I spent hundreds of hours talking about the law on the radio this year but one question, one exchange, especially sticks out. It was this summer, a few weeks after the five conservative justices of the United States Supreme Court extinguished the heart of the Voting Rights Act in Shelby County v. Holder. The station's host had with him a local lawmaker who supported voter identification efforts underway in her state. "If I need to show identification at a pharmacy to get cold medicine" she asked me on the air, "why shouldn't I have to show identification to vote?"
It's a question loaded with import as we begin what promises to be yet another year of voter suppression in America. For it's a question that Republican officials and other supporters of voting restrictions have been asking all over the country over the past few years, in countless iterations, as they relentlessly push ahead with measures that purport to ensure "fairness" and "accuracy" in voting but that are designed instead to disenfranchise the poor and the elderly, the ill and the young, and, most of all, people of color.
They ask that question in Florida and in Texas and in North Carolina and in Virginia, in virtually every state that was, until last June, encumbered by Section 4 of the Voting Rights Act. And they ask that question in Pennsylvania and Wisconsin and Ohio. They ask that question wherever partisan efforts are underway to further cleave the electorate into haves and have-nots. It's a question as simple as it is flawed, one that polls well even though it is based upon a series of self-perpetuating myths.
The challenge for those who oppose these new restrictions, for those who believe the current generation of voter suppression laws are a pernicious assault on core democratic values, is to find an answer to that question that creates traction among the American people. That answer must make it clear why—as a matter of law, politics, history, and morality—going into a pharmacy (or boarding an airplane, or buying liquor) is (and ought to remain) a different American experience from going into a voting booth to cast a ballot.
You know who had a good answer for this variety of question? Richard Nixon. In 1957, after the Senate passed an amendment that watered down that year's already-diluted civil rights legislation, Eisenhower's vice president said, "This is one of the saddest days in the history of the Senate. It was a vote against the right to vote." And so are votes today for these new ID laws. They are votes against the ability of fellow citizens to cast a ballot or to have that ballot counted. They are votes that are hostile to the least powerful, the most vulnerable, among us.
What did I do when confronted with that question on the radio? I told my host and his guest, the elected official, that most Americans have a constitutional right to vote but no constitutional right to cold medicine. Alas, there wasn't nearly enough time, and it certainly wasn't the proper venue, to respond as fully as I would have liked. That time now has come. There are many good answers to the dubious question at the heart of the voter suppression fight. Here are a few of them.
Registered voters already have to show identification.
If I need to show identification to get cold medicine, why shouldn't I have to show identification to vote? First of all, the premise of the question is false. Registered voters today do have to identify themselves in order to vote—and they always have. They have to provide proof of who they are and have that identification checked against registration records. For centuries, the vast majority of American citizens have done this accurately and honestly, using a variety of documents that establish their citizenry and/or their place of residence.
The central question surrounding the new voter identification laws instead is what type of identification registered voters now must show to cast a ballot or to have that ballot counted in our elections. In the name of combating "voter fraud," or preserving what we now euphemistically call "ballot integrity," this argument posits that some of the old forms of identification—like a receipt from the electric company—are insufficient. So lawmakers now seek to require voters to get new forms of ID—like state-issued photo cards akin to driver's licenses.
Now, if you can afford to drive and already have a driver's license, the idea of obtaining such a government-issued photo identification is no big deal because it was no big deal to you when you first got your license. You drove (or were driven by family or friends) to a licensing office, you waited in a line, and you got your card. The whole episode took a few hours—and then you largely forget about the process for the next five years or so, until you lost your license or had to renew your old one.
But if you cannot afford to drive, and thus don't need a driver's license, the idea of getting a photo identification is much more daunting. Since you don't drive, it's difficult to get to and from a government office to get your new photo identification. Maybe most of your friends and family don't drive, either. Or maybe you are too old or too ill to get behind the wheel. Or maybe you cannot get time off from your hourly job. Or maybe the cost of getting there, in terms of transportation fees and lost work hours, is prohibitive. Here's how the ACLU puts it:
Research shows that more than 21 million Americans do not have government-issued photo identification; a disproportionate number of these Americans are low-income, racial and ethnic minorities, and elderly. Voter ID laws have the potential to deny the right to vote to thousands of registered voters who do not have, and, in many instances, cannot obtain the limited identification states accept for voting. Many of these Americans cannot afford to pay for the required documents needed to secure a government-issued photo ID.
Which is why the partisan marketing effort surrounding these new measures is as cynical as it is shrewd. It divides and conquers, relying either on the self-satisfaction or the indifference many Americans feel about the progress that has been made toward ending racial discrimination in voting. More than that, the pitch tugs on some of the most ancient inequalities that were built into our legal system. In 1790, don't forget, only monied, male property holders were permitted to vote in 10 of the 13 original states.
The new voter identification laws divide rich from poor and, in so doing, further separate whites from people of color. To upper- and middle-class citizens who drive, new voting rules don't seem like a big deal. And if they are a very big deal to low-income citizens, so what? The poor have no lobbyists in Washington; they contribute to no PACs. From the Republican perspective, the genius of these laws is that they mask great racial inequality—which is unconstitutional and poor political optics—with great economic inequality—which sadly is neither.
Voter fraud is even more of a myth today than it was in 2012.
Implicit in the cold medicine question is the idea that new voting restrictions are necessary to solve the growing problem of voter impersonation or other kinds of "voter fraud"—that it should be at least as difficult to exercise the right to vote as it is to buy cold medicine. In the same way we don't want teenagers to so easily get the ingredients they need to make methamphetamine, we don't want people who shouldn't be voting casting a ballot that dilutes the votes of citizens who are dutifully registered to vote. It should be harder to vote, goes this theory.
But the assumption behind that theory is demonstrably false. Surely we can all agree that government restrictions on the ability of citizens to vote should be only broad enough to protect all voters from legitimate inaccuracies in our voting systems. Exercising the right to vote should be only so hard as is necessary to protect everyone's right to cast an accurate ballot. But if 2013 proved anything, it proved that the core partisan justification for voter ID laws—voter fraud—is virtually non-existent where it has been invoked to disenfranchise citizens.
In Iowa, for example, a Republican search for "voter fraud" in 2013 cost about $150,000 and revealed just a handful of cases statewide. As the year ended, those officials responsible for the probe were under investigation for misusing the money. In Ohio, Ari Berman reported last month, ".00023 percent of votes in 2012 were referred for prosecution, none have resulted in a conviction so far, and none would have been stopped the legislature’s proposed voting restrictions."
In South Carolina, the news on "voter fraud" in 2013 came in July when the AP reported that "no one intentionally cast a ballot in South Carolina using the names of dead people in recent elections, despite allegations to the contrary." In September, a Tampa Bay Times editorial described "voter fraud" as a "phantom." In Texas, the Attorney General who is running for governor on the state's new ID law has, since 2004, prosecuted 66 people statewide for any kind of voting fraud—and only four of those cases would have been blocked by the new identification law.
The false cry of "voter fraud" must be answered as resolutely as was the "birther" cry, or any other half-crocked conspiracy theory unsupported by facts. And this mandate ought to extend to journalists covering this front in the partisan war. It is no longer acceptable, if it ever was, to let stand unchallenged the assertions of officials that new voter identification laws are necessary to prevent "voter fraud." The manifest lack of proof of such fraud, despite earnest efforts to find it, is today as much a part of the story as anything else.
The new voting measures are discriminatory in both intent and effect.
In the same way that the myth of voter fraud may no longer be tolerated, the myth that new voting restrictions are racially neutral must also now be exposed at every turn. Two weeks ago, in a Washington Post story that was largely ignored by other media outlets, two university researchers made public their findings about the extent of the link between voter suppression efforts and minority voting. The headline of the story says it all: "States with higher black turnout are more likely to restrict voting." Here's a sample from the piece:
In a new article, we examined the dominant explanations (and accusations) advanced by both the right and left, as well as the factors political scientists know are important for understanding state legislative activity. We began with no assumptions about the veracity of any claim. What we found was that restrictions on voting derived from both race and class. The more that minorities and lower-income individuals in a state voted, the more likely such restrictions were to be proposed. Where minorities turned out at the polls at higher rates the legislation was more likely enacted.
More specifically, restrictive proposals were more likely to be introduced in states with larger African-American and non-citizen populations and with higher minority turnout in the previous presidential election. These proposals were also more likely to be introduced in states where both minority and low-income turnout had increased in recent elections. A similar picture emerged for the actual passage of these proposals. States in which minority turnout had increased since the previous presidential election were more likely to pass restrictive legislation.
It's not as though these conclusions could have come as a surprise. For years now candid Republican lawmakers have been supporting new voter identification measures in either explicit or implied racial terms. In 2012, for example, a year before the Supreme Court struck down Section 4 of the Voting Rights act, a University of Delaware poll revealed that "support for voter identification laws is strongest among Americans who harbor negative sentiments toward African Americans."
This is the ugly reality that the conservatives on the Supreme Court ignored in Shelby County when they declared that the Voting Rights Act's impositions were no longer justified by racial conditions in the South. We have here the joining of opportunity (state legislatures gerrymandered into Republican majorities) and motive (fear of the coming racial upheaval in the nation's demographics) to produce laws that deprive poor and/or minority citizens of the equal application of laws. We should not be afraid to say this.
Just stop for a minute and ponder what's really happening here. Our economic policies have already widened the gulf between rich and poor, and devastated communities of color. And now these new identification laws aim to undermine the only real power these people have left to combat their dire condition: their right to vote. The only thing subtle about this class warfare is the ability of the American people to delude themselves into the smug belief that it is necessary to ensure "accuracy" and "fairness" in voting.
I believe that same-sex marriage bans are teetering not just because they are constitutionally unsustainable but because enough white, straight, well-off Americans finally came to realize the countless ties that bind them to gay and lesbian Americans. But at precisely the same moment in our history, voter suppression efforts prove that those same white, well-off Americans are losing sight of the countless ties that once bound them to poor and minority citizens. We celebrate burgeoning equality—and then we ignore sprawling inequality.
Just as the nation is awakening to the new concept of equal rights for gay citizens, it is nodding off to the old concepts that animated the civil rights movement and led to the passage of the Voting Rights Act. The rise of these new voter suppression laws, and the tacit embrace of them by otherwise well-meaning people, means we are moving again toward an America in which your right to vote depends upon the color of your skin or the size of your wallet. That was unjust and unfair at the dawning of the Republic, it was so half a century ago when the Civil Rights Act and the Voting Rights Act were passed, and it is so today.
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