Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Wednesday, November 23
"I'm Shocked, Shocked..."
Today's Atlanta Journal-Constitution has this op-ed from Rep. Cecil Staton, one of the chief supporters' of Georgia's recently enacted -- and even more recently enjoined -- photo ID law, HB 24. Rep. Staton's op-ed attempts to justify the law on the ground that it was needed to prevent fraud. He claims to be "deeply offended" by the suggestion that he or any other members of Georgia's legislature were motivated by racism. Rep. Staton's remark has the ring of Captain Renault's famously disingenous profession of shock in Casablanca, upon "learning" that gambling was taking place at Rick's Cafe. (The next line from the movie, incidentally, is "Here are your winnings, sir.")
In an effort to help Rep. Staton understand why anyone would make such a claim, let's take a look at what happened in Georgia:
- The state legislature passed a bill requiring government-issued photo ID in order to cast votes at the polling place, a requirement that's more stringent than any other state with the exception of Indiana.
- The legislature enacted this requirement over the objection of black legislators and the civil rights community, who warned that black voters -- not to mention elderly, disabled, and poor voters -- are less likely to have the requisite identification, since they're more likely not to drive.
- The state charges $20 for the requisite government-issued photo ID ... and this is putting aside the "tax" on voters' time in obtaining it.
- Georgia's legislature had no evidence of people going to the polling place pretending to be someone they're not, as the state's chief election official confirmed in sworn testimony, thus demonstrating the lack of any factual predicate to justify making all voters show ID at the polls.
- The state also failed to show while existing measures employed by other states, such as allowing voters without ID to sign an affidavit verifying they are who they say they are, are insufficient to prevent the impersonation of voters at the polling place (even if this were shown to be a problem, which it hasn't been).
- To the extent that their is any evidence of voting fraud, it's almost entirely with mail-in absentee ballots. Yet the state imposes no ID requirement for those who vote absentee, a group that generally tends to include a higher proportion of absentee and Republican-leaning voters.
In light of these developments, it ought not be surprising to anyone that many people perceive racism to be underlying the Georgia legislature's actions. Now, I'm not claiming that all the Georgia legislators who voted for the ID bill were motivated by racial prejudice, although the remarks by one of Rep. Staton's colleagues suggest that this is a possibility. In the end, whether this law was motivated by racial animus is less important than the effect it will have.
My friend Roy Saltman gets it exactly right in his letter to the editor of the Washington Post, comparing Georgia's law to a poll tax. As was the case with the poll tax, up until it was finally held unconstitutional in the 1960's, white legislators deny that the ID requirement has a discriminatory motivation -- and it's awfully hard to prove or disprove such motivation in court. In fact, the Supreme Court's decision striking the poll tax didn't rest it's holding on the state legislators' intent to hurt black voters, but instead on the effect that it would have on poor voters. Under both the Voting Rights Act and the Constitution, the impact on voters is what's critical.
In the course of his remarkable op-ed, Rep. Staton also takes some potshots at the Voting Rights Act, suggesting that it's unfair to make Georgia "endure" Justice Department scrutiny whenever it changes a voting practice. But as Tom Teepen explains in this op-ed, the Georgia ID law is a case in point for why the Voting Rights Act is still needed. If anything, this case supports the idea that the Act needs to be strengthened, to prevent partisan considerations from distorting the preclearance process, as appears to have occurred when the Justice Department allowed Georgia's ID law to go into effect.