncounted. In the 2008 primaries, 40% of provisional ballots were ultimately rejected.
Listen to the recordings after the fold...
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Tags: Democracy, Voting Rights & Elections, Election Day Issues, Other Voter List Issues, Provisional Ballots, Voter ID, Voter Registration Drives
By Justin Levitt – 05/19/08
The Supreme Court's recent
Crawford decision on Indiana's photo ID law was a statement on
evidence (albeit mixed in its
devotion to facts), and not a call to arms. And so far, few states have gotten riled up, preferring instead to spend their little remaining legislative time this session on real solutions to real problems, rather than disenfranchising
elderly nuns.
Political operatives in two states, though, decided that this was an opportune moment to try to tilt the electoral scales for 2008, and pressed legislation creating—not solving—problems for their own citizens.
We've written before on Missouri's firestorm over a proposed constitutional amendment on restrictive photo ID and citizenship rules. At the end of the legislative session, and with the potential to swing the 2008 election on the line (given the history of photo-finish statewide races in Missouri), the amendment died on the vine last Friday after lawmakers ajourned for the year without bringing it to a vote. And then there's the neighbor to the west, which was trying mightily to keep up with the Joneses.
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Tags: Democracy, Voting Rights & Elections, Voter ID, Voter Registration Drives
By Thaddeus Kromelis – 05/12/08
The Show Me State – today lawmakers in Missouri are expected to vote on a constitutional amendment that would require voters to provide proof of citizenship—birth certificates and passports, leave the utility bill at home—when registering to vote. Supporters claim erecting this barrier will prevent illegal immigrants from casting votes and keep the polls free of voter fraud.
According to the New York Times, the Missouri law is expected to pass and would yolk voters with a burden greater than the Indiana's voter ID law recently upheld by the Supreme Court. Also, of 19 states considering similar requirements, Missouri is the only one that could very well have something on the books in time for the presidential election.
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Tags: Democracy, Voting Rights & Elections, Voter ID
By Myrna Pérez – 05/09/08
The story of the elderly Indiana nuns who were turned away from the polls because they lacked voter ID has won wide attention. Those who urge harsh voter ID laws, supposedly to block voter fraud, can't be too happy. So now they have started to respond. Their answer: attack the nuns!
John Fund, writing on the Wall Street Journal website, charges that the nuns could have voted, because they could have gotten "provisional ballots." Let's see: to get the ballots, the nuns, in their 80's and 90's, would have had to go first to the polling place ... then to the state Bureau of Motor Vehicles office ... then to the county seat within ten days. All to do something they could have done their entire lives, i.e., exercise their right to go to the polls and vote.
Or, he says, they could simply have voted absentee - again, something these voters never were forced to do before. It hardly seems fair to tell citizens, "You can vote without a drivers license, but only if you do it from hiding and make your plans long in advance." (P.S., if the goal is to prevent fraud, couldn't a trickster also vote absentee?)
There's a better answer. Let's stop passing laws that make it harder for eligible citizens to vote. Let's focus instead on passing laws to make the American voting system the best in the world. That would mean electronic machines that work and give paper records, professionalizing election administration so partisan hacks don't oversee elections, and a move to universal voter registration - where the government makes sure that eligible voters are on the rolls and can cast their ballots.
Improving democracy? As the nuns might say, it's time to get in the habit.
Tags: Voting Rights & Elections, Voter ID
By Justin Levitt – 05/02/08
Cross-posted from ACS Blog
On April 28, the Supreme Court handed down a decision in the Crawford cases,
rejecting a challenge to Indiana's law requiring voters at the polls to
provide certain types of government-issued photo identification. I had predicted
that the opinion would likely have impact far beyond Indiana, refining
the standard for justifying a burden on voters, and potentially
changing the ground rules for 2008 and beyond. But by and large, it
looks like I was wrong: though the rhetoric around the case grows ever
louder, in terms of the legal holding, this was far more a whimper than
a bang.
The decision was split, 3-3-2-1. Justices Stevens and Kennedy, and
Chief Justice Roberts, issued the "lead" plurality opinion, rejecting
the challenge to the law as overbroad in light of the limited evidence
in the record on the extent of the law's burdens.
Justices
Scalia, Thomas, and Alito would have gone much further, granting
blanket approval to any election law without intentional discrimination
or severe widespread impact. The latter, they hinted, would require a
showing of serious problems for the average elector. Absent that,
states could presumably feel free to forbid rich and poor alike from sleeping under bridges.
Justices
Souter and Ginsburg dissented, finding that the state had not
adequately justified the burdens of the law, even on the case's limited
record. Justice Breyer also dissented, writing separately to emphasize
that Indiana offered no defense of its law—the most restrictive in
the country—to justify restrictions above and beyond those in place
in other states.
So what to make of the mix? Justice Stevens'
plurality opinion is controlling, but it does not offer much specific
control. It affirms the "flexible" constitutional standard of Anderson v. Celebrezze:
courts must "weigh the asserted injury to the right to vote against the
‘precise interests put forward by the State as justifications for the
burden imposed by its rule.'" The more severe the burden, the hardier
the necessary justification. This balance, the plurality makes clear,
requires a "hard judgment." And that's most of the guidance the opinion
provided.
To be fair, the plurality did resolve a few pending
issues. For example, there was a question about whether cases
concerning a voter's right to cast a ballot (Dunn v. Blumstein, Bush v. Gore, Purcell v. Gonzalez) involved a different degree of scrutiny than ballot access cases asserting more indirect injury: with nary a mention of Dunn et al. in the Crawford plurality, it is now clear that the flexible Anderson standard applies across the board.
The opinion also makes clear that the Anderson
test does not function like a light switch, applying strict scrutiny to
laws causing severe burdens and giving a pass to all others. Instead,
the test is more like a dimmer: however slight the burden, "it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.'" The "relevant" qualifier is
clearly significant: even slight burdens will be unjustified by
rationales that are "unrelated to voter qualifications." Thus, the poll tax, however small, remains unconstitutional.
Furthermore, gerrymandering aside,
the opinion puts the kibosh on the argument that a partisan lineup is
cause to question election laws that are otherwise justified. Overly
restrictive partisan effects from election laws, presumably, should be
sussed out by examining the burden on certain classes of voters, and
not through a roll call.
Beyond that, the case came down to the
facts in the record ... and the plurality thought this record too bare to
strike the law down across the board. Part of the problem is that the
case was a pre-enforcement challenge, brought before Indiana's law was
put into effect and therefore without direct evidence of past harm. But
the case record was also thin on reliable anticipatory statistics, and
somewhat thin on affidavits articulating the burdens that individual
voters could reasonably anticipate. These gaps provided a good part of
the reason (or the excuse) for the Court to reject the petitioners'
challenge. Without solid proof of burden in the record, Indiana's
justifications for its laws were good enough.
It's not entirely
clear what evidence of burden on voters is now required. The overall
feel is that the Court has made it more difficult for plaintiffs to
mount a facial challenge. But given the Court's headlong sprint from
facial challenges in other recent cases,
the language here is relatively modest. With enough proof that enough
voters will be sufficiently burdened—burdened, not blocked outright—a pre-election facial challenge still seems viable, albeit mildly
disfavored. And with enough proof that certain voters will be
sufficiently burdened, as-applied challenges are available to carve
exceptions from election laws of general application. "Enough" and
"sufficiently" are terms left to define another day.
To me, those
are substantial silver linings in a decision with much to criticize,
even without lamenting the result for ID-less Hoosiers heading into
next week's primaries. I've written elsewhere, for example, about the Crawford plurality's factual lapses. Moreover,
the Court's evidentiary standards imply that challenges will be easier
to win only after voters have lost their rights, yielding victories
profoundly Pyrrhic. And like Brad Smith (who has graciously allowed me
to excerpt his email to a private listserv), I am bewildered by the
unwarranted stature the Court seemed to grant the Carter-Baker
Commission's questionable research:
What
is the Carter-Baker Commission? It's not a government agency, elected
or even appointed by those who have been elected. It's not an academic
report subject to academic scrutiny or peer review. In the end, it's
just a bunch of guys (and gals) saying, "here's what we think." . . .
Whence the deference given to a private group like this? . . . They
just heard some "witnesses" and maybe looked at some other evidence and
then signed on to a report as their opinion. Well, heck, lots of people
have an opinion.
Still, as Dan Tokaji notes, it could have been worse. Though voter ID laws have largely been partisan affairs,
the Court did not break down along typical 5-4 ideological lines. Six
Justices recognized that restrictive ID laws might unduly burden some
eligible voters, particularly poor and elderly citizens. The federal
courthouse remains available to these voters, though it will take a
hefty push to open the doors.
Tags: Democracy, Voting Rights & Elections, Voter ID
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