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This article is from the Fall 2014 issue of the The American Prospect magazine.
For the first time in decades, voters in nearly half the country will find it harder to cast a ballot in the upcoming elections. Voters in 22 states will face tougher rules than in the last midterms. In 15 states, 2014 is slated to be the first major election with new voting restrictions in place.
These changes are the product of a concerted push to restrict voting by legislative majorities that swept into office in 2010. They represent a sharp reversal for a country whose historical trajectory has been to expand voting rights and make the process more convenient and accessible.
Although some of these new laws are harsher than others, and some are still being fought in the courts, they have already dramatically altered the landscape for 2014. The outcomes of some of the tightest races this year could turn on the application of controversial new voting rules. Strict voter ID laws have gotten most of the attention, but are only part of the story. Cutbacks to early voting and voter registration opportunities, and other idiosyncratic changes to voting rules, have the potential to do just as much damage.
Why is this happening? Where are the most damaging new laws? What impact could they have in this year’s elections? And how effective are the efforts by voters to push back?
Betty James holds a sign outside the Faith Community Baptist Church in Miami, Sunday, October 28, 2012, as she tries to rally churchgoers to board a bus that would take them to vote early.
Voting Restrictions in Context
First, some perspective. The current assault on voting is highly unusual. Election rules have long been prone to politicization, but the last large-scale push to curb voting access was more than a century ago, after Reconstruction. The first stirrings of a new movement to restrict voting came after the 2000 Florida election fiasco, which taught the unfortunate lesson that even small manipulations of election procedures could affect outcomes in close races. Even so, only a handful of states imposed new restrictions over the decade that followed.
That changed dramatically after 2010, when state lawmakers across the country introduced hundreds of bills to restrict voting. Although many of the new laws passed in that first year were initially blocked or weakened by courts, the Department of Justice, and citizen initiatives, states continued to press new voting restrictions in 2013 and 2014.
What Explains This Sudden Shift?
Partisanship plays a key role. Of the 22 states with new restrictions, 18 passed them through entirely Republican-controlled bodies. A study by social scientists Keith Bentele and Erin O’Brien of the University of Massachusetts Boston found that restrictions were more likely to pass “as the proportion of Republicans in the legislature increased or when a Republican governor was elected.” After Republicans took over state houses and governorships in 2010, voting restrictions typically followed party lines.
Race has been a significant factor. In 2008, voter participation among African Americans and certain other groups surged. Then came backlash. The more a state saw increases in minority and low-income voter turnout, the more likely it was to push laws cutting back on voting rights, according to the University of Massachusetts study. The Brennan Center for Justice likewise found that of the 11 states with the highest African American turnout in 2008, seven passed laws making it harder to vote. Of the 12 states with the largest Hispanic population growth in the 2010 Census, nine have new restrictions in place. And of the 15 states that used to be monitored closely under the Voting Rights Act because of a history of racial discrimination in elections, nine passed new restrictions.
Some laws are especially egregious in targeting how minorities vote. The push to shut down Sunday early voting in states where African American churches organized successful “Souls to the Polls” drives is a glaring example. Laws restricting voter registration drives are another such tactic. African Americans and Latinos register through drives at twice the rate of white citizens, and in recent years, civic groups have used drives to help close the racial registration gap—as they have for veterans, young people, and other less registered populations. Instead of embracing these efforts, Florida and several other states passed laws that make it difficult—and, before a court stepped in, impossible—for groups to help voters register. The result was a significant drop in registrations.
Early Voting Cuts
The push to trim early voting provides another clear example of how new voting restrictions target minorities. For more than two decades, states have been increasing early voting opportunities. In fact, most states now offer early voting, and in the last two presidential elections, a full one-third of Americans voted early. The reason for this expansion? Early voting works well—voters like it, election officials like it, and it improves the election system. It is so non-controversial that the bipartisan Presidential Commission on Election Administration recently recommended that all states adopt it to prevent long lines at the polls.
Despite this consensus, after the 2008 election, support for early voting eroded among Republican legislators in the South and Midwest. What changed? For the first time, African Americans had begun voting early at high rates. In Southern states, early voting by African Americans nearly tripled between 2004 and 2008, overtaking early voting by whites by a significant margin. In North Carolina, for example, seven in ten African Americans voted early in 2008, as compared to half of white voters. And while Republicans have traditionally been more likely to vote early, in 2008 Democratic early votes exceeded Republican ones.
Just as early voting has become successful among minorities and lower-income voters, it has become a target. Since 2011, eight states that saw recent increases in minority early voting usage have sharply cut back on early voting hours and days—Florida, Georgia, Nebraska, North Carolina, Ohio, Tennessee, West Virginia, and Wisconsin. Generally, the days and hours most likely to be slashed were those most popular with minorities and hourly workers, like Sundays and evenings. According to a 2008 Ohio study, 56 percent of weekend voters in Cuyahoga County, the state’s most populous, were black.
Some politicians have been surprisingly candid about their motives. A Georgia state senator recently caused an uproar by criticizing local election officials for placing an early voting site in a black neighborhood, calling it a “blatantly partisan move,” and vowing to work in the next legislative session to “eliminate this election law loophole” that enabled officials to facilitate minority political participation. An Ohio official, explaining his 2012 vote to limit early voting hours, said: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban [read: African American] voter-turnout machine.”
Moral Monday protesters in Raleigh, North Carolina, call for the repeal of their state's new voting restrictions.
Other Voting Restrictions
Voter ID. While voter ID laws are nothing new, before 2011 only two states required voters to show government-issued photo IDs at the polls. Since 2011, nine states passed strict new ID laws. (Those states are Alabama, Arkansas, Kansas, Mississippi, North Carolina, Tennessee, Texas, Virginia, and Wisconsin.) Some accept state-issued student IDs while others do not, and some make it easier than others to obtain the necessary IDs. Four more states have passed somewhat less restrictive ID requirements. Nationally, 11 percent of Americans do not have the current state-issued photo IDs required under the stricter laws.
Voter Registration Restrictions. Ten states passed laws making it harder for citizens to register. These include laws curbing voter registration drives (in Florida, Illinois, Texas, and Virginia); rules requiring voters to provide documentary proof of citizenship when registering (in Alabama, Kansas, Tennessee, and previously in Arizona); laws eliminating the highly popular same-day registration (in Nebraska and North Carolina); and a law making it harder for people who move to stay registered (in Wisconsin). Voter registration problems, which tend to pass under the radar, have long been the single greatest barrier to voting, causing millions of lost votes per year. Unless your state has same-day registration, if you are not registered, you cannot vote. One in four eligible Americans is not registered, and millions more have outdated registrations.
Curbs on Restoring Rights to People with Past Convictions. Florida, Iowa, and South Dakota all made it significantly harder for Americans with past criminal convictions to have their voting rights restored. In Florida and Iowa, those citizens are essentially permanently disenfranchised. Nationally, 5.85 million Americans who have done their time have lost the right to vote; 1.5 million are in Florida. Overall, 7.7 percent of African Americans have lost their right—compared to 1.8 percent of whites.
The number and complexity of new voting restrictions across the country are staggering. As Yale Law Professor Heather Gerken put it, “It’s a death-by-a-thousand-cuts strategy.”
Key States to Watch
In many of the closest races this year, new restrictions and ongoing court cases could become major factors.
North Carolina has the dubious distinction of having the nation’s harshest and most sweeping new voting law. Enacted immediately after the Supreme Court gutted the Voting Rights Act last year, the law slashes seven early voting days, imposes a strict photo ID requirement, eliminates same-day registration, stops pre-registration for 16- and 17-year-olds, prohibits the counting of provisional votes cast outside of voters’ home precincts, and more. Other than the photo ID requirement, which will be implemented in 2016, all of these changes are currently in effect.
With a tight U.S. Senate race under way, these changes could have an impact on this year’s elections, though it is difficult to predict the magnitude. In 2008, more than 700,000 North Carolinians voted during the week the state cut from early voting—including nearly a quarter of all African Americans who voted that year. Even in the 2010 midterms, more than 200,000 voters cast ballots during that week. Many voters will likely find another way to participate, but some will not. When Florida cut a week of early voting before the 2012 election, it led to congestion and long lines both before and on Election Day. More than 200,000 Floridians did not vote that year because of long lines at the polls.
The elimination of same-day registration and out-of-precinct provisional balloting can also do damage. In 2012, nearly 100,000 citizens used same-day registration in North Carolina, almost one-third of whom were African Americans. Nationally, same-day registration is generally credited with boosting turnout by as much as 5 to 7 percent. Already this year, hundreds of citizens cast ballots that went uncounted in low-turnout primary elections because of the elimination of same-day registration and out-of-precinct voting.
It is uncertain which of these restrictions will still be in place for the elections. The Department of Justice and civil rights groups have challenged the law in federal court. A district court judge declined to block the changes in advance of the election, but during argument on appeal last week, one judge asked: “How come the state of North Carolina doesn’t want people to vote?” (Regardless of the outcome, the issue will not be fully settled this year; the case is scheduled for a full trial next summer.) Voters are pushing back in the streets as well; the new law has spawned large-scale protests across the state by the “Moral Mondays” movement. That movement has also mobilized a voter registration and education campaign to counteract what the NAACP’s Reverend William Barber calls “the most regressive voter-suppression law passed by any state in this country since Jim Crow.”
Texas. In the midst of a high-profile gubernatorial race, the Lone Star State now has a voter ID law that is the harshest in the nation, and called “absurdly strict” by the New York Times. Not only does Texas unnecessarily limit the kinds of IDs it accepts for voting, it also cherry-picks—famously accepting concealed-carry permits but not state-issued student IDs. Before implementing this law, Texas was initially required under the Voting Rights Act to get federal approval to make sure that the ID law was not discriminatory. Both the Department of Justice and a federal court blocked the law ahead of the 2012 elections, finding that it discriminated against minority voters. But while the case was awaiting appeal, the Supreme Court struck down the portion of the Voting Rights Act (Section 5) that required Texas to seek pre-implementation review. Within hours of that decision, Texas moved to implement the law—despite the court’s earlier finding that it was discriminatory. The law is now being challenged under a different part of the Voting Rights Act (Section 2) and the Constitution, but has already been applied in local and primary elections this year.
If allowed to stand, Texas’s voter ID law could have a substantial impact this November. Uncontroverted expert data presented at trial showed that 1.2 million eligible Texans do not have IDs that would be accepted under the new law. Among registered voters, more than 600,000 lack acceptable ID. The effect on black and Latino voters is disproportionate; Hispanic registered voters are 3.2 times more likely than white voters to lack ID, and black registered voters are 2.3 times more likely to lack ID, according to an expert study.
A weak state program to provide free IDs is unlikely to close this gap before Election Day. As of September, Texas had issued only 279 free IDs, and had done virtually no voter education. Even if the ID itself is free, for many people the cost of obtaining the underlying documents necessary to get it is prohibitive. Lifelong voter Sammie Bates testified that it took her a while to save up the $42 needed to order her birth certificate, which she needed to get free ID: “You’re going to put the money where you feel the need is most urgent. … We couldn't eat the birth certificate, and we couldn't pay rent with the birth certificate.”
In the low-turnout November 2013 state primary, more than 250 provisional ballots were rejected because the voters failed to present qualifying ID. While most empirical studies show that requiring voter ID has a negative effect on turnout, there aren’t enough data yet to estimate with precision the impact the law will have on turnout if it remains in effect—especially since there has never been an ID requirement as strict as Texas’s. We may never find out, depending on what happens in the courts over the next few weeks. Closing arguments in the case challenging the law were made on September 22; a decision could come any day now.
The states shown in blue are facing court challenges to voter suppression measures.
Wisconsin. Unless a court steps in, a strict new voter ID law and cutbacks to early voting are slated to go into effect in Wisconsin for the first time this November. Wisconsin Governor Scott Walker played a significant role in pressing these controversial new voting measures, and they could now make a difference in his close re-election race this year.
The new voter ID law, which rivals Texas’s as one of the country’s most restrictive, was previously blocked by multiple state and federal courts, but those decisions were recently lifted, just weeks before the election. By a tie vote, the Seventh Circuit Court of Appeals refused to rehear the appeal en banc, with Judge Richard A. Posner, who famously regretted his vote to uphold Indiana’s ID law, voting to rehear. With almost no time to prepare or educate voters, and with early absentee voting already under way, this last-minute change could create serious snafus in the election. The thousands of people who have already mailed in absentee ballots have been told that they now need to send in copies of their photo IDs—assuming they have them—or their votes will not count. In addition to the confusion, the law will certainly create problems for the 300,000 eligible Wisconsin voters who do not have IDs acceptable under the new law. In Milwaukee County, the state’s largest, 7.3 percent of white voters, 13.2 percent of African Americans, and 14.9 percent of Latinos lack acceptable IDs.
Wisconsin also eliminated weekend early voting, effectively preventing “Souls to the Polls” drives in the state this year. Florida’s experience in 2012 shows that cutting Sunday voting can make a serious dent in turnout; more than 18 percent of Floridians who voted on the last Sunday of early voting in 2008—eliminated in 2012—did not vote at all in 2012, according to an analysis by Professors Paul Gronke of Reed College and Charles Stewart of the Massachusetts Institute of Technology.
Kansas and Arizona. Voting restrictions have the potential to make a difference in the close gubernatorial and Senate races in Kansas, and in close House races in Arizona this year. Both states now require documentary proof of citizenship to register to vote, a measure first authored by embattled Kansas Secretary of State Kris Kobach.
Since January 2013, tens of thousands of voter registrations have been submitted in Kansas without the required documents. Although aggressive research and outreach efforts have helped get thousands of these documents to voters, there are currently almost 20,000 Kansans who attempted to register but will not be able to vote this November. There are no new numbers available from Arizona, but when the state first implemented its requirement in 2005, more than 31,000 applications were rejected for lack of documents, and community-based voter registration plummeted by 44 percent in the state’s largest county. Only 11,000 of those applicants were later able to register to vote, and about 20 percent of the remaining 20,000 unsuccessful applicants were Latino. The laws are currently the subject of two lawsuits, only one of which is likely to be decided before the upcoming election. If voting advocates prevail in that suit, then voters who lack citizenship documentation will be able to register and vote in federal races only.
Florida has long led the country in voting restrictions. Most recently, in 2011, the state cut back on early voting, hampered voter registration drives, and rolled back voting rights for people with past convictions. While the early voting and voter registration restrictions have been mitigated by court decisions and even a 2013 partial repeal, the more than 1.3 million Floridians convicted of crimes who have completed their sentences and paid their debt to society are still essentially permanently disenfranchised because of changes Governor Rick Scott and his clemency board made to Florida’s rules in 2011. Scott’s new criminal disenfranchisement rules, which rolled back pro-voter reforms passed by former Governor Charlie Crist, have the potential to make a big difference in this year’s neck-and-neck gubernatorial race between Scott and Crist.
Ohio may not have a close statewide race this year, but its voting shenanigans are always of national concern. This year, state officials tried to cut back dramatically on early voting—stopping all weekend early voting—and to eliminate its period of same-day registration popularly known as “Golden Week.” As a federal court recently found, and an appeals court affirmed, these moves could have hurt tens of thousands of voters, and disproportionately African Americans. The courts initially blocked these changes for this election, but just one day before early voting and Golden Week were scheduled to begin, the five conservative justices of the U.S. Supreme Court reinstated them. These measures were put in place in response to the chaos and long lines at the polls in 2004; their loss could spell trouble this year. The fight in Ohio is not yet over for 2016.
Arkansas passed one of the new wave of strict voter ID laws last year. With one of the country’s hottest Senate races in the balance, the law has taken on much greater significance this year. A state court found that the law violates the state’s constitution, which has strong protections for voting rights, but it declined to block the law. The case was heard by the Arkansas Supreme Court, and a decision could come down any day now.
New voting laws aren’t the only concerns this year. Watch out for politically motivated attacks on groups that register voters, last-minute attempts to purge names off voter rolls, and voter harassment by vigilante groups—all of which have the potential to chill registration and participation. Watch also for widespread confusion and mistakes as a result of all these voting rules changes. And watch out for long lines at the polls, especially in minority communities; despite the uproar in 2012, the country still hasn’t taken key steps to prevent lines.
The role of the courts will be critical in the coming days and weeks. In five key states—Arizona, Arkansas, Kansas, North Carolina, and Texas—the voting rules are still up in the air as lawsuits challenging new laws make their way through the courts. In the lead-up to the 2012 election, 10 courts in seven states blocked, postponed, or mitigated virtually all of the harshest new voting restrictions that were slated to go into effect that year. But that was before the Supreme Court had gutted a key portion of the Voting Rights Act. The jury is still out on whether the courts will be as forceful in protecting voting rights this year. The country needs them to be—or we risk cementing a new pattern of elections marred by discriminatory partisan changes to voting rules.