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Professor Dan Tokaji
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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Equal Vote
Wednesday, August 3
Vote Suppression, Fraud, and Photo ID
Since the 2004 election, there's been considerable attention devoted to election practices that served as obstacles to voting. That attention has focused on such problems as unreliable voting equipment, restrictive rules for counting provisional ballots, photo ID laws, and barriers to registration like Secretary of State Ken Blackwell's now-infamous directive requiring that registration forms be on heavy-stock "80 pound" paper weight. The DNC has issued a lengthy report documenting the problems encountered by voters in Ohio, which found that minorities and other Democratic-leaning groups were especially hard hit.

It was inevitable, then, that right-leaning advocacy groups would strike back with their own take on Election 2004. And so they have with this report entitled "Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election." The report has been put out by a group calling itself the "American Center for Voting Rights Legislative Fund," a group led by Mark P. "Thor" Hearne who was National Election Counsel to Bush-Cheney 2004.

This a group that clearly has an agenda, the centerpiece of which is the imposition of a government-issued photo ID requirements that would impose disproportionate barriers to elderly, disabled, minority, and poor voters. Accordingly, the report it has issued -- drawn mainly from media reports from the 2004 election -- attempts to create the impression that fraud is rampant.

The report places particular emphasis on allegations of wrongdoing in black communities such as those in East St. Louis, Detroit, Milwaukee, Philadelphia, Cleveland, and Alabama's Black Belt. The report also highlights allegations against those with African-American sounding names like "Sowande Ajumoke Omudunde," focuses on "fraudulent and suspicious" registrations supposedly submitted by the NAACP, and retells the oft-repeated a story of a registration with the name "Jive F. Turkey, Sr." being submitted in Ohio -- though there's little or no evidence that he or any of the other "fictional" voters like Dick Tracy actually attempted to vote in the state.

When one looks carefully at the collected stories that form the bulk of ACVR's report, it quickly becomes apparent that there's much less there than meets the eye. Take the State of Wisconsin, for example, which has been the site of one of the most heated battles over whether to require photo ID for voting. The report alleges 200 cases of felons improperly voting in Milwaukee, something that a photo ID law wouldn't do anything about -- there's no prohibition. after all, on ex-felons having a driver's license. The report further alleges that there were 100 instances of double-voting, which includes people voting twice, voting under fictitious names, and voting in the name of dead people. What's remarkable is that in a city with a voting-age population of over 425,000 people, the documented instances of fraud are so small, even according to those intent on portraying fraud as a huge problem.

What's especially noxious about the proposal to require photo ID is that it wouldn't affect all citizens equally. A recent study by John Pawasarat of the University of Wisconsin-Milwaukee finds certain groups -- including the elderly, the poor, Latinos, and African Americans -- are much less likely to have photo ID. While over 80% of Wisconsin adults have a valid drivers' license, only 45% of African American men and 51% of African American women do. The disparity is even more striking for black males 18-24, only 22% of whom have a photo ID.

Even if we put this racial disparity aside, the statistics from Wisconsin show that approximately 800,000 voting age adults don't have a driver's license. How many of those non-drivers are likely to wait in one line at their local DMV, only so they can go wait in another line to vote, even if it's provided free of charge? Let's assume, quite optimistically, that half will do so and do a simple cost-benefit analysis. There are 87,300 adults in Milwaukee without a vehicle in their household. That means that in hopes of preventing those 100 "documented" instances of double-voting in Milwaukee, we're going to pass a law that serves as a barrier to the around 43,650 people. Impeding access to 436 people for every alleged fraudulent vote you prevent isn't a particularly favorable result, if you ask me -- especially when you take into account the disparate impact of such a requirement when it comes to race, age, income.

The authors of the ACVR report would surely deny allegations of intentional racism ("what, us, racist?"), and it's not my purpose to label any particular individual or organization racist. But the clear impression that ACVR is seeking to create with its report is that voter fraud has run amok in black communities, and that photo ID laws are the way to fix the problem. It's a sadly ironic way to celebrate the 40th Anniversary of the Voting Rights Act, which is coming up this week.

We should remember that, at the turn of the 20th Century, allegations of "good government" were used by white Democrats in a remarkably successful strategy to suppress the black vote. The result of those very successful efforts was to impose barriers like the literacy test, which excluded African Americans from voting throughout the South for the better part of the century, until after the Voting Rights Act of 1965. If you go back and read some of the documents from the late 1800's and early 1900's, as I've recently been doing, the similarity to the sort of arguments being advanced now in support of photo ID laws is frightening. It is beyond unfortunate to see the same sort of tactics, albeit dressed up in more respectable garb, being employed at the start of the 21st Century.

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Moritz College of Law The Ohio State University