Politics-US voting rights and rules
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lecture.docxWeek 4
Modern Institutions: Advances
After 1914, through constitutional amendments and acts of Congress, the right to vote (known as suffrage) was expanded. The goal of many reformers was universal suffrage, or the expansion of the right to vote to all adult citizens. A major advancement toward the goal of universal suffrage came with the 19th Amendment to the United States (US) Constitution (ratified August 18, 1920), which granted women’s suffrage. Specifically, the Amendment states, “The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
The Indian Citizenship Act of 1924 provided suffrage for Native Americans. It would, however, be nearly a decade until all states recognized the right.
The US Supreme Court guaranteed that suffrage would be meaningful. In Baker v. Carr (1962), the US Supreme Court held that federal courts had jurisdiction over voting rights cases. The Court also held that Congressional districts must have statistical equality to guarantee that each person had an equally weighted vote, commonly referred to as the “one person, one vote” doctrine. In other words, the Court held that redistricting efforts that diluted the power of a person’s vote were unconstitutional. The Court concluded the 14th Amendment’s Equal Protection Clause required the “one person, one vote” doctrine.
Prior to Baker, state legislatures would routinely dilute the power of votes when drawing representative district lines. One technique was known as cracking where the state legislature would break up blocks of voters. Another technique was stacking where state legislators would put opponent groups around undesired voters (so the voters could never achieve a majority). Also, state legislators would use packing where they would pack undesired voters together to give them just one vote (only one seat in the legislature). Undesired voters were often either minorities or members of the opposing political party.
In Wesberry v. Sanders (1964) the US Supreme Court held that US House districts (there are 435 of them) must be roughly equal in population. In Reynolds v. Sims (1964) the US Supreme Court held that districts for state office also must be roughly equal in population. Lastly, in Avery v. Midland County (1968) the US Supreme Court held that local government districts also must be roughly equal in population.
The percent of statistical disparity is calculated by taking the actual difference between the drawn district and the ideal district (where each person has one vote) divided by the ideal district. The Court employs zero tolerance in federal elections. The Court routinely upholds less than 10 percent disparity in state elections and upholds less than 12 percent disparity in local elections.
The 24th Amendment to the US Constitution (ratified January 23, 1964) prohibited the use of poll taxes in federal elections. With respect to the states, federal legislation prohibited many of the worse practices.
Civil Rights Act of 1964
While this act is best known for its prohibition of discrimination on account of race, color, religion or national origin, Title I of the Act also included important voting protections. Specifically, Title I provided for equal protection and prevented states from denying the right to vote because of a mistake in registration if that mistake was not material.
Voting Rights Act of 1965
The Voting Rights Act of 1965 banned literacy tests in areas of low registration; provided for federal registrars after the request of 20 people and investigation by the federal Attorney General; and banned all poll taxes. The Act also required pre-clearance of state election law changes that have discriminatory effects or purpose.
The Act was controversial because it singled out a portion of the country, namely the South, and required those states to obtain pre-clearance by the federal government before making any changes to their state election laws. On the other hand, supporters of the Act merely point to the long history of voter suppression, especially of minorities, in those states and argue such abuses justify strong federal intervention.
26th Amendment
The 26th Amendment to the US Constitution (ratified July 1, 1971) lowered the voting age to 18. The lowering of the voting age significantly expanded the voting age population (VAP).
National Voter Registration Act of 1993
In 1993, President Clinton signed the National Voter Registration Act, also commonly called the “motor voter” law.The Act allows people to register to vote while applying for or renewing a driver’s license. The Act intended to make it easier to vote. Applying rational choice theory, proponents argued that by reducing the costs of registering to vote it was expected that more individuals would vote.
However the law had the effect of increasing registrations but did not have an effect on actual voter turnout (the proportion of the voting age public that actually votes). Thus, the Act had the unintended effect of widening the gap between actual voter turnout and the number of voters registered.
Help America Vote Act of 2002
Congress enacted sweeping reforms in response to the 2000 Election troubles (that culminated in the infamous Bush v. Gore). In the Help America Vote Act of 2002 (HAVA), Congress mandated that states replace punch card and lever-based voting systems; created the Election Assistance Commission (EAC) to assist in the administration of Federal elections; and established minimum election administration standards.
The minimum election administration standards included (1) a statewide computerized voter database; (2) any voter who registered by mail and who has not previously voted in a federal election must show current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter; and (3) voters identified as ineligible (such as voters not found on the registered list), but who believe themselves to be eligible, must be allowed to cast a provisional ballot.
The Act was subject to many criticisms. The Act unfairly benefits makers of electronic voting systems (who make millions selling their machines). Also there has been a lack of promised federal funding (unfunded mandates). Others have argued that the Act complicated voter registration as states must confirm HAVA compliance. Also, as will be discussed in more detail in the next section, Photo ID (included by Republicans to fight voter fraud) actually has disenfranchised many, especially minorities. Even worse, the requirement in HAVA has encouraged many states to consider imposing stricter photo ID requirements.
While the nation has benefited from many institutional advances that have expanded the right of suffrage and made it easier than ever for citizens to vote, many modern reforms have not been without criticism. In fact, some reforms, such as HAVA, have actually been the inspiration for what can be described as setbacks for those who favor universal suffrage.
Modern Institutions: Setbacks
Voter ID
Indiana seized the opportunity afforded by HAVA, and in 2005 its legislature passed a law that requires any voter to present valid, unexpired photo identification at the polling place. David Williams (2008) noted that Indiana’s statute was the most restrictive in the country, “every other state makes it easier to vote” (379).
It makes sense that requiring photo identification may tend to prevent individuals from trying to vote under someone else’s name. During federal litigation, however, Indiana was “unable to point to a single instance of in-person voter fraud in Indiana’s history, so it seems the old system of voter identification—at registration—must have been doing a good job of blocking fraud, without the additional burdens levied by the new law” (Williams 2008, 383). Rather than prevent fraud, it appears the Republican legislature passed the law merely to discourage Democrats from voting. Williams (2008) explained, “Elections are sometimes won by a margin of only a few votes. If the law keeps even a few Democratic voters from voting, it might swing a few elections to the Republicans” (384).
In Crawford v. Marion County Election Board (2008), the US Supreme Court upheld Indiana’s voter identification law by a 6 to 3 vote. In determining the constitutionality of the law, “the Court [considered] the evidence so as to assess the degree of burden on the voter and the strength of the state interest. Unfortunately, neither side could muster much evidence to support its claims” (Williams 2008, 383). In this circumstance, the majority chose to “presume the statute to be constitutional unless the challenger [convinced] otherwise” (385). The plaintiff, however, appears to have failed to provide the evidence needed to persuade the majority.
In 2012, the number of states that have enacted voter identification requirements has expanded to 32 states, with 16 states requiring photo identification. Pennsylvania adopted a strict photo identification law in March 2012 (Act 2012-18). In addition, the Virginia legislature currently seeks to strengthen their existing voter identification law by requiring photo identification for all voters.
Scholars have identified problems caused by voter identification requirements. If such laws continue to expand, it was estimated that some 20 million Americans nationwide could be disenfranchised. Strong evidence was found that strict voter identification laws substantially affect lower income, minority and elderly voters (Barreto, Nuno, and Sanchez 2009). Such laws were also found to negatively impact the lesser educated (Hershey 2009).
Voter identification requirements also increase costs for states and local governments, which bear the primary burden for financing elections. Voter identification requirements require professional staff and volunteers to undergo additional training with respect to what constitutes acceptable identification, how to determine its validity and how to operate any necessary equipment. A sustained, expensive public information campaign would be needed to educate the public about voter identification requirements. Further, given that large numbers of voters will be disenfranchised as the requirement is expanded to other states, litigation expenses can reasonably be expected to increase.
Another serious problem with the implementation of the voter identification requirement in HAVA involves conflict with election administrators. Palazzolo and McCarthy (2005) note that state election administrators originally opposed the requirement because it placed them at odds with the voter if he or she did not do what the law required, which created potential conflict situations.
However, disenfranchised voters and conflicted election administrators are not the only individuals impacted by voter identification laws. Even voters who can comply with the voter identification requirements may be impacted through their interaction with poll workers that are put under greater pressure by the requirements. Many poll workers are quite simply ill prepared to implement the requirements (Hall 2007).
Moreover, voter identification requirements put poll workers into a quasi-law enforcement role not well suited to their work as facilitators of the voting experience. Policymakers must acknowledge the very real problem of false identification. Mark Kleiman (2002) argued, “. . . a very sincere fake driver’s license can be purchased over the Net, and possession of some sort of false [identification] is de rigeur [sic] among college students” (285). The sophistication and training needed to detect a quality fake driver’s license would likely be prohibitively expensive for the typical election official or volunteer. Further, legal authority exists to support an argument that demanding identification constitutes a search that could invoke constitutional questions under the Fourth Amendment (Smith and Sobel 2009). For those that advocate universal suffrage, the rapid spread of photo identification laws represents a serious challenge.
Felons
Another challenge to universal suffrage involves felon disenfranchisement. In November 2000, an estimated four million individuals were unable to vote because they were incarcerated, on parole or had once been convicted of a crime (Keyssar 2000). “Most of these individuals were black or Hispanic, and in some states where disenfranchisement is permanent, including Florida, more than fifteen percent of all black males were barred from the polls” (330).
Prior to the 2000 Election, Florida Republicans purged the voter rolls of anyone suspected of having a criminal conviction. Some of the individuals purged had never committed a crime (Keyssar 2000). For example, one such individual was “Reverend William D. Whiting of Tallahassee, whose name bore an unfortunate similarity to that of convicted felon William J. Whiting” (330).
Electoral Reforms
Modern electoral reforms, such as voting by mail and early voting, which have sought to make voting easier, have failed to increase voter turnout. Rather, it appears such reforms “have a greater effect on retention than on stimulation [of new voters]” (Berinsky 2005, 478).
Some reforms are also expected to widen class bias. A good example is internet voting. While clearly internet voting would be convenient, it would tend to favor the educated and young, but not favor the extremely poor or minorities. Older and less educated individuals are not as comfortable using computers, and the extremely poor, which includes many minority groups, are less likely to own computers. Even setting aside very serious security concerns, evidence has shown a strong likelihood of class bias with internet voting being used “at a significantly higher rate in counties with higher median income and higher percentage of White residents” (Berinsky 2005, 482).
For the US republican form of government (where representatives are elected to represent the interests of the people) to have legitimacy, theorists have argued that universal suffrage is important. While many constitutional amendments, court cases and statutes have expanded suffrage and redefined voting in our modern era, efforts are being made for many reasons, including partisan, to limit voting rights. While some electoral reforms are instituted with the best intentions of expanding voter turnout, studies reveal they tend to only make voting easier for those citizens already committed to voting and those existing voters favored by the power elite: Such reforms appear to do little to stimulate new voters or to overcome the barriers established by registration and voter ID laws. It is important for citizens to consider what it means to have a healthy republic, and to be political engaged, including exercising their right to vote, while also supporting electoral reforms that truly make a positive difference.
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