response paper
hwang12s
cqr20140221c.pdf
voting Controversies Are U.S. elections being conducted fairly?
E lection laws and voting procedures have been a
major source of controversy in the United States ever
since the stunted recount in florida that determined
the outcome of the 2000 presidential contest. Repub-
licans and Democrats have clashed fiercely in state after state over
GOP-backed proposals to require government-approved photo IDs
for voters to cast ballots. Republicans say the laws prevent fraud;
Democrats say the laws are aimed at vote suppression. Court rul-
ings on the laws are mixed. The Supreme Court added to the
controversies with a decision in June to disable a major provision
of the federal voting Rights Act that required some states and lo-
calities with a history of discrimination to obtain permission from
the government before instituting any change in voting procedures.
A bill to restore the provision has been introduced in Congress,
but no hearings have been scheduled yet. Election officials are
also looking at recommendations from a presidential commission
for online registration, more early voting and costly replacement of
technologically obsolescent voting machinery.
During the 2012 presidential campaign, demonstrators in Philadelphia protest a controversial law pushed through the legislature by Republicans requiring Pennsylvania voters to show a photo ID.
The law, one of more than 20 state voter-ID measures passed since 2005, has been blocked by a court
challenge, now awaiting an appeal. Similar laws are being challenged in at least four other states; several others are considering tightening
voter-identification procedures.
CQ Researcher • Feb. 21, 2014 • www.cqresearcher.com Volume 24, Number 8 • Pages 169-192
RECIPIENT Of SOCIETY Of PROfESSIONAL JOURNALISTS AwARD fOR EXCELLENCE � AmERICAN BAR ASSOCIATION SILvER GAvEL AwARD
I
N
S
I
D
E
THE ISSUES ....................171
BACKGROUND ................178
CHRONOLOGY ................179
CURRENT SITUATION ........184
AT ISSUE........................185
OUTLOOK ......................187
BIBLIOGRAPHY ................190
THE NEXT STEP ..............191
THISREPORT
Published by CQ Press, an Imprint of SAGE Publications, Inc. www.cqresearcher.com
170 CQ Researcher
THE ISSUES
171 • Should Congress revive the voting Rights Act’s preclear- ance requirement for some states and localities? • Should courts strike down voter photo-ID laws? • Should states make regis- tration and voting easier?
BACKGROUND
178 ‘Forces of Democracy’voting rights were expanded after long, hard-fought struggles.
181 Election MechanicsCongress addressed election administration issues in the 1990s and early 2000s.
182 ‘Voting Wars’voting controversies intensi- fied as new state voter-ID laws proliferated.
CURRENT SITUATION
184 Court CasesSeveral state voter-ID laws face court challenges, including in Pennsylvania, wisconsin, Texas and North Carolina.
186 Shift in Legislation?Some state legislators are try- ing to ease access to voting; others are trying to make it harder, according to the Brennan Center for Justice.
OUTLOOK
187 Continuing DebatesArguments over the impact of voter-ID laws appear likely to remain unresolved.
SIDEBARS AND GRAPHICS
172 Nearly Three Dozen StatesHave Voter-ID Laws A wide array of IDs are ac- cepted.
173 Most States Have ExpandedVoting Laws more than 30 states allow early voting; 26 allow “no- excuse” absentee balloting.
176 Online Registration Gainsin Popularity Twenty-five states allow limit- ed or full online voter regis- tration.
179 ChronologyKey events since 1965.
180 Outmoded Voting MachinesPose ‘Impending Crisis’ Presidential commission says current technology no longer meets election needs.
182 Leadership VacuumStymies Election Agency Partisan infighting leaves Election Assistance Commis- sion lacking a quorum.
185 At Issue:Should Congress pass the proposed rewrite of the voting Rights Act?
FOR FURTHER RESEARCH
189 For More InformationOrganizations to contact.
190 BibliographySelected sources used.
191 The Next StepAdditional articles.
191 Citing CQ ResearcherSample bibliography formats.
vOTING CONTROvERSIES
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voting Controversies
THE ISSUES w
ith the 2012 pres- idential campaign underway, Repub-
lican legislators in the battle- ground state of Pennsylvania pushed through a new law requiring voters to show a photo ID before casting their ballots. GOP lawmakers minimized the likely impact of the law, approved on a party-line vote, saying that only 90,000 Pennsylvanians lacked the kind of government-issued photo identification required by the law.
In a damning decision two years later, however, a state court judge found that the law — on hold pending a legal challenge — could disenfran- chise up to 5 percent of the state’s electorate, or as many as 400,000 otherwise quali- fied voters. In a 103-page rul- ing issued on Jan. 17, Judge Bernard mcGinley faulted state agencies for doing little to tell voters about the new re- quirement or the procedures for obtaining a qualifying identification.
mcGinley also said the state had failed to show the need for the photo-ID procedure, which GOP legislators said would help prevent voter fraud at polling places. The state “wholly failed to show any evidence of in-person voter fraud,” mcGinley wrote. 1
The Pennsylvania law is one of more than 20 state measures establishing or tightening voter-ID requirements passed since 2005. (See map, p. 172.) The issue has split the two major politi- cal parties. In sponsoring these mea- sures, Republicans say they are need- ed to prevent fraud and protect the
integrity of elections. Democrats say the laws are not needed and are being pushed in order to reduce voting among groups that skew Democrat- ic in elections, especially Latinos and African Americans. 2
The two parties are also divided for the most part on a new issue creat- ed by the Supreme Court’s June 2013 decision to nullify a key provision of the federal voting Rights Act used to police racially discriminatory election practices in some parts of the coun- try. The decision in Shelby County v. Holder effectively nullified a require-
ment that eight states and lo- calities in four others had to obtain “preclearance” from the Justice Department or a fed- eral court in washington be- fore instituting any change in election law, procedure or practice.
A bipartisan bill cospon- sored by Senate Judiciary Committee Chairman Patrick J. Leahy, D-vt., and former House Judiciary Committee Chairman James Sensenbren- ner, R-wis., would reimpose the preclearance requirement on states or localities with a recent history of racial dis- crimination in voting proce- dures. The bill is aimed at meeting the court’s objection that the use of a “coverage formula” dating from the 1960s to determine the jurisdictions subject to preclearance was unconstitutional. voter-ID laws, however, would be exempt from the new preclearance provision. 3
Traditional civil rights and civil liberties groups are strongly supporting the pro- posed rewrite, as are many Democrats on Capitol Hill. Despite Sensenbrenner’s role, some of his leading Re-
publican colleagues oppose the bill, as do some conservative election law experts and advocates. (See “At Issue,” p. 185.)
Elections in the United States have been under intense scrutiny ever since the presidency was awarded to George w. Bush in 2000 on the basis of a highly disputed vote count in the pivotal state of florida. Two years later, Congress passed and Bush signed into law the Help America vote Act, aimed at helping states upgrade voting ma- chines and improve vote-counting pro- cedures. 4
BY KENNETH JOST
G e tt y Im a g e s/ E l N u e vo H e ra ld / D a vi d S a n ti a g o
Voters in Miami wait to cast ballots in the presidential election on Nov. 6, 2012. A bipartisan commission that President Obama created, partly in response to overlong
delays at some polling places, recommended on Jan. 22, 2014, that states upgrade voting machines to keep pace with technological change. The commission also wants more states to adopt online voter registration and allow voting before Election Day — either in person
or by absentee ballots.
172 CQ Researcher
A decade later a bipartisan com- mission that President Obama created in part as a response to reports of overlong delays at some polling places in the 2012 presidential election says states need to upgrade voting machines again to keep pace with technologi- cal change. (See sidebar, p. 180.) The Presidential Commission on Election Administration, which released its rec- ommendations on Jan. 22, also wants more states to adopt online voter reg- istration and allow voters to cast bal- lots before Election Day — either in person or by absentee ballots.
As a new benchmark, the com- mission recommends that no voter should have to wait in line more than
30 minutes to cast a ballot. The 15- member group was cochaired by ex- perienced election lawyers from both major parties: Democrat Robert Bauer and Republican Benjamin Ginsberg, who served as chief lawyers for the Obama and Romney presidential cam- paigns, respectively, in 2012. 5
By deliberately sidestepping the politically contentious issues of voter- ID laws and the voting Rights Act rewrite, the commission is winning ap- plause for striking a bipartisan chord. “The commission’s report is an indi- cation that in a huge core [of election issues] there isn’t a split,” says David Becker, director of the elections ini- tiative at the Pew Charitable Trusts.
“There’s only a split on these high- ly volatile issues,” says Becker, for- merly an attorney with the Justice De- partment’s voting rights section. There is “wide agreement,” he adds, on “a large core of reform that could have a huge impact on our democracy.”
The partisan divide continues, however, in Pennsylvania and other states over voter-ID laws. Pennsylva- nia’s Republican governor, Tom Corbett, who signed the measure into law on march 14, 2012, says the state will ap- peal mcGinley’s ruling even as Democrats are urging him not to.
mcGinley’s ruling cheered opponents of the new crop of voter-ID laws after challenges in several other states had fallen short. The decision may have limited impact, however, because mcGinley based it on provisions of Penn- sylvania law and the state’s constitution guaranteeing equal voting rights.
The judge rejected claims by the plaintiffs, individual voters, the League of women voters and the Pennsylva- nia conference of the NAACP, that the law violated equal-protection clauses in the Pennsylvania and U.S. consti- tutions. mcGinley also found no im- permissible partisan motivation in en- actment of the law despite the remark by the Republican leader in the Penn- sylvania House of Representatives three months after the measure was adopt- ed that it would help Republican mitt Romney carry the state in November 2012. with the law blocked from tak- ing effect, Obama carried the state with about 52 percent of the vote.
voting issues are in play in courts and legislatures in several states as well as on Capitol Hill in washington. voter ID laws are being challenged in at least four other states — Kansas, North Carolina, Texas and wisconsin — while legislatures in some states are gearing up to consider tightening voter identification procedures.
“It’s definitely an ongoing battle,” says Tova wang, a senior fellow and election reform expert at the liberal
vOTING CONTROvERSIES
Alaska
Hawaii
Nearly Three Dozen States Have Voter-ID Laws
Thirty-five states have passed voter-ID laws, although some laws are not currently in effect, either because they are too new or because they are being challenged in court. State laws vary widely as to the kinds of identification accepted, with 13 states — since 2005 — requiring photo IDs and others accepting such items as a Social Security card, a birth certificate or a utility bill. State laws also vary as to voters who show up without identification. In some states, for instance, a voter can cast a ballot, but it won’t be counted until the voter returns with a qualifying ID.
N.Y.
Ohio
Texas
Va.
Minn.
Iowa
Mo.
Calif.
Nev.
Ore.
Colo.
Wash.
Idaho
Mont.
Utah
Ariz. N.M.
Wyo.
N.D.
S.D.
Okla. Ark.
La.
Ill.
Miss.
Tenn.
Ga.
Conn.
Mass.
R.I.
Maine Vt.
W.Va. N.J.
Del.
Md.
Ala.
Fla.
Wis.
Mich.
Ind.
N.C.
S.C.
N.H.
Kan. Ky.
D.C.
Neb. Pa.
Source: “Voter Identification Requirements,” National Conference of State Legisla- tures, Feb. 12, 2014, www.ncsl.org/research/elections-and-campaigns/voter-id.aspx #al
States That Have Enacted Voter-ID Laws
Feb. 21, 2014 173www.cqresearcher.com
advocacy group Demos headquar- tered in New York City.
myrna Pérez, deputy director of elec- tion programs at the Brennan Center for Justice, a liberal think tank at New York University School of Law, thinks the wave of new voter ID laws may have crested. “Our hope is that given how much outrage there has been over attempts at voter suppression, some folks will think twice before en- gaging in such efforts,” she says.
Conservative election law experts bristle at the accusation that new ID laws are aimed at voter suppression. “That’s ridiculous,” says Hans von Spakovsky, a senior fellow at the con- servative Heritage foundation in wash- ington and a former member of the federal Election Commission (fEC). “we’ve had election after election” in states with voter ID laws, von Spakovsky says, “and turnout did not go down after those laws went into effect.”
Pérez, one of Obama’s two pend- ing nominees to the U.S. Election As- sistance Commission (EAC), the agency created in 2002 to help states upgrade voting machines, also says some state legislatures are likely to move toward easing voting requirements. A new Brennan Center report finds more bills to expand voting rights introduced in state legislatures for 2014 than mea- sures to narrow access to voting. 6
von Spakovsky, who has criticized Pérez as “a radical, left-wing activist with absolutely no experience in elec- tion administration,” says civil rights litigation hampers election officials’ ef- forts to improve voting procedures. “They are constantly being sued in what I consider to be unwarranted lawsuits, particularly by civil rights or- ganizations,” he says. 7
meanwhile, the partisan divide in washington over election issues is so deep that it threatens the very exis- tence of the EAC. The four-member commission has been short of a quo- rum — which requires three members — since 2010 and has had no mem-
bers at all since 2011. Pérez and a second Obama nominee, Thomas Hicks, appear headed toward likely Senate confirmation after protracted delays, but Republicans are refusing to offer candidates for seats reserved for GOP members because they be- lieve the agency should be abolished. (See sidebar, p. 182.)
As voting and election issues per- colate in washington and around the country, here are some of the ques- tions being debated:
Should Congress revive the Vot- ing Rights Act’s preclearance re- quirement for some states and localities?
with the voting Rights Act’s pre- clearance requirement in effect, Texas was denied permission in 2012 to put into effect its strict photo-ID voting law enacted the year before. Both the
Justice Department and a three-judge federal court said the state had failed to prove that the law would not have a “retrogressive” effect on voting by Latinos and African-Americans.
when the Supreme Court effec- tively nullified the preclearance re- quirement in June 2013, however, Texas officials immediately announced they would put the law into effect. The Jus- tice Department responded just two months later with a suit, still pending, seeking to block the law under the voting Rights Act’s general prohibition — found in Section 2 — against racial discrimination.
Civil rights advocates seeking to re- instate the preclearance requirement say the Supreme Court’s decision has weakened efforts to prevent racial dis- crimination in voting. The ruling elimi- nated “a very effective mechanism of pre- venting states from enacting restrictions
Hawaii
Most States Have Expanded Voting Laws
Twenty-seven states and the District of Columbia allow voters to cast ballots before Election Day and to get an absentee ballot without giving a reason, called “no-excuse” balloting. Six states, mostly in the South, allow only early voting, and Minnesota has adopted only no-excuse absentee voting.
Ore.
Wash.
Conn.
Del.
Source: “Absentee and Early Voting,” National Conference of State Legislatures, www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx# no_excuse
States with Early Voting and No-Excuse Absentee Voting
Va. Mo.Colo.
S.C.
Ky.
Iowa Idaho
Mont.
Wyo.
N.D.
S.D.
Ill.
Wis.
Ind. Neb.
Calif.
Nev. Utah
Ariz. N.M. Ark.
Tenn.
Ga.
Kan.
Ohio W.Va.
N.C. D.C.
N.J.
Md.Okla.
Maine
Allows early voting Allows no- excuse absentee voting Allows both
Mich.
Pa.
Minn.
Fla.
Miss. Ala.
Texas La.
Alaska
N.Y. Mass.
R.I.
N.H. Vt.
174 CQ Researcher
that take away voting rights from mi- norities,” says wang, the election law expert at Demos.
The Brennan Center’s Pérez agrees. “Section 2 is an important and help- ful tool, but it does not have the scope or the functions of Section 5,” she says, referring to the preclearance provision.
Conservative groups that applaud- ed the Supreme Court’s decision see no need to revive a preclearance process. “There is no need for pre- clearance because there are powerful
remedies in the rest of the voting Rights Act that provide remedies for dis- crimination,” says the Heritage foun- dation’s von Spakovsky.
Roger Clegg, president and gener- al counsel of the Center for Equal Op- portunity, which opposes racial pref- erences, agrees. “The only difference between Section 2 and Section 5 is that under Section 5 the defendant has to prove his innocence before he’s al- lowed to make a voting change,” Clegg says. “Now, if someone doesn’t like a
voting change, they have to come into court and prove a civil rights viola- tion, which is the way every other civil rights statute works.”
The Supreme Court decision did not outlaw preclearance; it only in- validated the coverage formula set out in the act’s Section 4, which was based on minority voting turnout during the 1960s. To meet the court’s objections, sponsors of the proposed rewrite craft- ed a new formula based on recent voting Rights Act violations.
Under the proposed formula, a state would be subject to preclear- ance if it had five voting rights vio- lations within the most recent 15- year period, at least one of which was committed by the state itself. A local jurisdiction would be covered if it had three voting rights violations within the most recent 15-year peri- od or one such violation along with “persistent and extremely low mi- nority voter turnout.” Initially, only four states would be covered under
that formula: Georgia, Louisiana, mis- sissippi and Texas.
The bill also would continue to allow a court to impose a preclear- ance requirement on a jurisdiction under the so-called bail-in procedure, but under a relaxed burden of proof. The existing bail-in procedure requires proof of intentional racial discrimina- tion; the bill would allow preclearance to be imposed based on so-called dis- parate impact on minorities without proof of intentional discrimination.
Supporters of the bill say some form of preclearance is still needed. “we know that there are still efforts to restrict voting rights in our coun- try,” says Pérez.
Conservative groups disagree. “There’s no case to be made that we need Sec- tion 5 at all,” says Clegg.
The bill also includes a new pro- vision requiring jurisdictions to dis- close, among other items, any changes in voting procedures within 180 days of a federal election. And it retains the attorney general’s existing authority to assign federal observers to elections. But in a concession to political reali- ty sponsors decided to protect photo- ID laws from any need to obtain pre- clearance.
Civil rights groups supporting the bill regret the exemption for photo-ID laws. “many of them are clearly dis- criminatory and do violate the voting Rights Act and the Constitution for that matter,” says wang. from the oppo- site side, Clegg worries that even with a supposed exemption, the Justice De- partment could go after photo-ID laws by including them along with other election law changes in a Section 2 suit or a bail-in procedure.
Richard Hasen, an election law ex- pert at the University of California- Irvine Law School and publisher of the influential Election Law Blog, dis- agrees with the Supreme Court’s de- cision and calls the proposed rewrite “sensible.” He also regrets that Con- gress did not revise the coverage
vOTING CONTROvERSIES
Experienced election lawyers from both major parties, Republican Benjamin Ginsberg, right, and Democrat Robert Bauer, are co-chairs of the Presidential
Commission on Election and Administration. As a new benchmark, the commission recommends that no voter should have to
wait in line more than 30 minutes to cast a ballot.
G e tt y Im a g e s/ C Q R o ll C a ll/ To m W Ill ia m s
Feb. 21, 2014 175www.cqresearcher.com
formula after the Supreme Court raised constitutional doubts about the law in an earlier ruling in 2009.
The formula in the new bill might be upheld, Hasen says, but some other parts might not be — specifi- cally, extending the bail-in procedure to unintentional discrimination. And, in any event, Hasen doubts that Con- gress will approve the bill in the cur- rent session.
Should courts strike down voter photo-ID laws?
with Republicans controlling the legislature and governor’s office for the first time in years, Indiana became the second state in 2005 (after Geor- gia) to enact a law requiring virtual- ly all citizens to present a government- approved photo ID to vote. A legal challenge to the law, brought by De- mocrats and civil liberties advocates, reached the U.S. Supreme Court three years later.
The court’s 6-3 decision in April 2008 upheld the law after finding the state’s interest in detecting voter fraud to outweigh any burdens on voters. The ruling left the door open, how- ever, to further challenges to the In- diana law. 8
In the six years since the Supreme Court’s decision, the number of states with similarly strict photo-ID voting re- quirements has grown to 11, accord- ing to the National Conference of State Legislatures. Legal challenges have proliferated, but the issues remain much the same. Supporters and opponents disagree sharply on the need for the laws in the first place and the result- ing burdens on would-be voters as well as lawmakers’ motives in adopt- ing the measures.
Supporters of the laws depict the measures as self-evidently useful in preventing voter fraud at the polling place. To prove the point, the con- servative guerrilla filmmaker James O’Keefe had an assistant use a hid- den camera to record him posing as
Attorney General Eric Holder at Hold- er’s voting place in washington, D.C., in April 2012. O’Keeefe offered to go get identification, but the election of- ficial said there was no need.
O’Keefe stopped before asking for a ballot, but John fund, a National Review columnist and co-author with the Heritage foundation’s von Spakovsky of a book on election fraud, wrote that the episode shows that it is “comically easy to commit voter fraud in person.” 9 von Spakovsky says voter-ID laws also can prevent other kinds of fraud, including voting by noncitizens, voting under false reg- istration or casting ballots in more than one state.
Opponents of the law repeatedly emphasize the lack of evidence of any measurable amount of voter im- personation fraud. In the Pennsylva- nia case, lawyers from the office of Democratic Attorney General Kathleen Kane defended the law, but stipulat- ed that there were “no specific inci- dents of voter ID fraud” leading up to its passage.
“The only fraud uncovered in this case is the ID law itself,” witold wal- czak, legal director of the ACLU of Pennsylvania and one of the lawyers for the plaintiffs, said after the deci- sion. 10
Curtis Gans, a longtime U.S. elec- tions expert, faults advocates on both sides. “Those who say there’s no fraud are just wrong,” says Gans. “Those who say there’s huge fraud in elections are also wrong.”
Opponents also say the voter-ID laws impose significant burdens on citizens who lack the most common form of government-issued photo identification — a driver’s license — and have to obtain an ID specifical- ly for voting. “There’s going to be some segment of the population for whom it will be difficult to get the kind of identification they need,” says wang, the election law expert at Demos.
In its decision refusing to preclear the Texas voter-ID law, the three-judge federal court in washington noted that Texans in some rural counties would have to travel 100 miles or more to obtain a voter ID. moreover, the court said, the burden “will fall most heav- ily on the poor.” 11
Supporters of the law counter with evidence that they say show voter-ID laws have not hurt turnout in states where they have been enacted and that few would-be voters have actu- ally been turned away at the polls. “All the claims that they will suppress votes are just not true,” says von Spakovsky. He calls the opponents’ arguments “hysterical.”
A statistical expert who testified for Texas in the voter-ID case agrees that voter-ID laws are unlikely to signifi- cantly affect turnout. “As a practical matter you’re very unlikely to see voter-ID have substantive or demon- strable impact on aggregate turnout rates,” says Daron Shaw, an associate professor of government at the Uni- versity of Texas-Austin.
matt Baretto, an associate profes- sor of political science at the Univer- sity of washington in Seattle who has testified for plaintiffs in challenging voter-ID laws, says turnout depends on a host of factors other than iden- tification requirements. But he says the laws definitely have an impact. “There are empirically millions of eli- gible voters who don’t have photo IDs,” he says.
Baretto says supporters of voter-ID laws are making “a circular argument” when they point to the low number of would-be voters turned away. “The effect happens before you show up at the polling place,” he says. “If you don’t have the ID, you don’t go to the polling place.”
Hasen, the election law expert at UC-Irvine, discounts the claimed ra- tionales for voter-ID laws. “These laws are motivated by an interest in mod- erately depressing the vote and as a
176 CQ Researcher
means of firing up the base by accu- sations of fraud,” Hasen says. But Hasen, who favors a national voter-identification program, stops short of calling for the current laws to be struck down. “I can’t make a blanket normative state- ment about what courts ought to do,” he says.
Should states make registration and voting easier?
Arizona was already a leader among states in using technology to improve government services in 2002 when it became the first state to allow online voter registration. A decade later, about 70 percent of voter registration in the state was done online instead of with paper forms, at a considerably lower cost and with fewer errors.
Experts are enthusiastic about the new procedure, which has now
spread to around 20 states and could gain further ground now that the pres- idential commission has endorsed it. “Online registration is a no-brainer,” says election law expert Hasen. The National Conference of State Legisla- tures calls online registration “the bi- partisan trend in elections.” 12
Even so, some conservatives are raising red flags. The Heritage foun- dation’s von Spakovsky has no objec- tions to online registration to change a voter’s address or other information but opposes the practice for a voter’s initial registration. “That is a recipe for voter fraud,” von Spakovsky says. “You can’t check identity online. You can’t verify they are who they really are.”
von Spakovsky is also unenthusi- astic about early voting and flatly op- poses expanding so-called “no-excuse absentee voting” — two of the other
steps recommended by the presiden- tial commission. “I don’t have a prob- lem with more early voting if states want to devote the resources needed to do that, von Spakovsky says. “But you’re making campaigns more ex- pensive because campaigns have to mount get-out-the-vote efforts over a longer time.”
As for absentee balloting, von Spakovsky again sees the likelihood of increased fraud. “fraud most often occurs with absentee ballot voting,” he says. “They’re the easiest ones to steal.” In the book he co-authored, von Spakovsky labels absentee ballots the “tool of choice” of vote thieves. 13
Some of von Spakovsky’s concerns are seconded by Gans, the longtime U.S. voting expert. Eased rules for ab- sentee voting are “an enhancement to fraud,” Gans says. “You can buy votes and have proof that you bought some- thing. It lends itself to the pressured vote. You can resist the pressure of peers in the voting booth. It’s harder to do that in the living room.”
Gans sees no risk of increased fraud in early, in-person voting, but he also questions the supposed ben- efit of increased turnout. “There’s no evidence it enhances turnout,” Gans says. The experience in states with early voting so far has been mixed, he says. As for eased absentee voting, Gans says the evidence indicates that the practice actually hurts turnout.
Becker, the Pew Trusts election ex- pert, firmly rejects von Spakovsky’s fears of fraud from online registration. “There isn’t a shred of evidence to support that argument,” Becker says.
“Online registration offers something paper registration does not,” Becker continues. The process requires per- sonal data from the voter that can be computer-checked against motor ve- hicle records or other government in- formation. “That’s something you can’t do with a paper form,” Becker says.
Pew has not studied early voting in detail, but Becker sees some benefits.
vOTING CONTROvERSIES
Allows full online registration
Allows limited online registration
Alaska
Hawaii
Online Registration Gains in Popularity
Nineteen states have legislation allowing online voter registration, and six states offer limited online voter registration. For example, registered voters in New Mexico and Ohio can update an existing registration record online, but new applications still must be made on paper.
N.Y.
Ohio
Texas
Va.
Minn.
Iowa
Mo.
Calif.
Nev.
Ore.
Colo.
Wash.
Idaho
Mont.
Utah
Ariz. N.M.
Wyo.
N.D.
S.D.
Okla. Ark.
La.
Ill.
Miss.
Tenn.
Ga.
Conn.
Mass.
R.I.
Maine Vt.
W.Va. N.J.
Del.
Md.
Ala.
Fla.
Wis.
Mich.
Ind.
N.C.
S.C.
N.H.
Kan. Ky.
D.C.
Neb. Pa.
Source: “Online Voter Registration,” National Conference of State Legislatures, www.ncsl.org/research/elections-and-campaigns/electronic-or-online-voter- registration.aspx
States That Allow Online or Limited Online Registration (as of February 2014)
Feb. 21, 2014 177www.cqresearcher.com
“The research seems to support the view that early voting can reduce some of the burdens on Election Day,” he says. And he says there is no evidence of in- creased risk of in-person voter fraud given the use of the same check-in pro- cedure as on Election Day itself.
In presenting the commission’s re- port, co-chairs Bauer and Ginsberg said elections ought to be viewed as a problem of professional administration and voters in effect as the govern- ment’s customers. “There are a num- ber of things that go to helping the voter experience and the way that they vote, an issue that both Republicans and Democrats agree on,” Ginsberg said on the “PBS NewsHour,” with Bauer seated beside him. 14
Liberal advocacy groups generally applauded the commission’s recom- mendations. michael waldman, president of the Brennan Center, said in a pre- pared statement that the commission’s report “marks a significant advance in the way we think about voting.”
Some liberal groups, however, also had reservations. wang, the reform ex- pert with Demos, is enthusiastic about online registration, but adds, “It’s not going to do very much for the segments of the population who are left out.” Katherine Culliton-Gonzalez, director of voter protection at the New York-based Advancement Project, which is litigating voter-ID law challenges in Pennsylvania and wisconsin, calls the commission’s report “excellent” but complains it does not address issues of racial discrimina- tion in voting. She favors a national “best practices” law that would prohibit any voting or election procedures shown to have a discriminatory impact on racial or ethnic minorities.
The commission also underscored what it calls the “impending crisis in voting technology.” voting machines bought 10 years ago are about to reach the end of their useful lives, the re- port says.
Despite praise for the commission’s report, whether its recommendations
are adopted depends on the actions of hundreds of state and local elec- tion officials. Costs also will be an issue for some of the recommenda-
tions, but Becker is optimistic that election administrators will make sure money is not a problem for some changes.
A demonstrator in Columbia, S.C., on Feb. 26, 2013, urges the U.S. Supreme Court not to nullify Section 5 of the Voting Rights Act, which requires South Carolina and other states with histories of discriminatory voting practices
to get federal preclearance before approving new voting laws. In June 2013, however, the high court effectively nullified the requirement. A bipartisan bill
would reimpose preclearance. Civil rights and civil liberties groups strongly support the proposed rewrite; some leading Republicans oppose it,
as do some conservative election law experts and advocates.
G e tt y Im a g e s/ R ic h a rd E lli s
178 CQ Researcher
vOTING CONTROvERSIES
“I’m already hearing discussions [from officials] trying to find ways to have the best of both worlds,” Beck- er says. “You can save money and im- prove performance. It doesn’t have to cost money.”
BACKGROUND ‘Forces of Democracy’
v oting rights were very limited whenthe United States was founded and were determined by individual state governments, which for the most part allowed suffrage only to proper- tied white men. As states began to loosen wealth and property require- ments in the 19th century, the french commentator Alexis de Tocqueville pre- dicted that “forces of democracy” would result inexorably in an expanding suf- frage. The further gains in voting rights — for freed slaves, immigrants, women, and young people — were won, how- ever, only after long and hard-fought battles in the courts, Congress, state legislatures and streets. 15
States began to dismantle colonial era property qualifications for voting soon after the Revolution. As the na- tion’s population grew, states eased or eliminated the laws rapidly in the 19th century, often in response to demands by the new immigrants. Despite the liberalized voting rules, however, 12 states continued to bar “paupers” from voting until the late 1800s.
African-American slaves were not allowed to vote, and so-called freed- men were allowed to vote in only five Northern states: massachusetts, New Hampshire, New York, Rhode Island and vermont. New York’s property qualification, however, lim- ited the impact of its provision. The 13th Amendment, ratified in 1865, freed the slaves but did not require
states to grant them the right to vote. Nor did the 15th Amendment, nar- rowly ratified in 1870, which only prohibited states from using “race, color, or previous condition of servi- tude” to restrict whatever voting rights they granted in general.
Supreme Court decisions in the 1870s blunted enforcement of the 15th Amendment; a decade later, partisan divisions doomed a Republican-backed bill in Congress to authorize federal monitoring of state elections. Left alone, Southern and border states respond- ed with an array of measures and strat- agems to keep African-Americans from voting, including literacy tests and poll taxes. So-called grandfather clauses al- lowed whites to bypass such require- ments if they could show that their grandfathers had voted. In the same era, Northern and western states threw up barriers to voting to immigrants.
women’s suffrage, deliberately omit- ted from both the 14th and 15th Amend- ments, made little headway until west- ern territories and states began allowing women to vote in the 1890s and early 1900s. By the 1910s, both parties sup- ported women’s suffrage, but Congress approved the eventual 19th Amend- ment only after an initial defeat and a special session convened by Presi- dent woodrow wilson in 1919. Ratifi- cation was completed on Aug. 18, 1920, on the strength of a single-vote mar- gin in the Tennessee House of Rep- resentatives.
women faced no special barriers to voting after ratification of the 19th Amendment, but blacks continued to be denied voting rights in practice in many Southern and border states. The Supreme Court in 1944 gave blacks an important victory by prohibiting all- white Democratic primaries or con- ventions in the one-party South. Lit- eracy tests and poll taxes remained in place, however, even as the civil rights movement made progress on other fronts, including racial desegregation in schools and public accommodations.
Physical intimidation and violence also were used in the South to keep blacks from voting, notably on “Bloody Sunday” (march 7, 1965) when police in Selma, Ala., used night- sticks and tear gas to disperse a vot- ing rights march as it set out toward the state capital in montgomery. Na- tional outrage over the incident pro- vided the catalyst for President Lyn- don B. Johnson to propose and Congress to pass the strongest feder- al voting rights law in history. The vot- ing Rights Act of 1965 prohibited dis- crimination in voting nationwide and imposed the preclearance requirement on four Deep South states with his- tories of racial discrimination in vot- ing: Alabama, Georgia, Louisiana and mississippi. Upheld by the Supreme Court less than a year later, the act helped increase black registration by 1970 to more than 50 percent in all Deep South states. 16
Congress reauthorized the voting Rights Act in 1970 and included a provision extending the right to vote to 18-year-olds in all federal, state and local elections — a response to viet- nam war-era student activism. A con- stitutional challenge resulted in a split Supreme Court decision later that year limiting the provision to federal elec- tions. The prospect of different voting rolls for federal versus state elections prompted state election administrators to join in urging adoption of what became the 26th Amendment, setting the minimum voting age at 18 nation- wide. 17
Congress reauthorized the act again in 1975 and expanded the preclear- ance provision to jurisdictions with low voting rates by “language minori- ties.” The provision generally required bilingual voting materials in jurisdic- tions with significant language mi- norities and extended preclearance re- quirements to Texas and parts of six other states: Alaska and South Dakota (Native Americans) and Arizona, Cali-
Continued on p. 181
Feb. 21, 2014 179www.cqresearcher.com
Chronology 1960s-1970s Voting Rights Act changes elec- tion rules in South, elsewhere.
1965-1966 voting Rights Act passed by Con- gress, signed by President Lyndon B. Johnson (Aug. 6, 1965); upheld by Supreme Court (march 7, 1966); preclearance provision (sec- tion 5) requires four Deep South states to get permission to make any voting, election law changes.
1970 Congress reauthorizes voting Rights Act, with preclearance provision.
1971 Twenty-Sixth Amendment guaran- tees 18-year-olds right to vote.
1975 Congress reauthorizes voting Rights Act; adds provision to protect “language minorities;” extends pre- clearance provision.
•
1980s-1990s Voting Rights Act reauthorized; “motor voter” bill adopted.
1980 Supreme Court limits nationwide voting Rights Act provision (section 2) to intentional discrimination (April 22).
1982 voting Rights Act reauthorized for 25 years, amended to prohibit “disparate impact” discrimination (no proof of intent required).
1992 President George H.w. Bush vetoes National voter Registration Act — the so-called motor voter law — to require states to allow voter
registration at driver’s license offices, welfare agencies (July 2).
1993 with Democrat Bill Clinton in white House, Congress again passes Na- tional voter Registration Act; signed by Clinton (may 20); mandatory provision takes effect 1995.
•
2000s Voting proce- dures become partisan battle- ground.
2000 Supreme Court ends disputed re- count of presidential ballots in florida; ruling in Bush v. Gore en- sures Electoral College victory for George w. Bush (Dec. 12).
2002 Arizona is first state to allow voter registration online. . . . Help America vote Act provides federal money, authorizes federal standards for upgrading election technology (signed Oct. 29).
2005 Georgia, Indiana pass new voter-ID laws requiring government-approved photo identification to cast ballots.
2006 Congress reauthorizes voting Rights Act in near-unanimous votes; pre- clearance provision extended 25 years (signed July 27). . . . missouri Supreme Court throws out state voter-ID law (Oct. 16).
2008 Supreme Court upholds Indiana voter photo ID law (April 28). . . . Senate race in minnesota between Republican incumbent Norm Cole- man and Democratic challenger Al franken goes to recount; after
legal challenge, franken declared winner in July 2009.
2009 Supreme Court skirts challenge to voting Rights Act; warns Congress to consider revising preclearance coverage formula (June 22); Con- gress fails to act.
2011 Eight states adopt or strengthen voter ID laws; five others vetoed by Democratic governors. . . . U.S. Election Assistance Commission is left with no commissioners after re- maining two members’ terms expire.
2012 federal court delays South Carolina voter ID law until after 2012 elec- tions (Oct. 10). . . . minnesota vot- ers reject voter ID law (Nov. 6).
2013 Supreme Court throws out voting Rights Act’s coverage formula for preclearance (June 25); Senate, House Judiciary Committees hold hearing on restoring provision (July 17, 18). . . . Texas restores voter ID law; Justice Department sues to block (Aug. 22). . . . Justice Department sues to block North Carolina voter ID law, due to take effect in 2016 (Sept. 30). . . . Tennessee Supreme Court up- holds voter ID law (Oct. 17).
2014 voting Rights Act rewrite intro- duced; bill would impose preclear- ance on four states (Jan. 16). . . . State court judge throws out Penn- sylvania voter ID law (Jan. 17). . . . Presidential Commission on Election Administration calls for online regis- tration, expanded early voting, elec- tion technology upgrades (Jan. 22). . . . wisconsin Supreme Court to hear arguments on voter-ID law (feb. 25); ruling in federal court case awaited.
180 CQ Researcher
vOTING CONTROvERSIES
B arely 10 years ago, state and local election adminis- trators used billions of federal dollars to upgrade the machines used to tabulate election results. But in today’s
world of high-tech products, a decade is a lifetime — or maybe two. So the state-of-the-art voting machinery bought before the smartphone and computer tablet era is now sadly out of date.
The situation amounts to an “impending crisis in voting technology,” according to the Presidential Commission on Elec- tion Administration. machines purchased 10 years ago “are now reaching the end of their natural life cycle,” the com- mission said in its report issued Jan. 22, “and no compara- ble federal funds are in the pipeline to replace them.” Be- sides fiscal constraints, election administrators face other obstacles in upgrading vote-counting technology, including out-of-date standards and a relatively small number of manu- facturers. 1
“Everything doesn’t last as long as it used to,” says Doug Lewis, executive director of the National Association of Elec- tion Officers. “Yet we’ve been locked into this thinking that election equipment should last eight to 10 to 12 years.”
As Lewis recalls, the clunky lever machines that date from the late 19th century and remained in use through the 1950s and ’60s are now museum pieces — although a few were pulled out of storage in the New York City mayoral primary in September. All but gone as well are the punch-card voting systems of the sort that malfunctioned so critically in florida’s presidential election in 2000.
The Help America vote Act, enacted in 2002 in response to the Bush v. Gore fiasco, provided federal funds for state and local election agencies to replace the lever and punch-card de- vices with optical-scan or touch-screen machines. The act also created the Election Assistance Commission (EAC) and autho- rized it to establish voluntary certification standards for states to use in purchasing voting machines.
In its report, the presidential commission quoted state and local election officials as saying that available machines no longer meet their current needs and that voting machine man- ufacturers sympathize with the officials’ problems. But manu- facturers and election agencies alike are hampered by EAC standards that have not been updated since 2005, in part be- cause of the partisan impasse over the commission’s role that has left the four-member commission without a quorum since 2010. Republicans in Congress want to abolish the EAC and are refusing to designate candidates for the two seats reserved for GOP nominees.
Election technology reformers envision a new world of tablet-like voting machines that 21st century voters will see as thoroughly familiar. “The device on which you record your choice would look like something you use every day,” ex-
plains David Becker, director of the Pew Charitable Trusts’ elections initiative.
The machines could use off-the-shelf software that could be updated without replacing the machines themselves. In addi- tion, the machines could be used for multiple purposes instead of being stored in warehouses in two-year cycles.
for now, however, the EAC standards — voluntary but adopt- ed by many states — are designed for the self-contained vot- ing systems brought into service a decade ago. And the pres- idential commission said concerns about security among the computer science community have slowed manufacturers’ in- terest in innovation.
Inevitably, cost is also a factor. “These things are not free,” says Becker. Lewis says a new voting system can cost from $2 million for a small locality to $240 million for a major metropolitan jurisdiction.
Lewis laments that the United States tends to stay “behind the curve” on voting technology. “In the rest of America, we go for the latest and greatest technology,” he says. “In terms of voting we’re stuck in the past.”
— Kenneth Jost
1 “The American voting Experience: Report and Recommendations of the Presidential Commission on Election Administration,” Jan. 22, 2014, pp. 11-13, 62-67, www.supportthevoter.gov/files/2014/01/Amer-voting-Exper-final-draft- 01-09-14-508.pdf. for coverage, see martha T. moore, “Digital voting machines are aging out of use,” USA Today, feb. 3, 2014, p. A4.
Outmoded voting machines Pose ‘Impending Crisis’ Presidential commission says current technology no longer meets election needs.
A woman votes on Nov. 6, 2012, in Manassas, Va. Voting machines were upgraded nationwide a decade ago, but the Presidential Commission on Election Administration says that they are now out of date and that there are
no federal funds designated to replace them.
A F P /G e tt y Im ag e s/ K ar e n B le ie r
Feb. 21, 2014 181www.cqresearcher.com
fornia, florida and New York (His- panics). As the decade ended, how- ever, the Supreme Court intervened with a contentious decision that threat- ened to blunt the usefulness of the act in expanding minorities’ rights in voting and elections.
Election Mechanics
C ongress and two Republican pres-idents — Ronald Reagan and George w. Bush — approved long extensions and significant expan- sions of the voting Rights Act in 1982 and 2006, respectively. Throughout that period, the Justice Department increasingly used the act’s preclear- ance provision to affect election pro- cedures in covered jurisdictions. mean- while, Congress twice turned to improving election mechanics: first with the Democratic-backed 1993 law to facilitate voter registration and then in 2002 with a bipartisan bill enacted after the Bush v. Gore con- troversy to establish and help states meet minimum standards for admin- istration of elections.
Civil rights supporters were disap- pointed in 1980 when the Supreme Court ruled that the voting Rights Act’s nationwide provision, Section 2, pro- hibited only intentional racial discrimi- nation. 18 After maneuvering between the Democratic-controlled House and Republican-controlled Senate, Congress expanded the definition of discrimi- nation by prohibiting any voting prac- tice that had the effect of denying a racial, ethnic or language minority an equal opportunity to participate in the political process.
The 1982 reauthorization also ex- tended the preclearance provision, Section 5, for another 25 years. Con- gress in 1992 extended the bilingual election assistance provisions — due to expire that year — until 2007 as well.
The Supreme Court blessed Section 2’s expanded definition of racial dis- crimination in a 1986 decision that ap- plied the provision to so-called “vote dilution” — defined as any election practice that reduced the ability of a cohesive racial or ethnic minority to elect candidates of their choice. 19 The Justice Department responded by ap- plying this expanded definition to a growing number of election practices, both in suits initiated under Section 2 and in preclearance review under Sec- tion 5.
As one important consequence, the Justice Department began pressing states in the South to draw legislative and congressional districts with ma- jority African-American or Latino pop- ulations to facilitate election of mi- nority legislators. The Supreme Court in the 1990s cut back on this use of the voting Rights Act, however, by lim- iting the extent to which race could be considered in drawing district lines. But the expanded definition of racial discrimination also allowed the Justice Department to require preclearance of seemingly minor ground-level voting changes — such as moving a polling place away from a location convenient to minority voters.
In the meantime, Democrats in Congress had succeeded in enacting the so-called motor voter bill, formal- ly the National voter Registration Act. The law stemmed from efforts of two liberal college professor activists, frances fox Piven and Richard Cloward, who thought it possible to increase voter turnout by allowing registration at motor vehicle departments or other government agencies.
President George H. w. Bush ve- toed the Democratic-backed legisla- tion on July 2, 1992. with Democrat Bill Clinton in the white House, how- ever, the Democratic-controlled Con- gress quickly passed the measure again and Clinton signed it into law on may 20, 1993. About half the states already allowed registration through
motor vehicle departments, but Re- publicans arguing against the bill warned the measure would be ex- pensive and invite fraud.
Congress’s second major initiative on the mechanics of elections fol- lowed the embarrassing spectacle of florida’s disputed recount in the Bush v. Gore election in 2000. 20 Bush’s 537- vote victory in the election-deciding state of florida was certified and then left standing by the U.S. Supreme Court after a month of recounts and litigation that highlighted poorly designed ballots and inconsistent standards for tallying disputed votes. Responding to the con- troversy, a privately sponsored commis- sion co-chaired by former presidents Jimmy Carter and Gerald R. ford issued a report in July 2001 calling for, among other changes, creation of a new fed- eral agency to oversee federal respon- sibilities for nationwide elections. 21
Republicans and Democrats argued about provisions of the Help America vote Act for more than a year until fi- nally achieving strong bipartisan ma- jorities for the version that Bush signed into law on Oct. 29, 2002.
As enacted, the law consigned punch card and lever voting machines to the waste heap and authorized $3.9 bil- lion in federal money to help states and localities replace machinery, train poll workers and computerize regis- tration lists. New identification re- quirements led major Latino groups and the American Civil Liberties Union (ACLU) to oppose the final bill, but the act required election officials to establish procedures for would-be vot- ers challenged at the polls to cast pro- visional ballots and to have their votes counted after presenting sufficient evi- dence later.
Congress returned to the voting Rights Act in 2005 as the act’s pre- clearance provision was set to expire the next year. fearing potential review by the Supreme Court, the House and Senate judiciary committees assembled up-to-date evidence on, among other
Continued from p. 178
182 CQ Researcher
factors, black vs. white turnout and registration in covered and uncovered jurisdictions. The evidence was am- biguous: African American turnout and registration had seemingly increased to comparable levels as whites; and the Justice Department was denying fewer requests to preclear election changes — only 92 objections in the previous 10 years.
Even so, the political difficulties en- tailed in rewriting the coverage for- mula led Congress in the end to leave it unchanged and extend the pre- clearance provision for another 25 years. Lawmakers in both chambers approved the bill by overwhelming margins — 390-33 in the House, 98-0 in the Sen- ate — and President Bush signed it into law in a photo-op ceremony on July 27, 2006. 22
‘Voting Wars’
T he bipartisan support for extend-ing the voting Rights Act was not enough to deflect the constitutional challenge to the law or prevent the Supreme Court’s eventual decision to neuter the preclearance provision by throwing out the act’s coverage for- mula. In the meantime, voting con- troversies intensified as Republicans pushed and Democrats resisted new state voter-ID laws, eventually chal- lenging them in court. In addition, some high-profile close elections were settled only after contentious and liti- gious recounts akin to Bush v. Gore. for his book chronicling the decade, election law expert Hasen chose an apt title: The Voting Wars. 23
Laws requesting voters to present identification were on the books in 14 states as of 2001 but were lightly en- forced, according to the National Con- ference of State Legislatures. 24 would- be voters without identification were allowed to cast ballots after signing an affidavit or having an election official or other voter vouch for their identi- ty. The strict laws pioneered by Geor- gia and Indiana in 2005 demanded a photo ID and required anyone with- out one to cast a provisional ballot that would be counted only if the cit- izen returned to the elections office with proper identification within a matter of days.
Indiana’s law survived a legal chal- lenge intact, but Georgia eased its en- forcement provisions a bit to win pre- clearance from the Justice Department
vOTING CONTROvERSIES
A rizona, Georgia and Kansas faced an unusual problem when they asked the federal Election Assistance Com- mission (EAC) for permission to revise a federally pre-
scribed voter registration form to include a state law require- ment for proof of citizenship. The problem: the EAC had no Senate-confirmed commissioners to act on the request, the re- sult of a partisan impasse that has left the commission with- out a quorum for nearly four years and with no members at all for two.
when Congress created the four-member panel in 2002, it specified that the House and Senate majority and minority lead- ers should each nominate a commissioner to be appointed by the president. Republicans have refused to designate candidates since 2010 as commissioners’ terms have expired and have been able to thwart Senate confirmation of Democratic nominees.
The Senate is trying to ease the impasse somewhat by get- ting ready to move the nominations of two Democratic voting- rights advocates toward a floor vote. But even if Thomas Hicks and myrna Pérez are confirmed, the EAC will still be shy of the three members required for a quorum as long as Repub- licans refuse to submit candidates for the two seats reserved for GOP nominees.
House Republicans have waged a long campaign to abol- ish the agency, created in the Help America vote Act, passed in 2002 after the Bush v. Gore presidential election fiasco. GOP lawmakers, led by Rep. Gregg Harper of mississippi, contend
that the EAC has accomplished its original goal of helping states fund new voting technology. Harper calls the agency, with about 30 employees and an $11 million operating budget in 2013, a “bloated bureaucracy.” 1
Democrats say the commission is still needed. when the House Committee on Administration voted to kill the agency on June 5, the panel’s top Democrat, Pennsylvania’s Robert Brady, said the commission has “an important, valuable role” and was “worth reauthorizing.”
Hicks, senior elections counsel for the House Administra- tion Committee and a former staffer with the public interest group Common Cause, was nominated by President Obama in march 2010 on the recommendation of House Democratic Leader Nancy Pelosi. Pérez, senior counsel at the Brennan Cen- ter for Justice at New York University School of Law, was nom- inated in June 2011 on the recommendation of Senate Demo- cratic Leader Harry Reid.
After his reelection, Obama renominated Hicks and Pérez on June 11, 2013, and they appeared before the Senate Rules Committee for a second confirmation hearing on Dec. 11. As acting chairman, Sen. Angus King, an independent from maine who caucuses with Democrats, said both were “well qualified.” The committee’s top Republican, Sen. Pat Roberts of Kansas, also acknowledged the nominees’ qualifications, but reiterated the GOP goal of abolishing the agency. “The EAC has fulfilled its purpose and should be eliminated,” Roberts said. 2
Leadership vacuum Stymies Election Agency Partisan infighting leaves Election Assistance Commission lacking a quorum.
Feb. 21, 2014 183www.cqresearcher.com
and eventually a favorable ruling in federal court. meanwhile, however, the missouri Supreme Court struck down a photo-ID law just as it was about to take effect for the November 2006 election.
Legislative activity spiked again in 2011 as eight states adopted new or strengthened identification require- ments. In five other states, however, Democratic governors vetoed photo- ID bills. And in November 2012 min- nesota voters rejected a proposed con- stitutional amendment that would have required a photo ID to cast a ballot; the measure failed by about 100,000 votes out of nearly 3 million cast.
In the meantime, minnesota had provided the country a rerun of sorts of the Bush v. Gore battle with its No- vember 2008 contest between incum-
bent Republican Sen. Norm Coleman and his Democratic challenger, former television comedian Al franken. As Hasen relates the story, Coleman held a 725-vote lead after an initial Elec- tion Night tabulation. The margin fell to 215 votes after a statewide canvass completed on Nov. 18 — so narrow as to trigger a mandatory recount under state law. After counting more than 900 wrongly rejected absentee ballots, the state’s canvassing board certified franken the winner by 225 votes, but Coleman contested the election in state court.
The minnesota Supreme Court ruled for franken, allowing him to be sworn in on July 2009. Hasen comments that the minnesota rivals appeared to change positions as the vote count shift- ed. Coleman initially called for “a heal-
ing process” after the close vote before launching his court challenge once franken was certified the winner. for his part, franken switched from a “count every vote” position while he was behind to a “strict compliance” stance once he had gained the lead. 25
By franken’s swearing in, the Supreme Court had added to election- related issues by sending a strong sig- nal to Congress that the voting Rights Act might be constitutionally defective. The court’s June 22, 2009, decision in Northwest Austin Municipal Utility Dis- trict No. 1 v. Holder stemmed from a challenge brought by a local utility dis- trict in suburban Austin, Texas, that chafed under the Justice Department’s preclearance review of the relocation of a polling place. The utility district argued that Congress was wrong to
The EAC rankled Republicans when a draft staff report pre- pared in 2006 cast doubt on allegations from GOP lawmak- ers about voting place fraud, which GOP lawmakers cite as the reason for stricter voter photo-ID laws. The draft report stated that there was “widespread but not unanimous agree- ment that there is little polling place fraud.” The commission revised the final report, however, to state, in its executive sum- mary, that “there is a great deal of debate on the pervasive- ness of fraud.” 3
Election law watchers say the lack of leadership at the top has combined with turnovers in the major staff positions of ex- ecutive director and general counsel to bring the EAC to a vir- tual standstill. Among other issues, the lack of a quorum is preventing the adoption of new certification standards for vot- ing machines; the new standards are needed, according to the just-released report by the Presidential Commission on Election Administration, to allow replacement of technologically obso- lescent equipment. 4
Arizona, Georgia and Kansas encountered the agency’s lead- ership vacuum when they asked for permission to revise the federally prescribed voter registration form for federal elec- tions to include instructions to provide proof of U.S. citizen- ship to vote in state elections. The commission’s 46-page mem- orandum rejecting the request, issued on Jan. 17, was signed by Alice miller as chief operating officer and acting executive director. 5
The leadership vacuum will continue for at least a little while. The Senate Rules Committee was due to vote on the Hicks and Pérez nominations on feb. 12, but had to put off the action because of the lack of a quorum until after the Sen- ate’s Presidents Day recess. with a Democratic majority, the committee is certain to approve the nominations, but Republi- cans could use a number of parliamentary maneuvers to delay or possibly prevent a floor vote.
— Kenneth Jost
1 See Deborah Barfield Berry, “House panel OKs ending Election Assistance Commission,” USA Today, June 5, 2013, www.usatoday.com/story/news/poli tics/2013/06/04/house-panel-approves-eliminating-election-commission/2389737/; other background drawn from story. See also U.S. Election Assistance Com- mission, “2013 Activities Report,” www.eac.gov/assets/1/Documents/2013%20 Activities_Report%20_fINAL%20website%20version,%201-31-14.pdf. 2 The 59-minute hearing can be viewed at http://tinyurl.com/l9b8pfj. 3 See Ian Urbina, “U.S. Panel Is Said to Alter finding on voter fraud,” The New York Times, April 11, 2007, p. A6. 4 See “The American voting Experience: Report and Recommendations of the Presidential Commission on Election Administration,” Jan. 9, 2014, pp. 62-66, www.youtube.com/watch?v=xCUmXpU6N3k. 5 “memorandum of Decision Concerning State Requests to Include Additional Proof-of-Citizenship Instructions on the National mail voter Registration form,” U.S. Election Assistance Commission, Jan. 17, 2014, EAC-2013-0004, www.eac.gov/assets/1/Documents/20140117%20EAC%20final%20Decision%20 on%20Proof%20of%20Citizenship%20Requests%20-%20fINAL.pdf.
184 CQ Researcher
vOTING CONTROvERSIES
subject Texas and other Southern states to preclearance requirements long after they had dropped the blatantly discriminatory practices in effect be- fore 1965.
Conservative justices appeared sym- pathetic to the position in oral argu- ments, but the court skirted the issue in an 8-1 decision written by Chief Justice John G. Roberts Jr. The ruling merely gave local jurisdictions a greater opportunity to “bail out” of the preclearance provision. Roberts added, however, that the preclearance re- quirement raised “serious constitution- al questions.” 26
Congress’s failure to rewrite the cov- erage formula set the stage for a new challenge, this one by Shelby County, Ala., a predominantly white county in the Birmingham metropolitan area. As in the earlier case, a three-judge feder- al district court upheld the constitu- tionality of the preclearance require- ment, but the Supreme Court’s 5-4 decision on June 26, 2013 — again writ- ten by Roberts — faulted Congress for an “irrational” decision to subject states
and local jurisdictions to preclearance based on 40-year-old statistics.
with no coverage formula, the pre- clearance provision was reduced to a dead letter. vermont’s Sen. Leahy among
others vowed to revive the provision, and committee hearings were held within the month in both the House and Senate. By the end of the year, however, lawmakers working on the issue were still talking behind the scenes about how to fashion a bill that might command bipartisan support in the Republican-controlled House and Democratic-controlled Senate.
CURRENT SITUATION Court Cases
C ivil rights groups are voicing op-timism about legal challenges to
state voter-ID laws, but supporters of the measures believe they will survive court tests.
with legal challenges pending in five states, opponents of photo-ID laws won the most recent round in Pennsylvania and are hopeful as suits in wisconsin reach critical stages. Judges have yet to rule on pending suits in Texas and North Carolina brought sep- arately by civil rights groups and the U.S. Justice Department or in a re- cently filed private suit in Kansas.
In wisconsin, a federal judge is ex- pected to rule soon on a challenge to the state’s photo-ID law after presid- ing over a two-week trial in Novem- ber. In the meantime, the wisconsin Supreme Court decided to hear con- solidated cases brought by the League of women voters and the state NAACP on feb. 25 after a state appellate court upheld the law in one of the suits.
In Pennsylvania, lawyers for Gov. Corbett filed a motion before Judge mcGinley on Jan. 27 urging him to reconsider his decision ruling the state’s law unconstitutional. The lawyers argued that problems in mak- ing voter-ID cards available did not require the law to be struck down. But they also said that if mcGinley does not change his mind, the law should be put on hold to avoid con- fusion in this year’s primary and gen- eral elections.
The Justice Department and civil rights groups are separately challeng- ing photo-ID requirements in both North Carolina and Texas. The Texas law will be in effect in the march 4 statewide party primaries because the Supreme Court’s decision on the vot- ing Rights Act lifted the need for fed- eral preclearance. The NAACP and mex- ican American Legislative Caucus sued the state in federal court in Corpus Christi challenging the photo-ID re- quirement in September, the month after the Justice Department had filed its similar suit in the same court.
Continued on p. 186
Voters fill out ballots at a polling station in San Francisco on Nov. 6, 2012. Douglas Lewis, executive director of the National Association of Election
Officials, sees a trend toward liberalizing voter access through online registration and early voting. Online registration “is coming one way or another,” he says.
Giving voters more opportunities to cast ballots early is “also of value.”
G e tt y Im a g e s/ B lo o m b e rg / P a u l M o rr is
no
Feb. 21, 2014 185www.cqresearcher.com
At Issue: Should Congress pass the proposed Voting Rights Act rewrite?yes
yes SEN. CHRIS COONS, D-DEL. MEMBER, SENATE JUDICIARY COMMITTEE
WRITTEN FOR CQ RESEARCHER, FEBRUARY 2014
w e’ve come a long way since the voting Rights Actwas adopted in 1965, but we’re not yet where weneed to be. Discrimination still exists, and we’ll never stop it by pretending it doesn’t.
The Supreme Court’s Shelby County v. Holder decision last June left a dangerous gap in our voter protections by gutting the preclearance system that allowed the Department of Justice to stop proposed discriminatory voting changes before they take effect. Since then, numerous jurisdictions have implement- ed voting changes that the preclearance system would have blocked. more are on the way, and together these changes serve as a sad reminder that voting Rights Act protections are still critically necessary.
The voting Rights Amendments Act of 2014 will restore the vitality of the law in jurisdictions where aggressive voting rights enforcement is still needed. The Supreme Court threw out the old formula for deciding which jurisdictions were subject to preclearance because it was based on 50-year-old data. This bill would base preclearance on a formula that looks clearly and soberly at the modern challenges facing voters.
Detractors criticized the old preclearance formula for applying only to the old South — even jurisdictions that no longer dis- criminate — while not covering states and counties in which race- or language-based discrimination has emerged over the past 50 years. This bill responds to those charges, as well. Juris- dictions with a history of discrimination but that no longer pro- pose and enforce discriminatory practices will now no longer be subject to preclearance. Jurisdictions that enact new, discriminato- ry voting laws will be eligible for preclearance, whether or not they have been subject to preclearance in the past.
This bill also makes voting rights and elections more trans- parent, ensuring the public has access to basic information about polling places, election law changes and redistricting, so voters can feel confident elections are fair.
Under the leadership of Judiciary Chairman Patrick Leahy, Sen. Dick Durbin and Reps. James Sensenbrenner, John Cony- ers and John Lewis, we’ve crafted a bipartisan bill designed to be both effective and able to pass this Congress. It’s practical, can become law and would survive future legal scrutiny.
It is a modern voting rights bill to confront modern voting rights challenges. It’s time for Congress to pass this legislation and restore our democracy’s fundamental promise of free and fair access to the ballot box.no
REP. LYNN WESTMORELAND, R-GA. MEMBER, COMMITTEE ON FINANCIAL SERVICES, TEA PARTY CAUCUS
WRITTEN FOR CQ RESEARCHER, FEBRUARY 2014
e veryone agrees that the significant burdens imposed bypreclearance under the voting Rights Act were des-perately needed when they were passed in 1965. But that was nearly 50 years ago. Since its passage, we have seen dramatic changes across the country, especially in the South, that point to the fact that the law needed updating. Georgia has four African-American members of Congress and some of the highest minority voter turnout in the country. In fact, in November 2012, a higher percentage of registered African- American women turned out to vote than registered white women or men.
Because of the major changes since the dark days of the 1960s, the Supreme Court’s ruling in Shelby County v. Holder last year that the preclearance formula used under Section 5 of the voting Rights Act was unconstitutional should not have come as a surprise. This law used outdated information to set the formula for preclearance and punished certain areas of the country for the sins of their fathers and grandfathers. To put it in perspective, a person who became eligible to vote the year the law was adopted became eligible for medicare last year.
I pushed hard to update the coverage formula — the por- tion the court struck down — when the law was reauthorized in 2006. Unfortunately, my pleas fell on deaf ears. I applaud my colleague from wisconsin Rep. Jim Sensenbrenner for at- tempting to update the law, but unfortunately cannot agree with his method.
first and foremost, the proposed update doesn’t change the scope of preclearance, which is a huge burden to jurisdictions and was a major consideration in the Supreme Court’s deci- sion on the old formula. Second, it continues to punish entire states for the actions of counties — even if the state govern- ment has no control over its counties, as is the case in Geor- gia. Third, it backdates coverage to include any election changes made since the formula was overturned last year, punishing states at a time when they didn’t realize they would be punished. fourth, it defines which races will be the “ma- jority” and “minority” for all time, even if that is not true in a particular state or jurisdiction, making the law less able to ac- count for changing conditions. finally, it disproportionately punishes states that were under the unconstitutional formula because all existing objections raised under the old preclear- ance system still count toward coverage — something that is not true for other states.
186 CQ Researcher
The department also filed suit in September challenging North Caroli- na’s new voting law, shortly after the state’s Republican governor, Pat mc- Crory, signed it into law. The govern- ment’s suit challenges not only the photo-ID requirement, but also other provisions that reduce early voting by one week, limit same-day registration and tighten procedures for counting provisional ballots. The League of women voters and the North Caroli- na branch of the A. Philip Randolph Institute had filed a comparable suit in state court just days after mcCrory signed the bill.
In Kansas, Topeka attorney Jim Law- ing is representing two voters who are challenging the photo-ID requirement in state court after being prevented from casting ballots in 2012. Secretary of State Kris Kobach, a Republican known for promoting measures to re- quire proof of citizenship for voting, moved to have the case tried in fed- eral court instead. Lawing is opposing the move; the issue is pending.
In all of the cases, state officials are defending the laws, with the wis- consin suits closest to resolution pending a possible appeal to the U.S. Supreme Court. In wisconsin, as in Indiana in 2005, the photo-ID law was adopted in 2011 shortly after Repub- licans gained control of both legisla- tive chambers and the governor’s of- fice. The law requires specified forms of government-issued photo IDs; a voter without qualifying identification may cast a provisional ballot, but must provide the right kind of identifica- tion by the end of the week for the vote to be counted.
The NAACP and League of women voters filed separate suits challenging the law and won rulings to strike it down. In the league’s case, however, an intermediate appellate court upheld the law in march 2013. with the NAACP case pending at a different appellate court, the state’s Supreme Court de-
cided to hear both cases on feb. 25. In the meantime, U.S. District Court Judge Lynn Adelman has under ad- visement a comparable suit, filed by the League of United Latin American Citizens, among other groups, after a two-week trial in November and fil- ing of briefs in December. 27
The Advancement Project is pro- viding lawyers in the Pennsylvania case and the federal case in wiscon- sin. Culliton-Gonzalez calls the ruling in Pennsylvania “a great victory” and feels optimistic about wisconsin. “I feel like the tide has turned,” she says.
The Heritage foundation’s von Spakovsky, however, feels the chal- lengers will come up short. “we’re going to have years and years of ex- perience with states, which will show that claims against [photo-ID laws] are hot air,” he says.
Shift in Legislation?
S tate lawmakers are throwing morebills into the hopper this legislative season to ease access to voting than mea- sures to make it harder to participate in elections, according to a compilation by the Brennan Center for Justice.
The center, which strongly backs moves to increase access to voting, counts 190 bills introduced in 31 states in that direction so far in 2014, nearly four times greater than the 49 bills to restrict access to voting intro- duced or carried over from the pre- vious year.
The trend is less pronounced, however, when counting only bills that the center considers “active” — based on hearings or other action. The center counts 12 “expansive” bills active in seven states on such topics as modernizing voter registration and increasing early voting opportunities. The center counts five “restrictive” bills active in four states, primarily bills to establish or tighten photo-ID re- quirements. 28
“The beginning of 2014 shows real momentum toward improving our elec- tions, both in the states and national- ly,” the center says in introducing the report. At the federal level, the report notes the introduction of the biparti- san Leahy-Sensenbrenner measure in the House and the Senate to revive the voting Rights Act provision re- quiring some states and localities to obtain preclearance before any voting or election law change.
Using the Brennan Center’s termi- nology, however, the proposed rewrite of the voting Rights Act was not “ac- tive” as of early february. Despite the photo-op introduction of the bill in January, neither the House nor Senate Judiciary panel has scheduled hear- ings on the bill.
The Heritage foundation’s von Spakovsky discounts the center’s read- ing of the political climate on the is- sues. “They’re declaring victory before they’ve achieved victory,” he says after quickly reviewing the center’s report. “I actually don’t think that they’re win- ning momentum.”
The apparent trend toward liberal- izing voting laws comes after a year when the opposing election-law camps swapped victories, according to the National Conference of State Legisla- tures. In its report for 2013, the group noted the enactment of strict photo- ID laws in Arkansas and North Car- olina offset by adoption of online reg- istration in Illinois and west virginia. virginia enacted laws adopting both practices.
Same-day registration was adopted in Colorado, the conference reports, but eliminated as part of North Car- olina’s omnibus election law overhaul. Colorado also moved toward all-mail elections, while florida restored early- voting opportunities to what had been available before a restrictive 2010 en- actment.
The head of the organization for local election administrators also sees a trend toward liberalizing voter ac-
vOTING CONTROvERSIES
Continued from p. 184
Feb. 21, 2014 187www.cqresearcher.com
cess through online registration and early voting, as recommended by the Bauer-Ginsberg election law reform commission. Online registration “is coming one way or another,” says Doug Lewis, executive director of the National Association of Election Offi- cials. Giving voters more opportuni- ties to cast ballots early is “also of value,” he says.
In addition to online registration and early voting, the Brennan Cen- ter favorably notes bills introduced in 11 states to allow students under age 18 to preregister so they are regis- tered as soon as they reach voting age. The center also applauds intro- duction of bills in seven states to make it easier for felons to regain voting rights.
The center’s list of restrictive bills include proposals to require proof of citizenship for voting, to limit voter registration mobilization drives and to make it easier to remove voters from registration rolls.
Lewis applauds the presidential commission for “a credible job of looking at a limited number of is- sues” in its report. Like the commis- sion, Lewis says long wait times are a problem for some voters—though he says 97 percent of voters cast bal- lots within 14 minutes. He says the commission’s recommendation that no voter should wait more than 30 minutes to cast a ballot is “not a bad goal,” but says election administra- tors think a one-hour limit is more achievable.
Like the commission, Lewis sees a “looming crisis” in voting technology. “The biggest danger to American elections today is state and local gov- ernments trying to force equipment to be used longer than it was de- signed for,” Lewis says. But he fears that fiscally strapped state and local governments may continue to defer needed replacement of outdated equipment.
OUTLOOK Continuing Debates
w hen Texans go to the polls inparty primaries on march 4 to choose candidates for congressional and state offices, it will be the biggest test to date of a strict voter photo-ID law. And Republicans and Democrats in Texas are differing on the likely im- pact of the law just as the two major parties disagree nationwide on the need for such measures.
Texas, second in population to California, is the nation’s biggest state to require voters to present a gov- ernment-approved photo identifica- tion before casting a ballot. Democ- rats in Texas are warning the law will confuse voters and dampen turnout, while Republicans are discounting the fears.
As evidence, GOP leaders, includ- ing Greg Abbott, state attorney gen- eral and leading contender for the party’s gubernatorial nomination, point to the turnout in the November 2013 statewide balloting on constitutional amendments. with the ID law in ef- fect, turnout averaged about 1.1 mil- lion votes on nine measures, around 50 percent higher than the average turnout of 672,000 in a comparable election two years earlier with 11 amendments to be voted on.
Still, the Democratic majority on the Dallas County Commissioners Court was concerned enough about voter turnout to approve $145,000 in Octo- ber for an informational mailing to ex- plain the new law. The court was de- bating a second appropriation of $165,000 in february as the primaries approached. The court’s lone Repub- lican opposed the expenditures.
whatever the turnout may be in the march 4 races, the arguments over the impact of voter-ID laws in Texas and
elsewhere appear likely to continue, unresolved. Shaw, the University of Texas political scientist, notes that turnout can be affected by any num- ber of factors — from the level of in- terest in the contests themselves to Election Day weather and transporta- tion conditions. “It’s hard to disentan- gle” the effect of any single factor, Shaw says.
The parties are also likely to con- tinue to fight over proposals to enact or to tighten ID requirements, according to election law expert Hasen. “There are fundamental disputes over whether to make voting easier,” he says. “Democrats want to make vot- ing easier. They see voting as about the allocation of power among equals. Republicans see voting more as a test to determine the best candidate — in which case imposing hurdles weeds out voters who are least informed.”
The opposing camps also differ on the likely course of court rulings on voter-ID laws. Supporters, such as the Heritage foundation’s von Spakovsky, predict most laws will be upheld, while the Advancement Project’s Culliton- Gonzalez and other opponents expect more victories like the one in Penn- sylvania.
The Pennsylvania ruling, however, gives the state government a chance to revive the law if sufficient resources are provided to help voters obtain qualifying identification. for his part, Baretto, the University of washington professor who testified for the plain- tiffs in the Pennsylvania case, expects courts to examine ID laws with “more scrutiny,” even in cases where the laws are not struck down.
In washington, supporters of the proposed rewrite of the federal vot- ing Rights Act are working behind the scenes to try to muster Republican support that the bill will need to ad- vance in the GOP-controlled House. without referring specifically to the bill, vice President Joe Biden used a martin Luther King Day appearance to
188 CQ Researcher
vOTING CONTROvERSIES
call for reviving the voting Rights Act in the wake of the Supreme Court’s decision last year. for his part, Attor- ney General Holder went before a criminal justice reform symposium at Georgetown Law School in washing- ton to call for restoring voting rights for felons. 29
As for the rest of the nation’s elec- tion machinery and procedures, more attention is on the agenda, but the prospects for concrete action are cloudy. Online registration may advance, given its claimed advantages of greater ac- curacy at less expense. But the par- ties’ opposing views on whether to make voting easier raise doubts about the presidential commission’s recom- mendations for more early and no-ex- cuse absentee voting. And fiscal real- ities threaten the commission’s urgent recommendation to upgrade vote- counting technology.
The nation got a wake-up call on the problems of administering elec- tions in 2000, according to Becker, head of the Pew elections initiative. Despite the mixed forecast for changes, he sees the past decade-plus of debates as necessary and useful.
“America should be a model for the world in democracy,” Becker says, “and that means harnessing technolo- gy to build an election system that is as accurate, convenient, cost-effective and efficient as possible.”
Notes
1 See Applewhite v. Commonwealth, 330 m.D. 2012 (Jan. 17, 2014), www.pacourts.us/assets/ files/setting-647/file-3490.pdf?cb=a5ec29. for coverage, see Karen Langley, “Judge Declares voter ID Law is Invalid,” Pittsburgh Post- Gazette, Jan. 18, 2014, p. A-1; Amy worden, “Pa. voter ID law struck down,” The Philadel- phia Inquirer, Jan. 18, 2014, p. A1; Rick Lyman, “Pennsylvania voter ID Law Struck Down as Judge Cites Burdens on Citizens,” The New York Times, Jan. 18, 2014, p. A12. Some back- ground drawn from Charles Thompson, “State nears requiring that voters show IDs,” Patriot News (Harrisburg, Pa.), march 13, 2012, p. A1. 2 for a detailed list and chronology, see “voter Identification Requirements,” National Con- ference of State Legislatures (regularly up- dated), www.ncsl.org/research/elections-and- campaigns/voter-id.aspx. for previous coverage, see these CQ Researcher reports by Peter Katel: “voter Rights,” may 18, 2012, pp. 449-476; “voting Controversies,” Sept. 15, 2006, pp. 745-768. 3 The case is Shelby County v. Holder, 570 U.S. —- (June 25, 2013), www.supremecourt. gov/opinions/12pdf/12-96_6k47.pdf. for cov- erage, see Kenneth Jost, Supreme Court Year- book 2012-2013. 4 See Kathy Koch, “Election Reform,” CQ Re- searcher, Nov. 2, 2001, pp. 897-920. 5 “The American voting Experience: Report and Recommendations of the Presidential Commission on Election Administration,” Pres- idential Commission on Election Administra- tion, Jan. 22, 2014, www.supportthevoter.gov. for coverage, see Scott wilson, “Election commission recommends changes,” The Wash-
ington Post, Jan. 23, 2014, p. A4. 6 “voting Laws Roundup 2014,” Brennan Cen- ter for Justice, feb. 6, 2014, www.brennan center.org/analysis/voting-laws-roundup-2014 #ftn4. 7 von Spakovsky’s earlier quote from Lachlan markay, “Critics Blast Obama Nominee for Election Assistance Commissioner,” The Wash- ingtonFree Beacon, June 11, 2013, http://free- beacon.com/critics-blast-obama-nominee-for- election-assistance-commissioner/. 8 The decision is Crawford v. Marion Coun- ty Board of Elections, 533 U.S. 188 (2008). for an account, see Kenneth Jost, Supreme Court Yearbook 2007-2008. 9 John fund, “why we Need voter-ID Laws Now,” National Review Online, April 9, 2012, www.nationalreview.com/articles/295431/why- we-need-voter-id-laws-now-john-fund. fund stresses that O’Keefe did not violate the law because he did not explicitly identify him- self as Holder or request a ballot. The book co-authored by fund and von Spakovsky is Who’s Counting? How Fraudsters and Bureau- crats Put Your Vote at Risk (2012). 10 Quoted in “Democracy Prevails in Penn- sylvania voter ID Trial,” Advancement Pro- ject, Jan. 17, 2014, www.advancementproject. org/news/entry/democracy-prevails-in-penn sylvania-voter-id-trial. 11 Texas v. Holder, 12-cv-128, U.S. Dist. Ct.- Dist. Col., (Aug. 30, 2012), pp. 46-47, www. scribd.com/doc/104429876/Texas-v-Holder. 12 See “Online voter Registration,” National Conference of State Legislatures, November 2013, www.ncsl.org/research/elections-and-campaigns/ electronic-or-online-voter-registration.aspx. The report includes a link to the 55-minute Nov. 12 webinar, “Online voter Registration: The Bi- partisan Trend in Elections.” 13 fund and von Spakovsky, op. cit., chap. 6. 14 “Reforming the voting process to improve access,” “PBS NewsHour,” Jan. 23, 2014, http://video.pbs.org/video/2365162592/. 15 Historical background drawn in part from Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the Unit- ed States (rev. ed, 2010). See also Katel, “voter Rights,” op. cit. 16 The Supreme Court decision is South Car- olina v. Katzenbach, 383 U.S. 301 (1966). 17 The Supreme Court decision is Oregon v. Mitchell, 400 U.S. 112 (1970). 18 The decision is Mobile v. Bolden, 446 U.S. 55 (1980). The ruling threw out a lower court order that found the city of mobile, Ala., had
About the Author Kenneth Jost has written more than 160 reports for CQ Researcher since 1991 on topics ranging from legal affairs and social policy to national security and international rela- tions. He is the author of The Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press). He is an hon- ors graduate of Harvard College and Georgetown Law School, where he teaches media law as an adjunct professor. He also writes the blog Jost on Justice (http://jostonjustice.blogspot. com). His previous reports include “Racial Profiling” (2013) and “Supreme Court Controversies” (2012).
Feb. 21, 2014 189www.cqresearcher.com
violated the voting Rights Act by changing from a district to an at-large system for elect- ing members of the city’s governing body. 19 The decision is Thornburg v. Gingles, 478 U.S. 30 (1986). The decision sustained a lower court decision that threw out several multi- member legislative districts in North Carolina. 20 for background, see Koch, op. cit. 21 “To Assure Pride and Confidence in the Electoral Process,” National Commission on federal Election Reform, August 2001, http:// web1.millercenter.org/commissions/comm_2001. pdf. The commission was co-sponsored by the University of virginia’s miller Center on Public Affairs and the Century foundation; the report was presented to President Bush at the white House on July 31, 2001. 22 for a detailed dissection of the reautho- rization, see Nathaniel J. Persily, “The Promise and Pitfalls of the New voting Rights Act,” Yale Law Journal, vol. 117, No. 2 (Novem- ber 2007), pp. 174-253, http://yalelawjournal. org/images/pdfs/606.pdf. 23 Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown (2012). 24 “voter ID: where Are we Now?” The Can- vass, National Conference of State Legislatures, April 2012, www.ncsl.org/documents/legismgt/ elect/Canvass_Apr_2012_No_29.pdf. 25 Hasen, “margin of Litigation,” op. cit., pp. 131-133. 26 for an account, see Kenneth Jost, Supreme Court Yearbook 2008-2009. 27 See Patrick marley, “High court to take up cases on voter ID,” Milwaukee Journal Sentinel, Nov. 21, 2013, p. B1; Bruce vielmetti, “Legal fil- ings hone voter ID arguments,” Milwaukee Jour- nal Sentinel, Dec. 25, 2013, p. B1. 28 “voting Laws Roundup 2014,” op. cit. States with active “expansive” bills are California, Colorado, Kentucky, massachusetts, Nebras- ka, New York and washington; states with active “restrictive” bills are Nebraska, New Hampshire, washington and wisconsin. Also see “2013 Election Legislation Enacted by State Legislatures,” National Conference of State Legislatures, Jan. 14, 2014, www.ncsl.org/ research/elections-and-campaigns/wrap-up- 2013-election-legislation-enactments.aspx. 29 See Dave Boyer, “Biden hits voter ID laws at event to honor King,” The Washington Times, Jan. 21, 2014, A3; matt Apuzzo, “Holder Urges States to Lift Ban on felons’ voting,” The New York Times, feb. 12, 2014, p. A17.
FOR MORE INFORMATION Advancement Project, 1220 L St., N.w., Suite 850, washington, DC 20005; 202- 728-9557; www.advancementproject.org. The multiracial civil rights organization works with community organizations on election reform and other issues.
American Civil Liberties Union, 125 Broad St., New York, NY 10004; 212-549- 2500; www.aclu.org/voting-rights. The ACLU’s voting Rights Project participates in litigation against photo-ID laws and other election issues; also provides news, analysis and research reports.
Brennan Center for Justice at New York University School of Law, 161 Avenue of the Americas, New York, NY 10013; 646-292-8310; www.brennancenter.org. The nonpartisan law and policy institute publishes research, analysis and litigation documents on major election law issues.
Election Assistance Commission, 1335 East west Highway, Suite 4300, Silver Spring, mD 20910; 301-563-3919; www.eac.gov. The federal agency is an independent biparti- san commission established in 2002 to assist states and localities in improving election administration and implementing provisions of the Help America vote Act.
Fair Elections Legal Network, 1825 K St., N.w., Suite 450, washington, DC 20006; 202-331-0114; http://fairelectionsnetwork.com. The network of lawyers works to re- move barriers to voting and improve election administration across the United States.
Heritage Foundation, 214 massachusetts Ave., N.E., washington, DC 20002; 202- 546-4999; www.heritage.org/issues/legal. The conservative think tank advocates stricter ID requirements for voting.
Mexican American Legal Defense and Educational Fund (MALDEF), 634 S. Spring St., Los Angeles, CA 90014; 213-629-2512; www.maldef.org. The longtime civil rights organization works on voting rights issues affecting Latinos.
NAACP, 4805 mt. Hope Drive, Baltimore, mD 21215; 877-622-2798; www.naacp.org. The longtime civil rights organization participates in voting rights advocacy at the federal, state and local levels.
NAACP Legal Defense and Educational Fund, 99 Hudson St., 16th floor, New York, NY 10013; 212-219-1900; www.naacpldf.org. The organization — separate from the NAACP — litigates on voting rights issues in federal and state courts.
National Association of Election Officials, 21946 Royal montreal Drive, Suite 100, Katy, TX 77450; 281-396-4309; http://electioncenter.org. The professional association represents government employees who serve in voter registration and elections ad- ministration.
National Association of Secretaries of State, 444 North Capitol St., N.w., Suite 401, washington, DC 20001; 202-624-3525; www.nass.org. The association repre- sents secretaries of state from the 50 states, the District of Columbia, Puerto Rico and American Samoa, most of whose offices have responsibility for administering elections in their jurisdictions.
National Conference of State Legislatures, 7700 East first Pl., Denver, CO 80230; 303-364-7700; www.ncsl.org. The nonpartisan organization furnishes the most complete and up-to-date information on states’ voter-ID laws and other election-related measures.
Project on Fair Representation, c/o Project Liberty, 109 N. Henry St., Alexandria, vA 22314; 703-505-1922; www.projectonfairrepresentation.org/. The project spon- sored the litigation that resulted in the Supreme Court’s decision to invalidate the voting Rights Act’s preclearance coverage formula.
True the Vote, P.O. Box 27368, Houston, TX 77227; http://truethevote.org. The web-based organization supports photo-ID laws and organizes a nationwide net- work of election-watchers.
U.S. Department of Justice, 950 Pennsylvania Ave., N.w., washington, DC 20530; 202-514-2000; www.justice.gov. The Justice Department’s voting Section is responsi- ble for enforcing federal laws regarding voting rights.
FOR MORE INFORMATION
190 CQ Researcher
Selected Sources
Bibliography Books
Fund, John H., and Hans von Spakovsky, Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk, Encounter Books, 2012. fund, a columnist with National Review Online, and von
Spakovsky, a senior fellow with the conservative Heritage foundation and former federal Election Commission mem- ber, contend that voting fraud is spreading in the United States. They call for voter-ID laws, among other steps, to safeguard the integrity of elections, and they criticize liberal- backed proposals such as same-day voter registration as in- vitations to fraud. Includes notes. fund also is author of Stealing Elections: How Voting Fraud Threatens Our Democ- racy (2d ed.), Encounter Books, 2008.
Hasen, Richard L., The Voting Wars: From Florida 2000 to the Next Election Meltdown, Yale University Press, 2012. A nationally prominent election law expert at the University
of California-Irvine School of Law details the controversies over administration of elections beginning with the presidential vote recount in florida in 2000 and continuing through the 2010 election cycle. Includes notes. Hasen also publishes the com- prehensive Election Law Blog (http://electionlawblog.org/).
Keyssar, Alexander, The Right to Vote: The Contested History of Democracy in the United States (rev. ed.), Basic Books, 2010 (originally published 2000). A professor of history and public policy at Harvard Uni-
versity’s Kennedy School of Government traces the history of voting issues from the limited suffrage in the country’s early history through the hard-fought battles over expand- ing voting rights from the mid-19th century to the present day. Includes appendix material, detailed notes.
May, Gary, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy, Basic Books, 2013. A professor of history at the University of Delaware details
the events leading to the enactment of the voting Rights Act of 1965. Includes notes.
Wang, Tova Andrea, The Politics of Voter Suppression: Defending and Expanding Americans’ Right to Vote, Cornell University Press, 2012. An election-law expert at the liberal advocacy group Demos
criticizes voter-ID laws among other proposals as attempts at “voter suppression.”
Articles
Lee, Suevon, “Everything You’ve Ever Wanted to Know About Voter ID Laws,” Pro Publica, Nov. 5, 2012, www.propubli ca.org/article/everything-youve-ever-wanted-to-know-about- voter-id-laws.
A question-and-answer format provides a thorough expla- nation of the origin of and controversy over voter-ID laws.
Toobin, Jeffrey, “Annals of Law: Holder v. Roberts,” The New Yorker, Feb. 17, 2014, www.newyorker.com/report ing/2014/02/17/140217fa_fact_toobin. A legal analyst depicts Attorney General Eric Holder as
deeply committed to using suits against Texas and North Carolina to restore the power of the voting Rights Act to prevent discriminatory voting practices.
Hearings
“From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act,” U.S. Senate Judiciary Committee, July 17, 2013, www.judiciary. senate.gov/hearings/hearing.cfm?id=6ae289b2466e2489f 90d6b42c9d8d78f. The hearing included testimony by two of the House co-
sponsors of the proposed rewrite of the voting Rights Act and three private witnesses.
“The Voting Rights Act After the Supreme Court’s Decision in Shelby County,”U.S. House Judiciary Subcommittee on the Constitution and Civil Justice, July 18, 2013, http://ju diciary.house.gov/index.cfm/hearings?ID=3798FE70B5F1- C18F-30C6-70FAF7EBCA5C.Committee. The hearing included testimony by four private individuals.
Reports and Studies
“The American Voting Experience: Report and Recommen- dations of the Presidential Commission on Election Admin- istration,” January 2014, www.supportthevoter.gov/files/ 2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf. The bipartisan, 10-member commission called for online
registration, expanded early or absentee voting and improved voting technology; commissioners were unanimous in the 112-page report, but did not address photo-ID proposals.
“Building Confidence in U.S. Elections: Report of Com- mission on Federal Election Reform,” September 2005, www1.american.edu/ia/cfer/report/full_report.pdf. The private commission called for photo IDs for all vot-
ers, verifiable paper trails for election results and impartial administration of elections.
On the Web
Election Law @ Moritz, http://moritzlaw.osu.edu/elec tionlaw/.
The Ohio State University’s moritz College of Law main- tains a website with “information and insights on the laws governing federal, state, and local elections.”
Feb. 21, 2014 191www.cqresearcher.com
Absentee Ballots
Brust, Pamela, “Absentee voting procedure approved,” Parkersburg [W.Va.] News and Sentinel, Feb. 12, 2014, http://tinyurl.com/owdorf5. Emergency absentee voting policies have been approved
in wood County, w.va., allowing those who are hospital- ized on an emergency basis to have a ballot delivered to them at a hospital.
Roth, Zachary, “Ohio set to pass tough new round of voting restrictions,”MSNBC, Feb. 11, 2014, http://tinyurl. com/mw7qavc. Ohio Republicans are set to pass a new round of voting
restrictions that would shorten early-voting periods and limit absentee ballots.
Identification Laws
“The Dishonesty of Voter ID Laws,”The New York Times, Sept. 30, 2013, http://tinyurl.com/lznsjdq. voter-identification laws make it harder for eligible voters
to register and vote, says The New York Times Editorial Board.
Fernandez, Manny, “Party Predictions Differ in Texas on Impact of New Voter ID Law,” The New York Times, Feb. 5, 2014, http://tinyurl.com/lygz5fw. Texas Democrats and Republicans disagree on the impact
that new voter-identification laws will have on the state’s primary on march 4.
Horwitz, Sari, “Pennsylvania judge strikes down voter ID law,” The Washington Post, Jan. 17, 2014, http://tiny url.com/kh6c26d. A Pennsylvania judge struck down a law requiring voters
to show photo identification before casting their ballot, saying it was unconstitutional and placed an unreasonable burden on voters.
Voter Fraud
Bingham, Amy, “Voter Fraud: Non-Existent Problem or Election-Threatening Epidemic?”ABC News, Sept. 12, 2012, http://tinyurl.com/8d2kxkm. A reporter says voter fraud occurs, but rarely, with only
40 voters indicted for voter fraud out of the 197 million votes cast for federal candidates between 2002 and 2005.
Khan, Natasha, and Corbin Carson, “Election Day im- personation, an impetus for voter ID laws, a rarity, data show,” The Washington Post, Aug. 11, 2012, http://tiny url.com/92m3wgl. An analysis of more than 2,000 cases of alleged election
fraud by News 21, an investigative reporting project, showed
that in-person voter impersonation was virtually nonexistent over the past dozen years.
Shawn, Eric, “Non-citizens caught voting in 2012 presi- dential election in key swing state,” Fox News, Dec. 18, 2013, http://tinyurl.com/kt62lwu/. Ohio Secretary of State John Husted said 17 non-citizens
illegally cast ballots in the 2012 presidential election.
Voting Machines
Drabold, Will, “Aging voting machines could jeopardize elections, officials say,” The Columbus Dispatch, Feb. 13, 2014, http://tinyurl.com/lct68wx. Ohio counties cannot afford to replace decade-old voting
machines and have little incentive to do so because federal election standards have not been updated since 2005.
Kowarski, Ilana, “Outdated Md. voting machines will not be replaced before 2014 election,” Maryland Reporter, March 5, 2013, http://tinyurl.com/khohjbw. maryland voters must wait three years before they can use
upgraded voting machines because of a lack of state funding.
Stern, Joanna, “How Faulty and Outdated Voting Ma- chines Contributed to Voter Lines and Frustration,” ABC News, Nov. 7, 2012, http://tinyurl.com/c7lkf2w. Experts say breakdowns and malfunctions in voting ma-
chines, such as paper jams and touch screen errors, caused long voting lines and voter annoyance during the 2012 presi- dential election.
The Next Step: Additional Articles from Current Periodicals
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mLA STYLE Jost, Kenneth. “Remembering 9/11.” CQ Researcher 2 Sept.
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searcher, 9, 701-732.
CHICAGO STYLE Jost, Kenneth. “Remembering 9/11.” CQ Researcher, Sep-
tember 2, 2011, 701-732.
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