Who will be able to vote in this year’s pivotal presidential and Congressional elections? That is a key question, and the answer will be shaped by the wave of new laws in states designed to curb and suppress voting in the name of combating voter fraud that has repeatedly been proved to be virtually nonexistent.
Thirty-two states have some form of voter ID law, and others, via law or executive action, are implementing steps to restrict votes. Since 2010, 11 states, almost all dominated by Republicans, found the time and exerted the effort to pass voter ID laws, all in the ostensible name of fighting the terror of voter fraud.
It took the Majority Leader of Pennsylvania to show that voter fraud is not exactly the only motivator — in the Keystone State, a measure was designed to enable presumptive GOP presidential nominee Mitt Romney to win by cutting nearly 9 percent of voters from the rolls.
Actually, state Rep. Mike Turzai (R) was not the first elected official to commit embarrassing truth when discussing voter ID laws. In New Hampshire, the Republican state Speaker told a tea party gathering that he supported the state’s voter ID law because it would decrease student voting, and: “They’re foolish. Voting as a liberal, that’s what kids do.” What a surprise that in Texas, a concealed weapon permit is acceptable for voting, but a state university-issued student ID is not.
Most of the new voter ID laws make it very hard for people, especially the poor, minorities and elderly, to get acceptable photo IDs when they don’t have them. Older voters who don’t have birth certificates or other supporting documents required to get the photo ID have to pay to get them — and in some Catch-22 cases, they can’t get birth certificates without photo IDs. In Texas, the rural poor who lack IDs could have to drive 100 miles or more to find a place to get one, and most do not have cars. Attorney General Eric Holder has been criticized by the Wall Street Journal for calling this a new poll tax, but he is right — it is an onerous burden on poor people who don’t drive and don’t fly in order to be able to vote, a burden that does not exist for most of us.
There is more. Florida is in the news this week because it finally got the Department of Homeland Security to give it access to a database of alien registrations to enable the state to purge the voter rolls of noncitizens. Florida’s first efforts here resulted in widespread embarrassment, with longtime voters — and native-born citizens — notified they were being barred from the rolls. There are reasons to believe that many more eligible voters will be barred via the purge. And Florida law now bars early voting on Sunday, which has been a prime day for African- American churches to organize buses to take parishioners to the polls.
The Texas law has been challenged by the Justice Department as discriminatory, and a federal court heard the case earlier this month. The panel seemed skeptical that the law was fair, but a similar law in Indiana was upheld 6-3 by the Supreme Court four years ago, ruling that requiring photo identification is not unconstitutional and that the state has a “valid interest” in deterring fraud.
But even if the DOJ loses, cases filed against new state laws are likely to block their implementation, which could help Holder’s boss in November.
Texas is one of several states that come under the preclearance provisions of the Voting Rights Act — but the Supreme Court barely upheld Section V of the VRA in recent years, and it is likely to hear another case in the fall term. Do not be surprised if the court, on a 5-4 vote, demolishes preclearance once and for all, in the heat of the presidential campaign.
What to do? I believe it is time for a Voting Rights Act of 2012, a new federal law to make federal elections free and fair, with the goal of enhancing the ability of eligible voters to vote, not the opposite. A new VRA would include provisions such as:
• Mandating that any IDs and supporting documents required for voting must be obtainable free, and must be widely available at sites reasonably accessible to all voters, including using mobile vans if there are no offices close to eligible voters.
• Requiring that valid student IDs be accepted on equal terms with any other government-issued ID.
• Mandating that any identification requirement contain a provision to permit any voter who lacks an approved ID to confirm his or her identity, and have his or her vote counted, not as provisional, by signing an affidavit that matches the signature on file with his or her voter registration. Fraudulent signatures would be felony offenses.
• Rewarding states that adopt best voting practices or enact policies that result in voter turnout gains generally, as well as specifically among minorities, young, older and disabled voters. That includes giving states the ability to experiment with incentives such as lotteries to encourage citizens to vote.
• Creating a separate federal ballot. The 2000 presidential contest’s infamous “butterfly ballot” in Palm Beach County, Fla., and other disastrous disputes over vote intentions and totals, including the 2008 House vote across the state in Sarasota, flowed from too many local and state contests crammed into one ballot, along with ballot initiatives and presidential and Congressional elections. A separate federal ballot, using a nationally acceptable format, would have at most three contests (president, Senate, House) and would eliminate costly sideshows such as the 2000 dispute, which add to our partisan division and high levels of voter distrust.
• Changing Election Day to the weekend. Voting on a workday is not written into the Constitution or written in stone; it was adopted in 1845 for practical reasons having to do with Market Day. We no longer have 19th-century economics or transportation, and having weekend voting, combined with early voting on the three weekdays before the weekend, would make it much easier for working people to vote.
The federal government has the constitutional authority to regulate federal elections. Voting is the key to legitimacy in a democracy. It is time to return to a standard that many Americans fought and died for, the right to vote without interference or suppression, and to remove obstacles in the path of legitimate voters that interfere with that right.
Norman Ornstein is a resident scholar at the American Enterprise Institute.