Fightback on Voting Rights
In recent weeks, in states from Florida to Ohio to New Hampshire, courts have blocked new laws passed by Republicans that restrict the right to vote for young, minority, elderly, disabled and low-income voters. A major exception to that trend had been Pennsylvania, where GOP House majority leader Mike Turzai famously predicted that the state’s voter ID law was “going to allow Governor Romney to win the state of Pennsylvania.” But on October 2, Pennsylvania Commonwealth Court Judge Robert Simpson, a Republican, thwarted Turzai’s hopes by ruling that voters in Pennsylvania did not have to show a government-approved ID in order to cast a ballot in the November election.
To paraphrase Mitt Romney, Judge Simpson’s ruling was an inelegant solution to an inelegant problem. He initially upheld the law on August 15—a decision the Pennsylvania Supreme Court vacated nearly a month later. The higher court sent the case back to Simpson, telling him to issue a preliminary injunction against the law unless he could conclude there would be “no voter disenfranchisement” as a result of it. But Judge Simpson rightfully could not reach that conclusion; according to his estimates, 1 to 9 percent of registered voters in Pennsylvania did not have a valid ID—somewhere in the range of 100,000 to 500,000 people by conservative estimates—yet the state had issued only 13,000 voter IDs since the law went into effect in March. A significant number of eligible voters in Pennsylvania were going to be disenfranchised if the law remained in effect.
Simpson didn’t strike the law, but he also chose not to require its enforcement, pending a full trial after the election. Poll workers can still ask for ID, but voters don’t have to show it—a temporary victory for voting rights advocates, albeit a confusing one. There’s no guarantee that the thousands of Pennsylvania poll workers will administer the law in a consistent manner. “Will there be a uniform way of asking people for identification so that we don’t see racial profiling in the voting booth?” asks Judith Browne-Dianis, co-director of the Advancement Project, one of the lead attorneys challenging the law.
Some eligible voters will be wrongly told they need ID to cast a ballot, while other voters will stay home because they mistakenly think they need a form of ID that they don’t have. “I think it’s still going to be pretty chaotic on election day,” says Zack Stalberg, president of the Committee of 70, a good-government group in Philadelphia that organized the Pennsylvania Voter ID Coalition to help people get IDs. “Our focus right now is trying to minimize the confusion.” The coalition plans to recruit thousands of election protection volunteers on election day to help make sure every eligible voter is able to cast a ballot. “We don’t want all our attention to voter ID to have been for naught,” says Joe Certaine, the lead organizer in the coalition and a former managing director of the City of Philadelphia. “What this has done is raise consciousness about the electoral process.”
The Pennsylvania ruling had larger national significance. It was one of ten rulings in the past year by state or federal courts that have stalled Republican voter suppression efforts since the 2010 elections, including in crucial swing states like Florida, Ohio and Wisconsin. The courts have blocked voter ID laws (Missouri, Texas and Wisconsin), limits on voter registration drives (Florida), cutbacks to early voting (Ohio), partisan voter purges (Iowa), hurdles to student voting (New Hampshire) and the disqualification of provisional ballots (Ohio). If 2011 was the year when more than a dozen states passed new voter restrictions, 2012 was the year the courts struck back.
Yet it’s too early for voting rights advocates to pop the champagne corks. “A lot of these laws are blocked for now,” says Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense Fund. “The final verdict isn’t in.”
New voter suppression laws are still on the books in thirteen states, and state supreme courts in places like Wisconsin have yet to decide whether voter ID laws violate the right-to-vote provisions of their state constitutions. (In 2008, the US Supreme Court upheld Indiana’s voter ID law.) Nor has the Court weighed in recently on the constitutionality of Section 5 of the Voting Rights Act, which hangs over any conversation about voting rights like a dark cloud. Attorney General Eric Holder has called Section 5, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government, the “keystone of our voting rights.” Today, attorneys general in six Republican states are supporting a constitutional challenge to Section 5 originating in Shelby County, Alabama, which the Supreme Court is expected to hear in the spring.
Rick Hasen, an elections expert at the University of California, Irvine, School of Law and author of The Voting Wars, predicts the Court will invalidate Section 5, noting that Chief Justice John Roberts led the charge against the expansion of the Voting Rights Act as a young lawyer in the Reagan Justice Department. “This is his signature issue,” Hasen says. The disappearance of Section 5 would be a devastating setback for voting rights, akin to the way the Citizens United decision eviscerated campaign finance reform.
But Adegbile, who successfully argued against overturning Section 5 during a previous challenge before the Court in 2009, believes the rulings against voter suppression laws this year will strengthen his side’s argument when they go back before the justices. “Today, the average person understands what Congress came to understand when they reauthorized the Voting Rights Act [by an overwhelming margin in 2006], which is that we have made a tremendous amount of progress. But the strain that runs through American politics of blocking voters is far from gone and rears its head in pernicious ways,” Adegbile says. “That changes the context of the conversation.”
No matter what happens on election day or before the Supreme Court, don’t expect Republicans to drop their effort to restrict the right to vote, which for now is the GOP’s only response to demographic change. Unless or until Republicans get serious about courting an increasingly diverse and younger electorate, they’ll continue to pass laws to undermine the political power of this growing constituency. Voter suppression efforts have become the “new normal” in the GOP; Republicans may become more judicious in crafting such laws as a result of recent court decisions, but they won’t stop trying to pass them. As a result, the United States could become a country with a two-tiered electoral system, with Republicans in red states restricting the right to vote and Democrats in blue states expanding voter access, as California recently did by adopting online and election day voter registration.
The voting rights community plans to stay on its toes, both in the run-up to the election and after. “We, as a field, didn’t have the resources to do the work and weren’t prepared for the attack on voting rights after the 2010 election,” says Browne-Dianis. “Lessons learned. The voting rights movement has been rejuvenated.”
All through this election season, our Voting Rights Watch blog has kept an eye on this crucial issue. The latest dispatch: “The Voting Rights Act Protects Two More States From Voter ID Laws.”