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Voter Suppression: How Bad? (Pretty Bad)

The last large-scale push to curb voting access was more than a century ago, after Reconstruction. Until now.

October 1, 2014
This was cross­pos­ted on The Amer­ican Prospect
 

For the first time in decades, voters in nearly half the coun­try will find it harder to cast a ballot in the upcom­ing elec­tions. Voters in 22 states will face tougher rules than in the last midterms. In 15 states, 2014 is slated to be the first major elec­tion with new voting restric­tions in place. 

These changes are the product of a concer­ted push to restrict voting by legis­lat­ive major­it­ies that swept into office in 2010. They repres­ent a sharp reversal for a coun­try whose histor­ical traject­ory has been to expand voting rights and make the process more conveni­ent and access­ible. 

Although some of these new laws are harsher than others, and some are still being fought in the courts, they have already dramat­ic­ally altered the land­scape for 2014. The outcomes of some of the tight­est races this year could turn on the applic­a­tion of contro­ver­sial new voting rules. Strict voter ID laws have gotten most of the atten­tion, but are only part of the story. Cutbacks to early voting and voter regis­tra­tion oppor­tun­it­ies, and other idio­syn­cratic changes to voting rules, have the poten­tial to do just as much damage.

Why is this happen­ing? Where are the most damaging new laws? What impact could they have in this year’s elec­tions? And how effect­ive are the efforts by voters to push back?

Voting Restric­tions in Context

First, some perspect­ive. The current assault on voting is highly unusual. Elec­tion rules have long been prone to politi­ciz­a­tion, but the last large-scale push to curb voting access was more than a century ago, after Recon­struc­tion. The first stir­rings of a new move­ment to restrict voting came after the 2000 Flor­ida elec­tion fiasco, which taught the unfor­tu­nate lesson that even small manip­u­la­tions of elec­tion proced­ures could affect outcomes in close races. Even so, only a hand­ful of states imposed new restric­tions over the decade that followed. 

That changed dramat­ic­ally after 2010, when state lawmakers across the coun­try intro­duced hundreds of bills to restrict voting. Although many of the new laws passed in that first year were initially blocked or weakened by courts, the Depart­ment of Justice, and citizen initi­at­ives, states contin­ued to press new voting restric­tions in 2013 and 2014.

What Explains This Sudden Shift? 

Partis­an­ship plays a key role. Of the 22 states with new restric­tions, 18 passed them through entirely Repub­lican-controlled bodies. A study by social scient­ists Keith Bentele and Erin O’Brien of the Univer­sity of Massachu­setts Boston found that restric­tions were more likely to pass “as the propor­tion of Repub­lic­ans in the legis­lature increased or when a Repub­lican governor was elec­ted.” After Repub­lic­ans took over state houses and governor­ships in 2010, voting restric­tions typic­ally followed party lines.

Race has been a signi­fic­ant factor. In 2008, voter parti­cip­a­tion among African Amer­ic­ans and certain other groups surged. Then came back­lash. The more a state saw increases in minor­ity and low-income voter turnout, the more likely it was to push laws cutting back on voting rights, accord­ing to the Univer­sity of Massachu­setts study. The Bren­nan Center for Justice like­wise found that of the 11 states with the highest African Amer­ican turnout in 2008, seven passed laws making it harder to vote. Of the 12 states with the largest Hispanic popu­la­tion growth in the 2010 Census, nine have new restric­tions in place. And of the 15 states that used to be monitored closely under the Voting Rights Act because of a history of racial discrim­in­a­tion in elec­tions, nine passed new restric­tions.

Some laws are espe­cially egre­gious in target­ing how minor­it­ies vote. The push to shut down Sunday early voting in states where African Amer­ican churches organ­ized success­ful “Souls to the Polls” drives is a glar­ing example. Laws restrict­ing voter regis­tra­tion drives are another such tactic. African Amer­ic­ans and Lati­nos register through drives at twice the rate of white citizens, and in recent years, civic groups have used drives to help close the racial regis­tra­tion gap—as they have for veter­ans, young people, and other less registered popu­la­tions. Instead of embra­cing these efforts, Flor­ida and several other states passed laws that make it diffi­cult—and, before a court stepped in, impossible—­for groups to help voters register. The result was a signi­fic­ant drop in regis­tra­tions.

Early Voting Cuts

The push to trim early voting provides another clear example of how new voting restric­tions target minor­it­ies. For more than two decades, states have been increas­ing early voting oppor­tun­it­ies. In fact,most states now offer early voting, and in the last two pres­id­en­tial elec­tions, a full one-third of Amer­ic­ans voted early. The reason for this expan­sion? Early voting works well—voters like it, elec­tion offi­cials like it, and it improves the elec­tion system. It is so non-contro­ver­sial that the bipar­tisan Pres­id­en­tial Commis­sion on Elec­tion Admin­is­tra­tion recently recom­men­ded that all states adopt it to prevent long lines at the polls.

Despite this consensus, after the 2008 elec­tion, support for early voting eroded among Repub­lican legis­lat­ors in the South and Midw­est. What changed? For the first time, African Amer­ic­ans had begun voting early at high rates. In South­ern states, early voting by African Amer­ic­ans nearly tripled between 2004 and 2008, over­tak­ing early voting by whites by a signi­fic­ant margin. In North Caro­lina, for example, seven in ten African Amer­ic­ans voted early in 2008, as compared to half of white voters. And while Repub­lic­ans have tradi­tion­ally been more likely to vote early, in 2008 Demo­cratic early votes exceeded Repub­lican ones.

Just as early voting has become success­ful among minor­it­ies and lower-income voters, it has become a target. Since 2011, eight states that saw recent increases in minor­ity early voting usage have sharply cut back on early voting hours and days—­Flor­ida, Geor­gia, Nebraska, North Caro­lina, Ohio, Tennessee, West Virginia, and Wiscon­sin. Gener­ally, the days and hours most likely to be slashed were those most popu­lar with minor­it­ies and hourly work­ers, like Sundays and even­ings. Accord­ing to a 2008 Ohio study, 56 percent of week­end voters in Cuyahoga County, the state’s most popu­lous, were black.

Some politi­cians have been surpris­ingly candid about their motives. A Geor­gia state senator recently caused an uproar by criti­ciz­ing local elec­tion offi­cials for placing an early voting site in a black neigh­bor­hood, call­ing it a “blatantly partisan move,” and vowing to work in the next legis­lat­ive session to “elim­in­ate this elec­tion law loop­hole” that enabled offi­cials to facil­it­ate minor­ity polit­ical parti­cip­a­tion. An Ohio offi­cial, explain­ing his 2012 vote to limit early voting hours, said: “I guess I really actu­ally feel we should­n’t contort the voting process to accom­mod­ate the urban [read: African Amer­ican] voter-turnout machine.”

Other Voting Restric­tions

Voter ID. While voter ID laws are noth­ing new, before 2011 only two states required voters to show govern­ment-issued photo IDs at the polls. Since 2011, nine states passed strict new ID laws. (Those states are Alabama, Arkan­sas, Kansas, Missis­sippi, North Caro­lina, Tennessee, Texas, Virginia, and Wiscon­sin.) Some accept state-issued student IDs while others do not, and some make it easier than others to obtain the neces­sary IDs. Four more states have passed some­what less restrict­ive ID require­ments. Nation­ally, 11 percent of Amer­ic­ans do not have the current state-issued photo IDs required under the stricter laws.

Voter Regis­tra­tion Restric­tions. Ten states passed laws making it harder for citizens to register. These include laws curb­ing voter regis­tra­tion drives (in Flor­ida, Illinois, Texas, and Virginia); rules requir­ing voters to provide docu­ment­ary proof of citizen­ship when regis­ter­ing (in Alabama, Kansas, Tennessee, and previ­ously in Arizona); laws elim­in­at­ing the highly popu­lar same-day regis­tra­tion (in Nebraska and North Caro­lina); and a law making it harder for people who move to stay registered (in Wiscon­sin). Voter regis­tra­tion prob­lems, which tend to pass under the radar, have long been the single greatest barrier to voting, caus­ing millions of lost votes per year. Unless your state has same-day regis­tra­tion, if you are not registered, you cannot vote. One in four eligible Amer­ic­ans is not registered, and millions more have outdated regis­tra­tions.

Curbs on Restor­ing Rights to People with Past Convic­tions. Flor­ida, Iowa, and South Dakota all made it signi­fic­antly harder for Amer­ic­ans with past crim­inal convic­tions to have their voting rights restored. In Flor­ida and Iowa, those citizens are essen­tially perman­ently disen­fran­chised. Nation­ally, 5.85 million Amer­ic­ans who have done their time have lost the right to vote; 1.5 million are in Flor­ida. Over­all, 7.7 percent of African Amer­ic­ans have lost their right—­com­pared to 1.8 percent of whites.

The number and complex­ity of new voting restric­tions across the coun­try are stag­ger­ing. As Yale Law Professor Heather Gerken put it, “It’s a death-by-a-thou­sand-cuts strategy.”

(Click here for an inter­act­ive map)

Key States to Watch

In many of the closest races this year, new restric­tions and ongo­ing court cases could become major factors. 

North Caro­lina has the dubi­ous distinc­tion of having the nation’s harshest and most sweep­ing new voting law. Enacted imme­di­ately after the Supreme Court gutted the Voting Rights Act last year, the law slashes seven early voting days, imposes a strict photo ID require­ment, elim­in­ates same-day regis­tra­tion, stops pre-regis­tra­tion for 16– and 17-year-olds, prohib­its the count­ing of provi­sional votes cast outside of voters’ home precincts, and more. Other than the photo ID require­ment, which will be imple­men­ted in 2016, all of these changes are currently in effect.

With a tight U.S. Senate race under way, these changes could have an impact on this year’s elec­tions, though it is diffi­cult to predict the magnitude. In 2008, more than 700,000 North Carolini­ans voted during the week the state cut from early voting—in­clud­ing nearly a quarter of all African Amer­ic­ans who voted that year. Even in the 2010 midterms, more than 200,000 voters cast ballots during that week. Many voters will likely find another way to parti­cip­ate, but some will not. When Flor­ida cut a week of early voting before the 2012 elec­tion, it led to conges­tion and long lines both before and on Elec­tion Day. More than 200,000 Flor­idi­ans did not vote that year because of long lines at the polls.

The elim­in­a­tion of same-day regis­tra­tion and out-of-precinct provi­sional ballot­ing can also do damage. In 2012, nearly 100,000 citizens used same-day regis­tra­tion in North Caro­lina, almost one-third of whom were African Amer­ic­ans. Nation­ally, same-day regis­tra­tion is gener­ally cred­ited with boost­ing turnout by as much as 5 to 7 percent. Already this year, hundreds of citizens cast ballots that went uncoun­ted in low-turnout primary elec­tions because of the elim­in­a­tion of same-day regis­tra­tion and out-of-precinct voting.

It is uncer­tain which of these restric­tions will still be in place for the elec­tions. The Depart­ment of Justice and civil rights groups have chal­lenged the law in federal court. A district court judge declined to block the changes in advance of the elec­tion, but during argu­ment on appeal last week, one judge asked: “How come the state of North Caro­lina does­n’t want people to vote?” (Regard­less of the outcome, the issue will not be fully settled this year; the case is sched­uled for a full trial next summer.) Voters are push­ing back in the streets as well; the new law has spawned large-scale protests across the state by the “Moral Mondays” move­ment. That move­ment has also mobil­ized a voter regis­tra­tion and educa­tion campaign to coun­ter­act what the NAACP’s Rever­end William Barber calls “the most regress­ive voter-suppres­sion law passed by any state in this coun­try since Jim Crow.”

Texas. In the midst of a high-profile gubernat­orial race, the Lone Star State now has a voter ID law that is the harshest in the nation, and called “absurdly strict” by the New York Times. Not only does Texas unne­ces­sar­ily limit the kinds of IDs it accepts for voting, it also cherry-picks—fam­ously accept­ing concealed-carry permits but not state-issued student IDs. Before imple­ment­ing this law, Texas was initially required under the Voting Rights Act to get federal approval to make sure that the ID law was not discrim­in­at­ory. Both the Depart­ment of Justice and a federal court blocked the law ahead of the 2012 elec­tions, find­ing that it discrim­in­ated against minor­ity voters. But while the case was await­ing appeal, the Supreme Court struck down the portion of the Voting Rights Act (Section 5) that required Texas to seek pre-imple­ment­a­tion review. Within hours of that decision, Texas moved to imple­ment the law—des­pite the court’s earlier find­ing that it was discrim­in­at­ory. The law is now being chal­lenged under a differ­ent part of the Voting Rights Act (Section 2) and the Consti­tu­tion, but has already been applied in local and primary elec­tions this year. 

If allowed to stand, Texas’s voter ID law could have a substan­tial impact this Novem­ber. Uncon­tro­ver­ted expert data presen­ted at trial showed that 1.2 million eligible Texans do not have IDs that would be accep­ted under the new law. Among registered voters, more than 600,000 lack accept­able ID. The effect on black and Latino voters is dispro­por­tion­ate; Hispanic registered voters are 3.2 times more likely than white voters to lack ID, and black registered voters are 2.3 times more likely to lack ID, accord­ing to an expert study.

A weak state program to provide free IDs is unlikely to close this gap before Elec­tion Day. As of Septem­ber, Texas had issued only 279 free IDs, and had done virtu­ally no voter educa­tion. Even if the ID itself is free, for many people the cost of obtain­ing the under­ly­ing docu­ments neces­sary to get it is prohib­it­ive. Lifelong voter Sammie Bates test­i­fied that it took her a while to save up the $42 needed to order her birth certi­fic­ate, which she needed to get free ID: “You’re going to put the money where you feel the need is most urgent. … We could­n’t eat the birth certi­fic­ate, and we could­n’t pay rent with the birth certi­fic­ate.”

In the low-turnout Novem­ber 2013 state primary, more than 250 provi­sional ballots were rejec­ted because the voters failed to present qual­i­fy­ing ID. While most empir­ical stud­ies show that requir­ing voter ID has a negat­ive effect on turnout, there aren’t enough data yet to estim­ate with preci­sion the impact the law will have on turnout if it remains in effect—espe­cially since there has never been an ID require­ment as strict as Texas’s. We may never find out, depend­ing on what happens in the courts over the next few weeks. Clos­ing argu­ments in the case chal­len­ging the law were made on Septem­ber 22; a decision could come any day now.

(Click here for an inter­act­ive map)

 

Wiscon­sin. Unless a court steps in, a strict new voter ID law and cutbacks to early voting are slated to go into effect in Wiscon­sin for the first time this Novem­ber. Wiscon­sin Governor Scott Walker played a signi­fic­ant role in press­ing these contro­ver­sial new voting meas­ures, and they could now make a differ­ence in his close re-elec­tion race this year. 

The new voter ID law, which rivals Texas’s as one of the coun­try’s most restrict­ive, was previ­ously blocked by multiple state and federal courts, but those decisions were recently lifted, just weeks before the elec­tion. By a tie vote, the Seventh Circuit Court of Appeals refused to rehear the appeal en banc, with Judge Richard A. Posner, who famously regret­ted his vote to uphold Indi­ana’s ID law, voting to rehear. With almost no time to prepare or educate voters, and with early absentee voting already under way, this last-minute change could create seri­ous snafus in the elec­tion. The thou­sands of people who have already mailed in absentee ballots have been told that they now need to send in copies of their photo IDs—as­sum­ing they have them—or their votes will not count. In addi­tion to the confu­sion, the law will certainly create prob­lems for the 300,000 eligible Wiscon­sin voters who do not have IDs accept­able under the new law. In Milwau­kee County, the state’s largest, 7.3 percent of white voters, 13.2 percent of African Amer­ic­ans, and 14.9 percent of Lati­nos lack accept­able IDs.

Wiscon­sin also elim­in­ated week­end early voting, effect­ively prevent­ing “Souls to the Polls” drives in the state this year. Flor­id­a’s exper­i­ence in 2012 shows that cutting Sunday voting can make a seri­ous dent in turnout; more than 18 percent of Flor­idi­ans who voted on the last Sunday of early voting in 2008—e­lim­in­ated in 2012—­did not vote at all in 2012, accord­ing to an analysis by Profess­ors Paul Gronke of Reed College and Charles Stew­art of the Massachu­setts Insti­tute of Tech­no­logy. 

Kansas and Arizona. Voting restric­tions have the poten­tial to make a differ­ence in the close gubernat­orial and Senate races in Kansas, and in close House races in Arizona this year. Both states now require docu­ment­ary proof of citizen­ship to register to vote, a meas­ure first authored by embattled Kansas Secret­ary of State Kris Kobach. 

Since Janu­ary 2013, tens of thou­sands of voter regis­tra­tions have been submit­ted in Kansas without the required docu­ments. Although aggress­ive research and outreach efforts have helped get thou­sands of these docu­ments to voters, there are currently almost 20,000 Kansans who attemp­ted to register but will not be able to vote this Novem­ber. There are no new numbers avail­able from Arizona, but when the state first imple­men­ted its require­ment in 2005, more than 31,000 applic­a­tions were rejec­ted for lack of docu­ments, and community-based voter regis­tra­tion plummeted by 44 percent in the state’s largest county. Only 11,000 of those applic­ants were later able to register to vote, and about 20 percent of the remain­ing 20,000 unsuc­cess­ful applic­ants were Latino. The laws are currently the subject of two lawsuits, only one of which is likely to be decided before the upcom­ing elec­tion. If voting advoc­ates prevail in that suit, then voters who lack citizen­ship docu­ment­a­tion will be able to register and vote in federal races only.

Flor­ida has long led the coun­try in voting restric­tions. Most recently, in 2011, the state cut back on early voting, hampered voter regis­tra­tion drives, and rolled back voting rights for people with past convic­tions. While the early voting and voter regis­tra­tion restric­tions have been mitig­ated by court decisions and even a 2013 partial repeal, the more than 1.3 millionFlor­idi­ans convicted of crimes who have completed their sentences and paid their debt to soci­ety are still essen­tially perman­ently disen­fran­chised because of changes Governor Rick Scott and his clem­ency board made to Flor­id­a’s rules in 2011. Scot­t’s new crim­inal disen­fran­chise­ment rules, which rolled back pro-voter reforms passed by former Governor Charlie Crist, have the poten­tial to make a big differ­ence in this year’s neck-and-neck gubernat­orial race between Scott and Crist. 

Ohio may not have a close statewide race this year, but its voting shenanigans are always of national concern. This year, state offi­cials tried to cut back dramat­ic­ally on early voting—stop­ping all week­end early voting—and to elim­in­ate its period of same-day regis­tra­tion popularly known as “Golden Week.” As a federal court recently found, and an appeals court affirmed, these moves could have hurt tens of thou­sands of voters, and dispro­por­tion­ately African Amer­ic­ans. The courts initially blocked these changes for this elec­tion, but just one day before early voting and Golden Week were sched­uled to begin, the five conser­vat­ive justices of the U.S. Supreme Court rein­stated them. These meas­ures were put in place in response to the chaos and long lines at the polls in 2004; their loss could spell trouble this year. The fight in Ohio is not yet over for 2016.

Arkan­sas passed one of the new wave of strict voter ID laws last year. With one of the coun­try’s hottest Senate races in the balance, the law has taken on much greater signi­fic­ance this year. A state court found that the law viol­ates the state’s consti­tu­tion, which has strong protec­tions for voting rights, but it declined to block the law. The case was heard by the Arkan­sas Supreme Court, and a decision could come down any day now.

What’s Next?

New voting laws aren’t the only concerns this year. Watch out for polit­ic­ally motiv­ated attacks on groups that register voters, last-minute attempts to purge names off voter rolls, and voter harass­ment by vigil­ante groups—all of which have the poten­tial to chill regis­tra­tion and parti­cip­a­tion. Watch also for wide­spread confu­sion and mistakes as a result of all these voting rules changes. And watch out for long lines at the polls, espe­cially in minor­ity communit­ies; despite the uproar in 2012, the coun­try still hasn’t taken key steps to prevent lines.

The role of the courts will be crit­ical in the coming days and weeks. In five key states—A­ri­zona, Arkan­sas, Kansas, North Caro­lina, and Texas—the voting rules are still up in the air as lawsuits chal­len­ging new laws make their way through the courts. In the lead-up to the 2012 elec­tion, 10 courts in seven states blocked, post­poned, or mitig­ated virtu­ally all of the harshest new voting restric­tions that were slated to go into effect that year. But that was before the Supreme Court had gutted a key portion of the Voting Rights Act. The jury is still out on whether the courts will be as force­ful in protect­ing voting rights this year. The coun­try needs them to be—or we risk cement­ing a new pattern of elec­tions marred by discrim­in­at­ory partisan changes to voting rules.

(Photo: AP)