Decline in Voting Rights

Few trends in American politics have been as strong over the course of my lifetime as the expansion of voting rights. The Voting Rights Act ...
by | September 10, 2008

Individualvoting Few trends in American politics have been as strong over the course of my lifetime as the expansion of voting rights. The Voting Rights Act of 1965 was obviously the landmark legislation in this area, but don't forget the rest of the string -- the 24th Amendment (1964), banning poll taxes; the 26th Amendment (1971), lowering the voting age to 18; and the 1993 "motor voter" registration law, to name just a few of the most important.

In The New York Review of Books, political scientist Andrew Hacker argues that things are starting to move in the opposite direction, citing the Supreme Court's decision to uphold the Indiana voter fraud law, the increased purging of voters from the rolls, sometimes for dubious reasons, and the lack of voting rights for ex-felons in some states.

When voter fraud laws pass, supporters typically aren't able to come up with examples that demonstrate that this is a real problem. The Wall Street Journal reported last month:

Republicans said they are particularly worried about prospects for fraud in Virginia and Pennsylvania, and are beginning to comb thousands of new registrations in those states for ineligible applicants. In some cases the huge numbers threaten to swamp their efforts -- and those of state and local governments to verify and process applications.

Election officials in Virginia and other states say there is no evidence of widespread fraud so far. Numerous studies have found fraud and other voting irregularities in past elections to be infrequent and generally not prevalent enough to influence the outcomes of most contests.

These sorts of stories lead liberals to believe the laws are an attempt at voter suppression, aimed particularly at African Americans. Hacker expresses no disagreement with this point of view.

He describes the Supreme Court's reasoning in April in the Indiana voter fraud case, noting that the justices might have been more sympathetic to the plaintiffs had they been able to demonstrate widespread difficulties in complying with the law, particularly if there were likely to be racial disparities.

During oral arguments, several justices pressed the plaintiff's lawyer for an answer. For reasons I cannot fathom, he kept using the number 43,000, for a state whose voting-age population is 4.6 million. In fact, the Federal Highway Administration, in an easily obtained report, says that 673,926 adult residents of Indiana have no license, which works out to a not trivial 14.7 percent of the state's potential electorate. Had that percentage been stressed, we can conjecture that Justices Stevens and Anthony Kennedy might have shifted their position.

Hacker then moves on to his criticism of the 2002 Help America Vote Act. He finds that the methods Ohio and Florida use to keep their rolls up to date disproportionately bump off African Americans. A review of Ohio's purges found that they were in "mostly urban and minority areas," Hacker notes. He points out that Florida's software seems to have much the same effect.

Florida also uses the help-the-voter act to check felony records, since convicted criminals there can't vote. Oddly, it only requires that 80 percent of the letters in your name match with the name of someone with such a record. So if there's a murderous John Peterson, the software disenfranchises everyone named John Peters. In view of the racial rates for incarceration, black voters are more apt to have names closely resembling those with felony histories.

Florida's system for purging the voting lists was approved by a 2-1 ruling in federal circuit court this spring, Flor-ida State Conference of the NAACP v. Browning . The dissenting judge, Rosemary Barkett, a Clinton appointee, was the only one to spell out the disparate racial impact. She noted that while black voters made up 13 percent of the scanned pool, they comprised 26 percent of those who were purged; while whites were 66 percent of the pool, they were only 17 percent of the rejected group.

Hacker goes on to outline his issues with the difficulties states present ex-felons who hope to vote, either upon release or after completing parole. He writes that there does not "seem to be much sentiment in those states for removing the bands or lowering the barriers."

Here I would point out that Tom Vilsack as governor of Iowa and Florida Gov. Charlie Crist have restored voting rights in recent years. Here's something I wrote in 2005:

Since 1997, 11 states have expanded the categories of citizens eligible to vote--in most cases, former felons. This spring, for instance, the Nebraska legislature, over a gubernatorial veto, lifted the state's lifetime ban on voting by former prisoners, replacing it with a two-year waiting period.

Just a couple of weeks ago,

Crist issued an executive order ... that requires officials to include voter registration applications when they send out rights restoration certificates to convicts who have completed their sentences.

I don't think this invalidates Hacker's basic point. Even if you don't believe ex-felons should have voting rights restored, and even if you don't buy the line that there are either racial or purely partisan motives involved in the campaign against voter fraud or in updating voter rolls, it seems clear that there are real efforts to push back against the generational expansion of the franchise.


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