Last week, during a press conference hosted by House Democrats revealing their new Voting Empowerment Act legislation, Representative Jim Clyburn dropped a bomb of a statement, picked up by The Hill:
“Voter ID is not a problem. Everybody that goes to vote shows some form of ID,” Clyburn said. “The big problem has been the process…you go through to get there.”
Was this just a super-regrettable error, another poor choice of words—today he was rebuked by the Obama campaign for accusing Mitt Romney’s Bain Capital of “raping” companies—or is Clyburn throwing in the towel on the voter ID fight?
I wasn’t able to get clarity from the congressman himself. His office informed me that the proper context for his statement was that the problem is with the states that are administering the laws—for example, states that allow concealed weapon IDs to vote, but not student IDs. But you’d have to forgive someone if they weren’t able to derive that context from the statement Clyburn actually made. For voting rights advocates, it sounded like Clyburn threw voter ID proponents a free ticket. I can already see True the Vote making T-shirts out of the statement with a picture of Clyburn with Martin Luther King.
Clyburn’s state, South Carolina, is currently embroiled in a legal battle with the US Department of Justice over a photo voter ID law that Governor Nikki Haley signed into law last year. The law was blocked because DOJ found that over 230,000 residents, mostly African-Americans, lacked the proper ID needed for voting, and the state failed to produce any evidence of the voter fraud they said they needed the law for. South Carolina sued DOJ in response and federal judges are still deliberating the case.
But Clyburn’s pessimism around overturning the photo voter ID law began earlier this month. Speaking to Democrat activists in early May, Clyburn—who has a long history of overcoming seemingly insurmountable obstacles to civil and voting rights—said, “I just do not trust the judiciary that we’re operating under.” In other words, he told them they’d better organize, because it ain’t looking good with the men in robes.
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He may be on to something. Not long after the VEA announcement, a federal appeals court rejected an Alabama county’s challenge to the Voting Rights Act’s Section 5, stating that it’s still constitutional and still necessary in today’s context. That is a good thing, but as election law professor Rick Hasen has pointed out, the dissenting judge in the appeals court’s three-judge panel apparently set it up so that the Supreme Court could overturn Section 5, the keystone of the Voting Rights Act, which itself is an essential component of the civil rights legislation won in the 1960s. Says Hasen, the dissenting judge “has provided a way for the conservatives on the Supreme Court to end Section 5 without having to declare that it would necessarily be unconstitutional if Congress tweaked it.”
Jeffrey Toobin made a similar observation today in The New Yorker.
Losing faith in the courts is one thing, though, but Clyburn very clearly said that voter ID laws aren’t even a problem—a statement that left even fellow voting rights activists puzzled. Liz Kennedy, counsel for Demos Democracy Program, told me she was “a little surprised” by Clyburn’s statement, but figured Clyburn probably meant to emphasize the “creaky systems” of voting—voter registration problems, and loose guidelines that allow for intimidation at the pools—that “lead to more people not being able to cast a vote.”
Judith Browne Dianis, co-director of the civil rights organization Advancement Project told me that “Clyburn is right,” but only on the fact that federal law (Helping Americans Vote Act or HAVA) does require an ID for first-time voters when they register. The difference, says Browne Dianis, “is that just like with the TSA, the law allows for multiple forms of ID. On the other hand, state photo ID restrictions allow only one form of ID and the underlying documents needed to get it, like official birth certificates, are extremely difficult, and even expensive, for many people to acquire.”
In South Carolina, there are counties where as many as 14 percent of residents don’t have the specific state government-issued ID that would be required under the voter ID law. Seven of the counties with the highest percentages of ID-less registered voters are among the ten counties with the highest percentage of voters of color, according to the Department of Justice.
The VEA doesn’t address photo voter ID laws. But it does address major problems such as finally getting the voter registration house in order after years of risky Jenga-playing with it have left it with so many holes that it’s bound to soon topple in the messiest of ways. According to the Cooperative Congressional Election Study, 9 million voters were prevented from voting in 2008 as a result of residency rules or registration deadlines, and as many as 3 million couldn’t vote because of problems with their registrations. As long as the voter registration system is prone to errors, then conservatives will claim that as voter fraud, making it easier for courts to sympathize with photo voter ID laws. At that point, we’ll have moved from Americans voting to choose their government to people in government choosing who gets to vote.
