Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

Discriminatory South Carolina Voter ID Law Challenged in Federal Court - UPDATED

Starting today, a federal court in DC will hear a week-long trial to decide whether South Carolina’s new voter ID law violates the Voting Rights Act. The Department of Justice objected to the law last December under Section 5 of the Voting Rights Act, finding that South Carolina had failed to prove that the measure would not disenfranchise minority voters.

Here’s the relevant evidence presented by DOJ:

Of the total number of registered voters in the state, 239,333 (or 8.9%) did not possess a DMV-issued photo identification (either a driver’s license or a non-driver’s photo ID card) that would satisfy the requirements under Act R54. When disaggregated by race, the state’s data show that 8.4% of white registered voters lacked any form of DMV-issued ID, as compared to 10.0% of non-white registered voters. In other words, according to the state’s data … minority registered voters were nearly 20% more likely to lack the DMV-issued ID than white registered voters, and thus to be effectively disenfranchised by Act R54’s new requirements.…

Notably, seven counties with the highest percentages of registered voters who lack DMV-issued identification are also among the ten counties in South Carolina that have the highest percentage of voting-age persons who are non-white.

The absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands. According to the state’s statistics, there are 81,938 minority citizens who are already registered to vote and who lack DMV-issued identification.

South Carolina Republicans have displayed a cavalier attitude toward those voters lacking ID in the state. “Find me those people that think that this is invading their rights,” said South Carolina Governor Nikki Haley, “and I will go take them to the DMV myself and help them get that picture ID.” Yet given the number of registered voters in South Carolina who lack the new voter ID, transporting each one to the DMV would take Haley quite some time—seven years, four months, three weeks and five days, Think Progress calculated.

Moreover, obtaining that government-issued photo ID isn’t as easy as you’d think. To get the “free” ID the state must now provide, voters need to buy a passport or a birth certificate in order to authenticate their identity. “It’s the stepsister of the poll tax,” Judith Browne-Dianis, co-director of the Advancement Project, told me last year. Under the new law, many elderly black residents—who were born at home in the segregated South and never had a birth certificate—must now go to family court to prove their identity.

What justifies making it so difficult for certain segments of the population to exercise one of the country’s most basic constitutional rights? South Carolina Republicans claim the law will stop a massive outbreak of voter fraud. Yet DOJ noted that “the state’s submission did not include any evidence or instance of either in-person voter impersonation or any other type of fraud.” A separate investigation by the South Carolina Elections Commission, based on the hysterical claim by the South Carolina Attorney General that 900 dead people voted in the 2010 election, also found no evidence of voter fraud or zombie voting

DOJ has also objected to discriminatory new voting restrictions in Florida and Texas under Section 5 of the Voting Rights Act. Section 5 mandates that covered jurisdictions with a history of electoral discrimination—which includes parts or all of sixteen states, including much of the South—receive approval from DOJ or a federal court in Washington for any voting-related change to ensure that it does not make it harder for minority citizens to be able to vote. On August 16, a federal court found that Florida’s cutbacks to early voting violated the Voting Rights Act, since African-American voters were twice as likely as white voters to use early voting during the 2008 election. Seven GOP states are now challenging the constitutionality of Section 5 before the Supreme Court. Not surprisingly, South Carolina is one of them.

A few updates on the case:

-During the trial on Tuesday it was revealed that South Carolina GOP State Rep. Alan Clemmons, author of the voter ID bill, received an email from a supporter of the voter ID law, Ed Koziol of Greenville, suggesting that if black voters received a reward for obtaining the voter ID “it would be like a swarm of bees going after a watermelon.” To which Clemmons replied, “Amen, Ed, thank you for your support.” Clemmons also said he did not recall “distributing packets of peanuts with cards that read ‘Stop Obama’s nutty agenda and support voter ID,’” McClatchy reported, despite prior testimony to the contrary.

-At the opening night of the RNC convention, South Carolina Governor Nikki Haley received big cheers when she defended her state’s voter ID law. “We said in South Carolina that if you have to show a picture ID to buy Sudafed and you have to show a picture ID to set foot on an airplane, then you should have to show a picture ID to protect one of the most valuable, most central, most sacred rights we are blessed with in America—the right to vote,” Haley said. “And what happened? President Obama stopped us.”

Haley doesn’t seem to realize that you do not, in fact, need government-issued identification to board an airplane, nor is buying Sudafed akin to voting. “Someone should tell Haley that the right to vote is a constitutional one, for which many good men and women have died, while the right to Sudafed is not,” writes Andrew Cohen of The Atlantic.


Ohio GOP Admits Early Voting Cutbacks Are Racially Motivated

Earlier this month I reported how Ohio Republicans were limiting early voting hours in Democratic counties, while expanding them on nights and weekends in Republican counties.

In response to the public outcry, Ohio Secretary of State Jon Husted, who intervened in favor of limiting early voting hours in Democratic counties, issued a statewide directive mandating uniform early voting hours in all eighty-eight Ohio counties. Husted kept early voting hours from 8 am to 5 pm on weekdays from October 2 to 19 and broadened hours from 8 am to 7 pm from October 22 to November 2. But he refused to expand early voting hours beyond 7 pm during the week, on weekends or three days prior to the election (which is being challenged in court by the Obama campaign)—when it is most convenient for many working Ohioans to vote. Rather than expanding early voting hours across the state, Husted limited them for everybody. Voter suppression for all!

Montgomery County, Ohio—which includes Dayton—is now at the center of the early voting fight. (Obama won Montgomery County by 6 percent in 2008). On two separate occasions, December 28, 2011, and August 6, 2012, the four-member county board of elections unanimously approved expanded weekday and weekend early voting hours. But in a meeting on August 17, the two Republicans on the board reversed their position and opposed expanding early voting hours. With the committee deadlocked between Democratic and Republican members, Husted broke the tie in favor of the GOP, like he’s done in Cleveland, Columbus, Akron and Toledo.

Yet before breaking the tie, Husted ordered Democratic board members Tom Ritchie Sr. and Dennis Lieberman to hold a new meeting and rescind their votes in favor of early voting. When they refused, arguing that Husted’s directive did not apply to weekend voting, Husted suspended them from the county board of elections. (A third of the 28,000 in-person early voters in Montgomery County in 2008 voted on the weekend.)

“There’s no reason in the world for him to do what he’s doing to us other than to suppress the vote,” Ritchie, who’s served on the board of elections since 1995, told me. At a hearing in Columbus today, Husted’s office will decide whether Ritchie and Lieberman will be permanently suspended. “I fully expect that me and my fellow board member will be removed,” says Ritchie. (UPDATE: a ruling is expected later this week.) If that’s the case, Ritchie and Lieberman plan to appeal their suspension to the Ohio Supreme Court. (He also believes that Husted’s order that the board hold a second meeting on August 17 violated Ohio’s Sunshine Laws, which requires that a government body give twenty-four-hour notice to the media and general public in advance of a public meeting.)

Llyn McCoy, president of the Ohio Association of Election Officials, says she was not consulted about Husted’s directive—despite his claim that he sought the input of local election officials before making his decision—and was “surprised” by the suspension of Ritchie and Lieberman. “I don’t see why Husted got into this ‘you voted, now you’re suspended’ kind of thing,” McCoy says. “The secretary of state was trying to send a message that he wasn’t going to tolerate any extended hours.”

Husted’s drastic action marks a dark day for democracy in Ohio. “Historically, the Montgomery County Board of Elections has been very well-run and is widely viewed as one of the best board of elections in the state,” says Ellis Jacobs, an attorney with the nonpartisan Miami Valley Voter Protection Coalition. “The board of elections planned ahead to maximize voters’ access to the polls and now they’re being punished by the secretary of state for doing their job so well.”

Why do Ohio Republicans suddenly feel so strongly about limiting early voting hours in Democratic counties? Franklin County (Columbus) GOP Chair Doug Preisse gave a surprisingly blunt answer to the Columbus Dispatch on Sunday: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine.” Preisse is not some rogue operative but the chairman of the Republican Party in Ohio’s second-largest county and a close adviser to Ohio Governor John Kasich.

Like Pennsylvania House majority leader Mike Turzai, who said his state’s voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania,” Preisse said publicly what many Republicans believe privately—keeping turnout down among Obama supporters is the best way for the GOP to win the 2012 election. That’s why, since the 2010 election, Republicans have devoted so much energy to voter-suppression efforts like limiting early voting hours, restricting voter registration drives, passing voter ID laws, disenfranchising ex-felons and purging the voter rolls.

Cutbacks to early voting disproportionately disenfranchise African-American voters in Ohio. African-Americans comprise 21 percent of the population in Franklin and Montgomery counties and 28 percent in Cleveland’s Cuyahoga County but accounted for 31 percent, 52 percent and 56 percent of early voters in the respective counties in 2008. (Nearly half of early voters in Franklin County in 2008 did so on nights or weekends.)

Now it’ll be harder for voters across Ohio, particularly in the most populous, heavily Democratic cities, to find a convenient time to vote before Election Day in order to avoid the long lines that plagued the state in 2004 and may have cost John Kerry the election. “In the hours and days now eliminated by legislative and Sec. of State restrictions, an estimated 197,000 Early In-Person votes were cast, constituting about 3.4% of all votes cast statewide in 2008,” according to a new report by Norman Robbins, research director for Northeast Ohio Voter Advocates. “This is very significant in Ohio where major elections have often been decided by a 2% margin of victory.”

Republicans were for reforms like early voting until Democrats started using them. “It just so happened that [2008] was the first time that early voting had been used in large numbers to mobilize African American and Latino voters," Wendy Weiser, director of the democracy program at the Brennan Center for Justice, told the Huffington Post. A federal court ruled on Thursday that early voting cutbacks in Florida—where blacks outnumbered whites by two to one among early voters in 2008—violated the Voting Rights Act. As Doug Preisse admitted on Sunday, Republicans are doing everything in their power to make sure 2012 isn’t a repeat of 2008.

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You can find more of The Nation’s coverage of voting rights at our blog, Voting Rights Watch 2012.

Partisan Pennsylvania Voter ID Law Wrongly Upheld by Court

Pennsylvania Commonwealth Court Judge Robert Simpson, a Republican, declined to issue an injunction against the state’s new voter ID law in a ruling today, despite the preponderance of evidence that the new law is unjust, unnecessary and discriminatory. (See my “Ten Takeaways From Pennsylvania’s Voter ID Trial” for background on the case.)

Simpson sided with the state on a challenge brought by the ACLU and the Advancement Project. He acknowledged that “petitioners’ counsel did an excellent job of ‘putting a face’ to those burdened by the voter ID requirement,” but concluded that “petitioners did not establish, however, that disenfranchisement was immediate or inevitable.” On the contrary, Simpson asserted that the law’s “provisions are neutral and nondiscriminatory and apply uniformly to all voters,” and that he “was convinced that [the law] will be implemented by commonwealth agencies in a non-partisan, even-handed manner.”

Instead of forcing the state to prove that the voter ID law was necessary, Simpson put the burden of proof on the plaintiffs’ to show that the law violated the state constitution, which he said they failed to do. “Any party challenging a legislative enactment has a heavy burden, and legislation will not be invalidated unless it clearly, patently and plainly violated the constitution of this commonwealth,” he wrote. “Any doubts are to be resolved in favor of a finding of constitutionality.”

This was a head-scratching ruling, and one at odds with state courts in Missouri and Wisconsin, which found that voter ID laws restricted the fundamental right to vote of citizens. Instead, Simpson relied on a controversial 2008 ruling by the Supreme Court in Crawford v. Marion County, which upheld Indiana’s voter ID law even though the state failed to provide any evidence of in-person voter fraud to justify the law. Pennsylvania, like Indiana, stipulated at the beginning of the voter ID trial that “there have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” But in the Crawford case the Supreme Court found that the mere threat of voter fraud was enough to justify a voter ID law, which set a chilling precedent for voting rights advocates. (That “threat” is virtually nonexistent. A major investigation from 2002–07 by the Bush Justice Department failed to prosecute a single case of in-person voter impersonation. There were thirty-nine times as many deaths by lightning from 2000–07 as there were instances of voter impersonation.)

Despite the Crawford ruling, it’s hard to take seriously Simpson’s claim that the Pennsylvania voter ID law is nonpartisan and nondiscriminatory.

Voter ID laws are partisan. Of the ten states that have passed strict voter ID laws since 2005, all are controlled by Republicans. These laws were first drafted by the American Legislative Exchange Council, a powerful ally of the GOP. Mike Turzai, majority leader of the Pennsylvania House, said the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” The consulting firm in charge of educating voters about the law is run by Pennsylvania Republicans with close ties to GOP Governor Tom Corbett and the Romney campaign. All of the top officials in Pennsylvania in charge of implementing the law are Republicans. How much more proof of partisanship does one need?

Voter ID laws are discriminatory. Those without IDs are disproportionately people of color who tend to vote Democratic. According to the Pennsylvania Department of Transportation, 9.2 percent of registered voters in Pennsylvania lack state-issued voter ID, but the number is 18 percent in Philadelphia, which is 44 percent African-American. Another study based on the state’s data found that voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID. Voters in Hispanics and Asians neighborhoods are also twice as likely to lack IDs relative to white voters.

Finally, on a practical level, Pennsylvania is unprepared to implement the law. “Petitioners did not establish that greater injury will occur from refusing to grant the injunction than granting it,” Simpson claimed. “This is because the process of implementation in general, and of public outreach and education in particular, is much harder to start, or restart, than it is to stop.” But at the trial, Pennsylvania officials admitted that they didn’t know how many voters lack the correct ID and have allocated funding for only 75,000 “free” voter ID cards, even though the department of transportation found that ten times as many voters may lack valid ID. Nor is the state equipped to handle all of the people who will need to get ID. “There were 71 PennDot offices, but 13 of them were only open one day a week,” Slate’s Dave Weigel noted. “Nine Pennsylvania counties have no PennDot office at all.” Added the Philadelphia Inquirer: “In recent visits to the Department of Transportation’s offices, the witnesses said, they found long lines, short hours, and misinformed clerks, which made obtaining voter identification cumbersome, and in some cases impossible, for those who don’t have supporting documentation.”

According to the department of transportation, 758,000 registered voters do not have state-issued ID. Matt Barreto, professor of political science at University of Washington, found that more than a million registered Pennsylvania voters lacked sufficient ID and that 379,000 don’t have the underlying documents, such as a birth certificate, needed to obtain the right ID. Simpson dismissed these studies and claimed that voters without ID would be able to vote with an absentee ballot (providing that they can get a doctor’s note confirming their illness) or with a provisional ballot (which may or may not be counted). Simpson’s logic in this regard doesn’t make much sense. It would be a lot easier to block the voter ID law and run the 2012 election like every other election in Pennsylvania history than to implement a costly, confusing and hasty new law.

University of California–Irvine law professor Rick Hasen, author of The Voting Wars, summarized his reasons for opposing the ruling.

I disagree with the ruling on the merits on a couple of grounds.  First, the judge seemed to downplay the burden placed on voters needing to go out and get the voter i.d., such as the costs to poor voters of getting the underlying documents. While burdens on voters would be justified if the law actually served an important purpose, the fact that there is no evidence of impersonation voter fraud to justify a voter i.d.—a point which cannot be emphasized enough—the law would be imposing a burden on voters for no good reason.  And of course it is being imposed for a bad reason: these laws have been favored almost exclusively by Republican legislators likely out of the belief that it will cause a modest decline in Democratic turnout…. Finally, the judge points to “as applied” challenges as the solution.  But these are expensive and difficult to bring—people who lack an i.d. are going to be among the least connected to the legal system, and there is no doubt that most of these voters will now fall through the cracks.  Again, if there were a solid reason for requiring the i.d., this cost would be more justifiable.  But there isn’t.

The plaintiffs are appealing the ruling to the Pennsylvania Supreme Court, which is split 3-3 between Democrats and Republicans. If they deadlock, Simpson gets the final word—in which case, Republicans win and democracy loses.

Read more on the Pennsylvania ruling: “In the Wake of Voter ID Ruling, Pennsylvania Rep Pushes Myth of Voter Fraud.”

Romney-Ryan Economic Plans Would Increase Unemployment, Deepen Recession

Much has been written in recent days about Paul Ryan’s plans to privatize Medicare, dismantle Social Security, massively cut taxes for the wealthy and drastically redistribute income from the bottom to the top.

Yet perhaps the most disturbing feature of Ryan’s budget is that, in the midst of a prolonged recession, it would cost the US economy millions of jobs. Ryan’s 2011 budget plan proposes what the Center for Budget and Policy Priorities calls “the most severe and wrenching budget cuts in US history—two-thirds of which would come from programs for people of low or moderate incomes” (Medicaid, Pell Grants, food stamps and low-income housing). According to the Economic Policy Institute, “The shock to aggregate demand from near-term spending cuts would result in roughly 1.3 million jobs lost in 2013 and 2.8 million jobs lost in 2014, or 4.1 million jobs through 2014.”

Heather Boushey of the Center for American Progress calls Ryan’s budget “austerity on steroids,” while Mike Konczal of the Roosevelt Institute dubs it “bizarro stimulus.” Explains Konczal: “These are arguments that doing things traditionally thought of as the opposite of economic stimulus will be the real stimulus and help bring unemployment down.” (Ryan’s also a fierce critic of actions taken by the Federal Reserve to reduce unemployment.)

Ryan’s new boss, Mitt Romney, has also pledged to improve the economy while advocating ideas that would actually make the economy worse. Romney economic adviser Glenn Hubbard, chairman of the Council of Economic Advisers under George W. Bush, claims Romney would create 12 million jobs in his first term by capping spending, slashing corporate taxes and repealing healthcare reform and financial reform. Yet a host of prominent economists surveyed by the Washington Post’s Greg Sargent found that “Romney’s ideas would do little or nothing to fix the immediate crisis, and could in the short term make things worse.” Said Mark Hopkins, senior adviser at Moody’s Analytics: “On net, all of these policies would do more harm in the short term. If we implemented all of his policies, it would push us deeper into recession and make the recovery slower.”

In contrast, the jobs plan introduced by Barack Obama last September would create 1.9 million jobs and reduce the unemployment rate by a full percentage point, according to Mark Zandi, chief economist at Moody’s. That’s not enough to turn the US economy completely around, but it’s a whole lot better than what Romney and Ryan are proposing.

Read more of The Nation’s coverage of Paul Ryan: Bryce Covert, “Paul Ryan’s Budget Deals a Body Blow to Women’s Bottom Line.” And remember when Paul Ryan gave the Republican response to the State of the Union? Katrina vanden Heuvel took apart his budget back then, in “Paul Ryan, the Republicans’ ‘Thinker.’ ”

Ohio Early Voting Cutbacks Disenfranchise Minority Voters

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On Election Day 2004, long lines and widespread electoral dysfunction marred the results of the presidential election in Ohio, whose electoral votes ended up handing George W. Bush a second term. “The misallocation of voting machines led to unprecedented long lines that disenfranchised scores, if not hundreds of thousands, of predominantly minority and Democratic voters,” found a post-election report by Democrats on the House Judiciary Committee. According to one survey, 174,000 Ohioans, 3 percent of the electorate, left their polling place without voting because of the interminable wait. (Bush won the state by only 118,000 votes).

After 2004, Ohio reformed its electoral process by adding thirty-five days of early voting before Election Day, which led to a much smoother voting experience in 2008. The Obama campaign used this extra time to successfully mobilize its supporters, building a massive lead among early voters than John McCain could not overcome on Election Day.

In response to the 2008 election results, Ohio Republicans drastically curtailed the early voting period in 2012 from thirty-five to eleven days, with no voting on the Sunday before the election, when African-American churches historically rally their congregants to go to the polls. (Ohio was one of five states to cut back on early voting since 2010.) Voting rights activists subsequently gathered enough signatures to block the new voting restrictions and force a referendum on Election Day. In reaction, Ohio Republicans repealed their own bill in the state legislature, but kept a ban on early voting three days before Election Day (a period when 93,000 Ohioans voted in 2008), adding an exception for active duty members of the military, who tend to lean Republican. (The Obama campaign is now challenging the law in court, seeking to expand early voting for all Ohioans).

The Romney campaign has recently captured headlines with its absurd and untrue claim that the Obama campaign is trying to suppress the rights of military voters. The real story from Ohio is how cutbacks to early voting will disproportionately disenfranchise African-American voters in Ohio’s most populous counties. African-Americans, who supported Obama over McCain by 95 points in Ohio, comprise 28 percent of the population of Cleveland’s Cuyahoga County but accounted for 56 percent of early voters in 2008, according to research done by Norman Robbins of the Northeast Ohio Voter Advocates and Mark Salling of Cleveland State University. In Columbus’s Franklin County, African-Americans comprise 20 percent of the population but made up 34 percent of early voters.

Now, in heavily Democratic cities like Cleveland, Columbus, Akron and Toledo, early voting hours will be limited to 8 am until 5 pm on weekdays beginning on October 1, with no voting at night or during the weekend, when it’s most convenient for working people to vote. Republican election commissioners have blocked Democratic efforts to expand early voting hours in these counties, where the board of elections are split equally between Democratic and Republican members. Ohio Republican Secretary of State Jon Husted has broken the tie by intervening on behalf of his fellow Republicans. (According to the Board of Elections, 48%* of early voters in Franklin County voted early on nights or weekends, which Republicans have curtailed. The number who voted on nights or weekends was nearly 50% in Cuyahoga County.)

"I cannot create unequal access from one county board to another, and I must also keep in mind resources available to each county,” Husted said in explaining his decision to deny expanded early voting hours in heavily Democratic counties. Yet in solidly Republican counties like Warren and Butler, GOP election commissioners have approved expanded early voting hours on nights and weekends. Noted the Cincinnati Enquirer: “The counties where Husted has joined other Republicans to deny expanded early voting strongly backed then-candidate Barack Obama in 2008, while most of those where the extra hours will stand heavily supported GOP nominee John McCain.” Moreover, budget constraints have not stopped Republican legislators from passing costly voter ID laws across the map since 2010.

The cutbacks in early voting in Ohio are part of a broader push by Republicans to restrict the right to vote for millions of Americans, particularly those who voted for Obama. “The Republicans remember those long lines outside board of elections last time in the evenings and on weekends,” Tim Burke, Democratic Party chairman in Cincinnati’s Hamilton County, told the Enquirer. “The lines were overwhelmingly African-American, and it’s pretty obvious that the people were predominately—very predominately Obama voters. The Republicans don’t want that to happen again. It’s that simple.”

Ohio in 2012 is at risk of heading back to the dark days of 2004. “Voting—America’s most precious right and the foundation for all others—is a fragile civic exercise for many Ohioans,” the Enquirer wrote recently.

*August 23, 2012: This figure has been updated due to an error discovered and corrected in the source material. 

Ten Takeaways From Pennsylvania’s Voter ID Trial

Update, August 15, 2012: Judge Robert Simpson has refused to grant an injunction to halt implementation of Pennsylvania's voter ID law. Opponents will appeal the decision. We'll have more on the ruling soon, but in the mean time, here are Ari Berman's takeaways from the trial.

The two-week trial challenging the constitutionality of Pennsylvania’s voter ID law ended today. Here’s what we learned from the proceedings. Suffice to say, Pennsylvania Republicans didn’t come out looking very good.

1. A lot of voters don’t have valid voter ID. University of Washington political scientist Matt Barreto, a witness for the plaintiffs (the suit was brought by the ACLU, the Advancement Project and other voting rights groups), found more than 1 million registered voters in Pennsylvania—12.8 percent of the electorate—don’t have sufficient voter ID. Moreover,379,000 registered voters don’t have the underlying documents, such as a birth certificate, needed to obtain the right ID; 174,000 of them voted in 2008.

2. The state doesn’t know its own law very well. During the debate over the law in the state legislature, Secretary of the Commonwealth Carole Aichele repeatedly stated that 99 percent of Pennsylvania voters had the right ID. A subsequent study by the Pennsylvania Department of Transportation found that 758,000 registered voters, 9.2 percent of the electorate, lacked a state-issued PennDot ID. During the trial, Pennsylvania State Department official Rebecca Oyler testified that she calculated the “99 percent have ID” figure in less than twenty-four hours while lacking sufficient data from the department of transportation. When pressed on the specifics of the law and the number of people who lack voter ID, Aichele responded: “I don’t know what the law says.”

Pennsylvania Governor Tom Corbett was similarly clueless when asked what forms of ID besides state-issued ID are valid for voting purposes. “The other forms of ID can be student ID.” Corbett said. “We’ve been working with the nursing homes to get people new ID. It can be military ID. There’s two or three other forms—right now, off the top of my head, I don’t have it here in front of me.”

3. The state is unprepared to implement the law. Pennsylvania has allocated funds for only 75,000 “free” voter ID cards, even though the department of transportation found that ten times as many voters may lack valid ID. Nor is the state equipped to handle all of the people who will need to get ID. “There were 71 PennDot offices, but 13 of them were only open one day a week,” Slate’s Dave Weigel noted. “Nine Pennsylvania counties have no PennDot office at all.” Added the Philadelphia Inquirer: “In recent visits to the Department of Transportation’s offices, the witnesses said, they found long lines, short hours, and misinformed clerks, which made obtaining voter identification cumbersome, and in some cases impossible, for those who don’t have supporting documentation.”

4. There is no voter fraud in Pennsylvania or nationally. At the beginning of the trial, the state offered this remarkable admission in a court filing: “There have been no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do not have direct personal knowledge of any such investigations or prosecutions in other states.” Essentially, the state conceded that its central rationale for the voter ID law—stopping “voter fraud”—turned out to be moot.

5. The law will help Republicans. GOP House Leader Mike Turzai was on to something when he said that voter law ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” Barreto testified that if the voter ID law had been on the books in 2008, Obama would’ve lost Pennsylvania by 200,000 votes, rather than winning by 621,000 votes.

6. The law is discriminatory. According to the department of transportation, 9.2 percent of registered voters in Pennsylvania lack state-issued voter ID, but the number is 18 percent in Philadelphia, which is 44 percent African-American. A new study based on the state’s data finds that voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID. Voters in Hispanics and Asians neighborhoods are also twice as likely to lack IDs relative to white voters.

7. Voters don’t know about the law. According to Barreto, 86 percent of eligible voters in Pennsylvania posses a valid voter ID but 99 percent of registered voters believe they have the right ID. Only a third of registered voters are aware of the law (though maybe that’s changed as a result of the trial).“When will those people learn that their ID is not valid?” writes the Pennsylvania ACLU. “Most likely, when they show up to vote.”

8. Pennsylvania believes voting is a privilege, not a right. Said Pennsylvania Deputy Attorney General Patrick Cawley: “To be sure, voters do share some responsibility to obtain an ID and to get themselves to the polls. The law does not require the commonwealth to eliminate all inconveniences.” In other words, if the state law disenfranchises voters, it’s the voters’ fault.

9. The legal battle isn’t over. Judge Robert Simpson has promised a ruling the week of August 13, but also said, “Take heart, I’m not the last level in this matter.” His decision is expected to be appealed to the state supreme court, which is currently split 3-3 between Democratic and Republican judges. If they deadlock, Simpson has the final word (unless the case goes to the Supreme Court).

10. After observing the trial, many legal observers believe Simpson will issue an injunction against the voter ID law, as occurred with Wisconsin’s voter ID law. “The more I hear about the trial, the more convinced I am that a fair-minded judge (which this trial judge certainly appears to be) would be likely to issue a preliminary injunction barring the use of the i.d. requirement in the November election,” wrote UC-Irvine law professor Rick Hasen. Added Penda Hair of the Advancement Project: “We think this should be a slam dunk victory for plaintiffs which should result in a preliminary injunction.”

For more on voting rights and the 2012 election, check out our blog, Voting Rights Watch 2012.

Pennsylvania Voter ID Law Goes to Court

Tomorrow the Commonwealth Court of Pennsylvania will hear a challenge to the state’s new voter ID law from the ACLU and other voting rights groups. The lead plaintiff is Viviette Applewhite, a 93-year-old great-great grandmother who marched with Martin Luther King Jr. Applewhite worked as a hotel housekeeper and never had a driver’s license. Four years ago, her purse was stolen and she lost her Social Security card. Because she was adopted and married twice, she cannot obtain the documents needed to comply with the state’s voter ID law. After voting in every election for the past fifty years, she will lose the right to vote this November.

The ACLU will argue that Pennsylvania’s voter ID law needlessly disenfranchises voters like Applewhite and violates Article I, Section 5, of the state constitution, which states: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” As in Wisconsin, where two federal judges have blocked that state’s voter ID law, the Pennsylvania Constitution affords strong protections to the right to vote. (The Justice Department is also investigating whether the law violates Section 2 of the Voting Rights Act.)

Recent developments in Pennsylvania have transformed the debate over voter ID laws locally and nationally. The first turning point came last month, when Pennsylvania GOP House Leader Mike Turzai said the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” Turzai’s comment clarified, once and for all, the real intent of GOP-backed voter ID laws. They’re not aimed at combating the phantom menace of voter fraud—indeed, Pennsylvania just admitted in court filings that there “have been no investigations or prosecutions of in-person voter fraud in Pennsylvania”—but rather at suppressing Democratic turnout in order to benefit Republican candidates.

The second turning point came a few weeks later, when the Pennsylvania Transportation Department found that 9.2 percent of registered voters, 758,000 Pennsylvanians, don’t have the state-issued IDs required to vote under the law. The number of voters without ID was larger than the margin of Barack Obama’s victory over John McCain in Pennsylvania in 2008. That bombshell contradicted Pennsylvania Secretary of State Carol Aichele’s oft-repeated claim that 99 percent of eligible voters possessed the requisite IDs. The Department of Transportation didn’t release the exact demographic breakdowns of who did not have IDs, but it did find that 18 percent of voters in Philadelphia, a heavily Democratic city that is 44 percent African-American, did not have valid state-issued IDs.

In fact, the number of voters lacking voter ID may be even higher than the state’s estimate. According to a new study [pdf] by University of Washington political scientist Matt Barreto, more than 1 million registered voters in Pennsylvania—12.8 percent of the electorate—don’t have valid voter ID. Furthermore, only 34 percent of registered voters are aware of the law but 98 percent of registered voters believe they have the right ID. That’s a huge gap between perception and reality with regards to the law.

Who are the voters without ID? Writes Barreto:

“There are several statistically significant differences in possession rates of valid photo ID across subgroups of the population. Specifically, female eligible voters lack ID at higher rates (17.2%) than do males (11.5%). Latino eligible voters lack ID at higher rates (18.3%) than do non-Hispanic Whites (14.0%). The elderly (over age 75) lack ID at higher rates (17.8%) than middle-aged residents (10.3%) and younger respondents (age 18-34) also lack at higher rates (17.9%). Eligible voters who make less than $20,000 annually are more likely to lack a valid photo ID (22%) than all other income categories, most notably those who make $80,000 or more (8.2%), and finally 18.5% of respondents who did not complete high school lack an ID compared to 8.3% among college graduates.”

Moreover, obtaining the correct ID from the state isn’t as easy as one would presume, Barreto notes. 

“In order to obtain a valid photo ID, residents of Pennsylvania need to provide documentary proof of citizenship, a Social Security card, and proof of address. Among eligible voters who currently lack a valid ID, 27.6 percent do not have at least one of the three required underlying documents needed to obtain a valid photo ID. Overall, this represents an estimated 379,009 citizen, adult, eligible voters in Pennsylvania.”

According to the Brennan Center for Justice, 2 million Pennsylvanians—24 percent of state’s voting-age citizens—live more than ten miles from the nearest DMV or ID-issuing office. Of that number, 135,000 people don’t have a car.

In response to public outcry, Pennsylvania has decided to make available a backup ID for those who cannot produce the documentation necessary to obtain the original voter ID card. The program is supposed to begin next month, but it’s unclear how many Pennsylvanians without ID will take advantage of it or be able to comply with the requirements—two proofs of residence, date of birth and Social Security number. It doesn’t help that the voter education component of the law is being run by GOP operatives with close ties to GOP Governor Tom Corbett and the Romney campaign.

For all these reasons, the trial in Harrisburg tomorrow will have major implications for the 2012 election in Pennsylvania and nationally. Turzai, sadly, will not be testifying on behalf of the state.

Romney's Chilly Reception at the NAACP

In the latest NBC News/Wall Street Journal poll, Barack Obama is beating Mitt Romney among African-American voters by 92 percent to 1 percent. Romney’s speech to the NAACP today isn’t likely to change that dynamic.

Romney was repeatedly booed for vowing to repeal Obamacare (which covers 7 million uninsured African-Americans) and saying he would be a better president for the African-American community than Obama, the nation’s first black president. The room looked rather empty during Romney’s speech, and the “standing ovation” he received at the end was a mere formality.

Most notably, Romney said nothing about the wave of new voting restrictions passed by Republicans since the 2010 election that will disproportionately make it harder for African-Americans to cast a ballot and participate in the political process. NAACP President Ben Jealous has called the new laws “the greatest attack on voting rights since segregation.” A quarter of African-Americans, for example, lack the ID necessary to comply with new voter ID laws passed by Republicans in ten states since 2010—which Romney supports. In Pennsylvania, 10 percent of statewide registered voters lack voter ID but the number is 18 percent in Philadelphia, which is 44 percent African-American. Pennsylvania GOP House Leader Mike Turzai recently said that the state’s voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.”

Black voters are also disproportionately impacted by other prongs of the GOP’s war on voting—such as shutting down voter registration drives, cutting back on early voting and disenfranchising ex-felons—that have been implemented in crucial swing states like Florida (see Brentin Mock’s great piece “Florida to Minorities: Don’t Vote Here.”)

In Florida, African-American voters were twice as likely as white voters to register to vote through nonpartisan voter registration drives run by the likes of Rock the Vote and the League of Women Voters, which had to suspend their registration efforts in the state because of new onerous bureaucratic requirements (a federal judge has subsequently rescinded the law). As a result, black voter registration has declined 10 percent in Florida relative to 2008, according to the Washington Post. African-Americans also made up 54 percent of early voters in 2008; early voting has subsequently been cut from fourteen to eight days, with no voting on Sunday before the election, when black churches historically mobilize their constituents. And it’s virtually impossible for nonviolent ex-felons to cast a ballot in Florida, where African-Americans are 50 percent of the state’s prisoners but only 16 percent of the total population. Of the 7,000 felons purged by Florida in the first four months of 2012, 44 percent were African-American.

Romney’s failure to denounce or acknowledge his party’s efforts to suppress the African-American vote was particularly notable given that his speech took place in Texas, where the Department of Justice has blocked the state’s voter ID law and redistricting plan for violating the Voting Rights Act and diminishing the ability of minority voters to participate in the political process.

So why did Romney address the NAACP? Perhaps he believes he can pry some black votes away from Obama, despite his party’s horrid recent record on civil rights. Perhaps he wanted to seem “reasonable” in the eyes of suburban swing voters and courageous for addressing what he knew would be an unfriendly audience. Or perhaps he thought that getting booed by the NAACP would help him court conservative white working-class voters—the so-called “Southern Strategy” perfected by Richard Nixon. “If I were a political cynic, I’d wonder whether the Romney campaign wanted to be booed at NAACP,” conservative commentator David Frum tweeted. Atlanta Mayor Kasim Reed called Romney’s speech a “reverse Sistah Souljah moment.”

The recession could theoretically give Romney an opening to make a pitch to black voters. African-American unemployment is higher than the national average, rising from 13.6 percent to 14.4 percent last month. Unfortunately, the ideas advocated by Romney and his fellow Republicans, such as laying off more public sector workers, would only bring more pain. According to a UC-Berkeley study flagged by Slate’s Dave Weigel: “21.2% of all Black workers are public employees, compared with 16.3% of non-Black workers.  Both before and after the onset of the Great Recession, African Americans were 30% more likely than other workers to be employed in the public sector.”

Cutting back employment opportunities for African-Americans and making it harder for them to vote is not likely to win the GOP more African-American votes. And by staying quiet on the major civil rights issue of the day—the effort to restrict the right to vote—Romney proved which side he was on. After Romney’s speech, the NAACP asked its members to phone bank for voting rights.

Discriminatory Texas Voter ID Law Challenged in Federal Court

This week the state of Texas will try to persuade a federal court in Washington to uphold its voter ID law. The facts, however, are not on Texas’s side.

In March the Justice Department blocked the state’s voter ID law, saying it violated Section 5 of the Voting Rights Act by discriminating against minority voters. DOJ found that “over 600,000 registered voters do not have either a driver’s license or personal identification card issued by [the Department of Public Safety]—and that a disproportionate share of those registered voters are Hispanic.”

Wrote Assistant Attorney General Tom Perez:

We conclude that the total number of registered voters who lack a driver’s license or personal identification card issued by DPS could range from 603,892 to 795,955. The disparity between the percentages of Hispanics and non-Hispanics who lack these forms of identification ranges from 46.5 to 120.0 percent. That is, according to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.

In court today, the Justice Department argued that the number of voters without ID is, in fact, double what the state estimated. “At least 1.4 million registered voters in Texas lack any form of state-issued ID accepted under [the law], and those voters are disproportionately Hispanic and black,” said DOJ lawyer Elizabeth Westfall.

Hispanics in Texas, who vote solidly Democratic, are not only more likely to lack ID compared to white voters, but will have a harder time obtaining the voter ID required by the state. There are DMV offices in only eighty-one of the state’s 254 counties. Not surprisingly, counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have the right ID. Hispanics in Texas are also twice as likely as whites to not have a car. “During the legislative hearings, one senator stated that some voters in his district could have to travel up to 176 miles roundtrip in order to reach a driver’s license office,” wrote DOJ.

The law also places a significant burden on low-income residents. Texas is required to provide a free ID to voters, but an applicant must possess supporting documentation in order to qualify. “If a voter does not possess any of these documents, the least expensive option will be to spend $22 on a copy of the voter’s birth certificate,” DOJ noted. That expenditure can be rightly construed as a poll tax, which the Voting Rights Act of 1965 prohibited.

Texas Republicans, as in other states, claim the law is needed to combat so-called “voter fraud.” Governor Rick Perry said the state had “multiple cases of voter fraud”—even though there were just five complaints of voter impersonation in Texas during the 2008 and 2010 elections out of 13 million votes cast. The real purpose of the voter ID law, which passed the state legislature at the beginning of 2011 as “emergency” legislation, is to benefit Republicans. For example, a handgun permit is considered an acceptable form of ID but a university ID is not. The law is yet another way Texas Republicans are trying to dilute the Democratic-leaning youth and minority vote in the state. (In the 2008 election, Barack Obama won just 26 percent of the white vote in Texas, but 63 percent from Hispanics and 98 percent from African-Americans. He beat John McCain among 18-to-29-year-olds in Texas but lost among every other age group.)

Texas has the dubious distinction of being the only place where the DOJ has blocked the state’s redistricting plan and its voter ID law, for diminishing the ability of minority voters to participate in the political process. Hispanics and African-Americans accounted for 80 percent of Texas’s booming population growth between 2000–10, yet the redistricting plan passed by Texas Republicans last year actually decreased the number of seats in Congress and the state legislature where minority voters will be able to elect a candidate of their choice. As a result, white Republicans, although now a demographic minority in the state, will be able to retain a huge political majority for the next decade. The League of Women Voters called it “by far the most extreme example of racial gerrymandering among all the redistricting proposals passed by lawmakers so far this year.” (The Texas redistricting map also has yet to be precleared in federal court.)

If a three-judge federal court panel rules against the state’s voter ID law, Texas has vowed to challenge the constitutionality of Section 5 of the Voting Rights Act, which requires parts or all of sixteen states with a history of racial discrimination to clear any voting changes with the federal government to make sure they do not adversely impact minority voters. Attorney General Eric Holder has called Section 5 the “keystone of our voting rights.” (Texas has lost more Section 5 enforcement suits than any other state.) Already, Republicans in four states (Alaska, Arizona, Florida and South Carolina) and two local jurisdictions (in Alabama and North Carolina) are challenging the constitutionality of Section 5. A case originating in Shelby County, Alabama, is likely to reach the Supreme Court this year or next. According to a study by Columbia University law professor Nate Persily, “there have been more challenges to the Voting Rights Act in the past two years than in the previous 45 years combined,” reports Reuters. The Texas Republican Party platform goes even further, calling for repeal of the entire Voting Rights Act of 1965.

Yet the wave of restrictive voting laws passed by Republicans since the 2010 election proves that the Voting Rights Act is as important as it ever was. Texas, in many ways, is emblematic of how conservatives are responding to an increasingly diverse electorate by passing laws that dilute minority voting rights. Texas Congressman Charlie Gonzales, chair of the Congressional Hispanic Caucus, calls the state’s redistricting plan and voter ID law “exhibits A and B as to why Texas needs scrutiny under Section 5.”

Addendum: I discussed Texas’s voter ID law and other voting rights news on Democracy Now! this morning

Florida Voter Purge Is Unlikely to Resume

Last week Florida federal district court judge Robert Hinkle ruled against the Justice Department’s motion for a temporary injunction against Florida’s voter purge. The ruling was widely portrayed as a victory for the state, by Florida Governor Rick Scott and many in the media.

Yet the ruling itself was less of an endorsement for Florida and more of a rebuke. “There were major flaws in the program,” Hinkle wrote. “The [Florida secretary of state] compiled the list in a manner certain to include a large number of citizens…The program was likely to have a discriminatory impact on new citizens.” Hinkle ruled in favor of the state “primarily because the Secretary has abandoned the program.”

In case you’ve forgotten, Florida’s voter purge was riddled with errors (“98.4% of the 2,625 people identified by the Florida SOS as ‘potential noncitizens’ remain on the rolls because the Supervisors of Elections found insufficient evidence that they were ineligible to be registered voters,” found University of Florida political science professor Daniel Smith), racially biased (minorities comprised 80 percent of the list but only 30 percent of Florida’s population) and blatantly partisan (Democrats outnumbered Republicans by two to one). That’s why Florida’s supervisors of elections overwhelmingly refused to implement the purge—which remains their position following Judge Hinkle’s ruling.

“The supervisors are where we were before—we’ve stopped the purge,” Vicki Davis, president of the Florida State Association of Supervisors of Elections, told me. “The list was much too flawed for the elections supervisors to move forward with in the same format and without backup documentation.”

“We’re not going to see any further activity in most of the counties in the state’s direction,” adds Ion Sancho, supervisor of elections in Tallahassee’s Leon County. “It’s just too close to the election at this point.”

Two heavily Republican counties, Collier and Lee, are the exceptions, comprising 65 percent of the 107 potentially ineligible voters purged in Florida from early April to early June. Collier County, which includes Naples, removed 26 alleged “non-citizens” from the rolls based on the state’s list—eight of whom did not respond to contact attempts from the county to determine whether they were or were not citizens. “The worst-case scenario is that we’ve wrongfully removed somebody from the rolls,” says Tim Durham, the county’s deputy elections supervisor. If that’s the case, legitimate voters wrongly branded as “non-citizens” would have to cast a provisional ballot, which may or may not be counted (Durham says two-thirds of provisional ballots are counted in Collier County).

Lee County, home to Fort Myers and fittingly named after the Confederate general, is the other rogue county—and the only one in the state still purging voters. Lee removed forty-four suspected “non-citizens” from its rolls from April to June, according to Daniel Smith, but only two were from the state’s list. The other forty-two were evidently based on the county’s records of people who identified as non-citizens in order to avoid jury duty, a highly unreliable way to determine citizenship. (Lee County election officials were out of the office and did not respond to interview requests).

So what happens now? Collier is one of five counties in Florida subject to Section 5 of the Voting Rights Act (VRA), meaning it must seek approval from the federal government to make sure any voting change does not discriminate against minority voters (which the county failed to do). The Justice Department, whose lawsuit against Florida under the National Voter Registration Act is moving forward in Hinkle’s court, could also challenge the voter purge under Section 5. The ACLU and Lawyers Committee for Civil Rights are already suing Florida under that provision, alleging that the counties needed preclearance for the voter purge, while the Advancement Project and other voting rights groups filed another lawsuit under Section 2 of the VRA, noting the purge’s discriminatory impact.

Florida has said the voter purge will not resume unless the state gains access to the Department of Homeland Security’s SAVE database—which tracks government benefits for non-citizens and is not intended as a tool for purging ineligible voters. “The State's insistent claim that access to the federal Systematic Alien Verification for Entitlements (SAVE) program will resolve any deficiencies in the current match process seriously overstates the usefulness and accuracy of SAVE for the purposes of verifying names in a voter list maintenance program,” writes the Brennan Center for Justice. Moreover, Florida lacks the identifiers necessary to properly use the database.

Yet although the purge remains suspended, Florida has yet to admit to any wrongdoing or to address the widespread confusion surrounding the program, which may scare some minority voters away from the polls in November for fear of retaliation. “The state needs to publicly acknowledge, to both election officials and voters, that there were errors, that they’re checking to make sure no one has been wrongfully removed and that the list won’t be used anymore,” says Diana Kasdan, counsel at the Brennan Center’s democracy program.

Judge Hinkle ended his opinion with a warning to the state. “If the secretary or the supervisors of elections go forward with the program the secretary says he has abandoned,” he wrote, “the issue can be revisited.”

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