Monthly Archives: November 2013

The Supreme Court Deals a Blow to Criminal Defendants and Strengthens Judicial Politics by Refusing to Hear Woodward v. Alabama

The Supreme Court Deals a Blow to Criminal Defendants and Strengthens Judicial Politics by Refusing to Hear Woodward v. Alabama

Brian Padgett

On November 18, 2013, the Supreme Court declined to hear the case of Woodward v. Alabama. Such a refusal is not unprecedented – the Supreme Court receives applications to hear thousands of cases per year, and generally only approves about two hundred of them.[1] What was unusual is that two justices, Justice Sonia Sotomayor and Justice Stephen Breyer published a dissenting opinion for the denial of review.

Woodward’s appeal had to do with the use of judicial overrides in death penalty cases.[2] In death penalty cases, the guilt phase is separated from the penalty phase. In the penalty phase of the trial, the government presents arguments before a jury as to why the defendant should receive the death penalty. In legal language, the government presents aggravating circumstances to the jury. In response, the defense generally presents mitigating circumstances to the jury. The role of the jury is to weigh the mitigating and aggravating circumstances, and to make a recommendation to the judge as to whether the defendant should be placed on death row. The Alabama statute at issue, 13A-5-47(e), allows the judge to override the jury’s recommendation. In other words, the jury’s conclusion as to whether the death penalty is appropriate is not binding, and the judge can impose capital punishment if the judge finds the aggravating circumstances outweigh the mitigating circumstances. If the judge chooses to do so, they must file an “Override Report.” However, this Report does not have to include the specific reasons as to why the judge overrode the jury’s recommendation.[3]

The dissent by Justices Sotomayor and Breyer focus on whether this practice is appropriate in light of recent Supreme Court precedent. In Alleyne v. United States, the Supreme Court found that any fact that could increase the jail time of a defendant under the federal Sentencing Guidelines must be found by a jury, not a judge. If a judge alone finds such a fact, the defendant’s Eighth Amendment[4] rights have been violated. As a result, although the Supreme Court explicitly approved Alabama’s use of judicial overrides almost twenty years earlier[5], the time was right for the Supreme Court to reconsider the issue.

One reason that reviewing Alabama’s statute is important, the justices argued, is that even though other states allow for judicial overrides, Alabama judges are virtually alone in actually doing so. Since the year 2000, there have been twenty-seven judicial overrides imposing capital punishment over a jury’s recommendation.[6] Twenty-six of these overrides were in Alabama.[7]

The Justices went on to examine why Alabama was such an “outlier,” and came to the conclusion that judicial overrides were driven by local politics. In Alabama, unlike the other two states that allow for judicial overrides, criminal judges are selected by local election. The Justices cited statistical analyses that proved with some precision that the only statistically significant difference between Alabama judges, Delaware judges, and Florida judges is that Alabama judges are elected. To support their argument that judges may feel compelled to appear “tough on crime,” the Justices quoted local news stories stating that voter reaction to sentencing opinions “has some impact.”[8]

Whether one agrees with the Justices’ view that local politics have to do with the likelihood of whether an Alabama judge will override a jury’s sentencing recommendation, one thing is clear. The Supreme Court’s refusal to review Alabama’s judicial override statute means it will remain in effect, for at least several years. It is thus likely that dozens of criminal defendants, who otherwise would have received life without the possibility of parole will be sentenced to death. Not by a jury of their peers, in accordance with the Sixth and Eighth Amendments, but by a judge, who may be more concerned with scoring re-election points than examining whether a particular defendant truly deserves to be sentenced to death.


[1]

[2]According to Justice Sotomayor, three states allow such a practice: Alabama, Delaware, and Florida. Woodward v. Alabama, No. 13-5380, 2013 WL 6050109 (Nov. 18, 2013), at *1.

[3]Id. at *3.

[4]Among other things, the Eighth Amendment protects criminal defendants against cruel and unusual punishment. Alleyne found that a judge – instead of a jury – finding a fact that increased a defendant’s jail time constituted cruel and unusual punishment.

[5]Harris v. Alabama, 513 U.S. 504 (1995).

[6]Woodward, supra note 1, at *3.

[7]Id.

[8]Id. The Justices also cited former Justice Stevens’ dissent in Harris that Alabama judges “ben[d] to political pressure when pronouncing sentence in highly publicized capital cases.” (emphasis added).

The Irony and Efficacy of University Speech Codes

The Irony and Efficacy of University Speech Codes

William Derek Green

 

            College administrators are often considered to be the foremost advocates of “open dialogue,” “diversity of thought,” and of course, “freedom of speech.”  However, in a disturbing trend that has developed over the last 30 years at universities across the United States, these laudable principles have increasingly existed side by side with speech codes whose paradoxical effect is to repress open dialogue, inhibit diversity of thought, and interfere with freedom of speech.  Between 1990 and 1991, for example, the number of hate-speech codes at American universities ballooned from approximately 75 to over 300.[1]  Currently, over 95% of universities enforce restrictions on speech.[2]  Supporters of such restrictions have asserted that “[t]he verbal attack is a symptom of an oppressive history of discrimination and subjugation that plagues the harmed student,” and that “[t]he resulting harm is clearly significant and, therefore, justifies limiting speech rights.”[3]  But while eliminating the legacies of societal discrimination is a commendable goal, one that every citizen should strive to make reality, institutionalized restrictions on personal expression are incompatible with the Constitution’s guarantee of free speech.  Furthermore, such restrictions are almost certainly antithetical, or at the very least, unnecessary, to achieving a tolerant society.

            University speech codes have frequently been found unconstitutional.  In the 1980’s the University of Michigan issued a policy prohibiting “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.”[4]  In order to constitute a violation of university policy, such behavior need not be directed towards any particular student; it need only be deemed, in the discretion of school officials, to constitute prohibited behavior.[5]  The court of the Eastern District of Michigan held that the restrictions were overbroad prohibitions on the First Amendment’s guarantee of free speech and so vague as to prevent students from fully exercising their rights under the Due Process clause.[6]  Plainly disturbed by the idea that such policies would “put…universities into the business of censorship,” the District Judge discussed the importance of free speech and the hypocrisy of university administrators at length in the opinion’s conclusion.[7]  The Judge found it particularly ironic that the university had issued a statement prior to the adoption of its speech codes stating that “[t]he belief that some opinion is pernicious, false, or in any other way detestable cannot be grounds for its suppression.”[8]  Such inconsistency was apparently lost, perhaps willfully, on the administrators.  In the twenty-four years since the University of Michigan opinion was issued, the weight of authority has been against campus speech codes[9], yet they persist at the majority of American universities, even those located in jurisdictions that have found speech codes unconstitutional.[10]

            In the essay Kindly Inquisitors, Revisited, Jonathan Rauch bemoans the proliferation over the last twenty years of what he calls “the new attacks on free thought.”[11]  Observing that attacks on free speech in the guise of anti hate-speech laws are routinely considered unconstitutional in the United States, Rauch notes that such speech restrictions have nevertheless become commonplace by sneaking in through the back door of bureaucratic prohibition:  overbroad “hostile environment” laws have prevented atheist-unfriendly Bible verses from being printed on receipts,[12] and University of Pennsylvania speech codes once led to the prosecution of a Jewish student for calling a group of African-American sorority sisters “water buffalo,” a decidedly race-neutral term drawn from Hebrew slang for “rowdy person.”[13]  Rauch believes that those who would legally restrict hurtful or discriminatory speech “mistake the cart for the horse,” because hate-speech laws are, invariably, not the cause of increased societal tolerance for the protected group, but rather the effect.[14]

            Homosexuals in the 1960’s, Rauch writes, were subject to ubiquitous hatred from every corner of American society.[15]  But just fifty years later, despite the absence of any sort of hate-speech law designed to protect them, American homosexual rights enjoy firm majoritarian support.[16]  So what changed?  Quite simply, homosexuals began to talk, out loud, in the media, and to anyone who would listen; often to those who wouldn’t.[17]  Rauch points to Frank Kameny, a World War II veteran who, in 1957, was fired from the U.S. Army Map Service for being gay.[18]  Unlike most, who would merely stand down and suffer, Kameny fought back.[19]  He vigorously demanded that the U.S. Civil Service Commission reinstate him, filed a Supreme Court brief, and led the first gay rights demonstrations, in front of the White House, no less.[20]  Momentum built, more and more homosexuals refused to be marginalized, and eventually American society changed. “If the pervasiveness of bigotry was supposed to silence them, as hate-speech allegedly does, Frank Kameny” and all those who followed his example “missed the memo.”[21] 

            In the unthinkable event that hate-speech laws had been passed in the gay-unfriendly America of the 1960’s, they would only have hampered the efforts of people like Frank Kameny.[22]  “It would have given the illusion that the job was finished when, in fact, the job was only beginning.  It would have condescended to a people fighting for respect.”[23]  The route through which those like Frank Kameny destroyed prejudice and reconfigured American society for the better was not legislative fiat, but rational discourse in civil society.  The suggestion that homosexuals are not evil, immoral, or sick may have fallen on largely deaf ears in the 1950’s and 1960’s, but once it was heard enough, people began to test that statement for its truth.  And they realized that Frank Kameny was correct:  homosexuals are people, just like everyone else, deserving of the same rights, the same reprimands, and the same rewards.  Kauch calls this process “liberal science,” the testing of ideas for their veracity, and the weeding out of those ideas that do not pass muster.[24]  Such a process depends on the expression of those ideas which may be considered toxic, or are even plainly wrong; without a proposition to rebut, it becomes difficult to convince people of the truth. 

            It is sadly ironic that American universities, supposed bastions of intellectual freedom and the search for truth, would put such a stranglehold on what they claim to hold most dear.  But there is some cause for hope among defenders of civil liberties.  2013 marks the fifth year in a row that university speech codes have declined in number.[25]  Furthermore, universities are increasingly eliminating all of their speech codes.[26]  There has also been a groundswell of support for the repeal of campus speech codes, as shown by the creation of the Foundation for Individual Rights in Education,[27] a group devoted to ending university speech codes, and the American Civil Liberties Union’s staunch opposition to such policies.[28]  Furthermore, Jonathan Rauch believes that arguments against hate-speech have grown more modest, eschewing prohibitions on discriminatory speech, and focusing instead on much narrower restrictions on “hostile environments.”[29]  Whatever the present state of free speech may be, we would be wise to heed the words of Michigan Supreme Court Justice Thomas Cooley, who wrote in 1868 that when speech “exceed[s] all the proper bounds of moderation, the consolation must be that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.”[30]  As the Court for the Eastern District of Michigan observed in Doe v. Michigan, Cooley’s words are no less relevant today than they were over one hundred and forty years ago.[31]

 

 

 

 


[1] Gerald Uelmen, The Price of Free Speech: Campus Hate Speech Codes, Markula Center for Applied Ethics (Nov. 19, 2013, 5:14 PM), http://www.scu.edu/ethics/publications/iie/v5n2/codes.html.

[2] See, Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, The Foundation for Individual Rights in Education (2013), http://thefire.org/public/pdfs/Spotlight_on_Speech_Codes_2013.pdf.

[3] Uelmen, supra, note 1.

[4] Doe v. Univ. of Michigan, 721 F. Supp. 852, 856 (E.D. Mich. 1989).

[5] Id. at 857, 858.

[6] Id. at 864-869.

[7] Id. at 868 (citations omitted).

[8] Id.

[9] Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2, at 7.  For a list of cases holding campus speech codes unconstitutional, see note 10 at page seven of Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2.

[10] Id. at 2.

[11] Jonathan Rauch, Kindly Inquisitors, Revisited, Reason, Dec. 2013, available at http://reason.com/archives/2013/11/15/kindly-inquisitors-revisited.

[12] Id.

[13] Sandy Hingston, A History of Political Correctness: 20 Years After Penn’s “Water Buffalo” Incident, Philadelphia, Apr. 28, 2013, available at http://www.phillymag.com/articles/penns-water-buffalo-incident-20-years/.

[14] Rauch, supra, note 11.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] See, Spotlight on Speech Codes 2013:  The State of Free Speech on Our Nation’s Campuses, supra, note 2.

[26] Id.  As a matter of pride, the author would like to point out that his undergraduate alma matter, the University of Tennessee, is one of only fifteen universities that, according to the Foundation for Individual Rights in Education, imposes no serious restrictions on freedom of speech.  Id. at A-6.

[27] See generally, Foundation for Individual Rights in Education, http://thefire.org.

[28] See, Hate Speech on Campus, The American Civil Liberties Union, Dec. 31, 1994, https://www.aclu.org/free-speech/hate-speech-campus.

[29] Rauch, supra, note 11.

[30] Doe v. Univ. of Michigan, 721 F. Supp. 852, 869 (E.D. Mich. 1989) (citing T. Cooley, A Treatise on the Constitutional Limitations 429 (Da Capo ed. 1972) (1st ed. 1868)).

[31] Id.

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

By Erika Rucker

Introduction

Under the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed effective assistance of legal counsel.[1] When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt.[2]

Discussion

In Burt v. Tidlow, the respondent, along with his aunt, allegedly murdered a man by pouring vodka down the victim’s throat and smothering the victim with a pillow.[3] Prior to trial, the respondent reached an agreement with the prosecutor and agreed to testify against his aunt in exchange for a guilty plea of manslaughter and a minimum sentence of 7-15 years.[4]

Prior to the respondent’s aunt’s trial was to commence, the respondent obtained alternate legal counsel. At the request of the respondent’s new attorney, the respondent demanded a lower minimum sentence in exchange for his testimony. The prosecutor refused to accept the respondent’s new plea agreement and the respondent withdrew his  initial plea. By withdrawing his original guilty plea, the respondent’s first degree murder charge was reinstated.[5]

At trial, respondent was convicted of second-degree murder and was sentenced to a twenty to forty year term prison sentence.[6] On direct appeal, respondent argued that his subsequent legal counsel, who advised him to withdraw his original plea agreement, was ineffective.[7] The respondent argued that his attorney did not take the time to learn more about the case which would reveal the strength of the state’s case against his client.[8]

The Court of Appeals rejected the respondent’s claim that his counsel was ineffective. The Court of Appeals held that the respondent’s counsel acted reasonably in light of the fact that the respondent proclaimed innocence. The Court utilized an objective standard of reasonableness and concluded that “[w]hen a defendant proclaims . . . innocence . . ., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” [9]

Upon review by the Sixth Circuit, the judgment was reversed. The Sixth Circuit stated “[t]he record in this case contains no evidence” that [the attorney] fully informed respondent of the possible consequences of withdrawing the guilty plea, the Sixth Circuit held that the attorney rendered ineffective assistance of counsel that resulted in respondent’s loss of the benefit of the plea bargain.[10] The Sixth Circuit remanded the case with instructions that the prosecution must reoffer the respondent the original plea agreement.[11]

Ultimately, the Supreme Court found that the legal counsel given to the respondent was effective. The Supreme Court held that respondent was reasonably advised by his attorney prior to withdrawing his initial plea agreement.[12]

The Supreme Court has stated that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,”[13] and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant.[14]

Conclusion

Although legal counsel may not be perfect, the client is not entitled to have perfect counsel. Instead, a client is entitled to effective legal counsel. Additionally, an attorney’s violation of ethical norms does not render the attorney’s counsel ineffective per se.[15] While a client may not agree with their attorney’s legal strategy during the course of representation, this does not deem the attorney to be ineffective assistance of counsel.

While the decision reached in Burt  v. Tidlow does not stray from the legal norms which are squarely in place, the decision does reiterate the high threshold that a criminal client claiming ineffective assistance of counsel must overcome. Furthermore, the decision focuses narrowly on the legal assistance given during the plea bargaining stage. It is at this stage of litigation that effective legal counsel can be the most crucial because the majority of cases are not fully litigated to trial.

Burt v. Titlow clarifies that the presumption that counsel will presumed to be adequate and the  burden to rebut this presumption rests with the defendant stands firmly, especially in the plea bargaining stage of criminal trials


[1] U.S. Const., amend. XI.

[2] Cullen v. Pinholster, 563 U. S. ___, ___, 131 S. Ct. 1388 (2011) (slip op., at 17).

[3] Burt v. Titlow, 2013 U.S. LEXIS 8039, 6 (U.S. Nov. 5, 2013)

[4] Id.

[5] Id.

[6] Id. at 7.

[7] Id. at 8.

[8] Id.

[9] App. to Pet. for Cert. 102a.

[10] Id., at 589-592.

[11] Burt, supra note 2, 10.

[12] Id.

[13] Strickland v. Washington, 466 U. S., at 690 (1984).

[14] Id., at 687.

[15] Mickens v. Taylor, 535 U. S. 162, 171 (2002).

Voter I.D. Laws: Inherently Racist, Misunderstood or Mischaracterized?

Voter I.D. Laws: Inherently Racist, Misunderstood or Mischaracterized?

By Logan Manthey

One night, while working in the ACRCL room, I debated with a few peers the merits of having mandatory voter identification cards. Both disagreed with me. Some of the arguments they used were the ones that are usually used, like that these laws are racist and are a means by Republicans to relegate blacks to a lower class of citizens harkening back to the days of Jim Crow or affect blacks at a higher rate than whites because blacks are typically poorer. Because they are typically poorer, they will not be able to obtain these identification cards as required by law. However, I posited that these laws are not inherently racist, nor do they affect blacks at a higher rate. I believe that the principle of federalism that this country was founded on allows states to pass these laws in order to police their elections, and as long as these laws do not unduly burden the process of getting the I.D.s burdensome, these laws are constitutional. The challenges against these laws have been turned away be the courts of the states that have passed these laws and even the Supreme Court in states where they have been challenged like Georgia and Indiana. These laws do work, and they do not depress the number of people turning out to vote because most people in the U.S. already have some form of photo I.D. or they are easily obtained.

There is a lot of perceived confusion about what these laws require of people in order to vote, and if the potential voters do not meet the requirements, what is allowed to be done to become eligible. As of 2012, a total of thirty-three states have passed these voter ID laws, and seventeen of those require that a proper form of ID be presented at the polls.[1] There are two levels of states that have enacted voter ID laws: “strict” states and “non-strict” states.[2] “Strict” states allow those who are unable to present a valid Id to cast a provisional ballot which will not be counted until the voter returns to the polling place and provides a valid ID.[3] “Non-strict” states provide voters with other means of casting a ballot without a valid ID.[4] For example, the potential voter may sign an “affidavit of identity.”[5] Thus, even the most strict of states, one may cast a ballot, and so long as a proper ID can be obtained and taken back to the poll within a certain amount of time, the vote will be confirmed.

There are plenty of reasons to pass these laws. For instance, if more states pass these laws, there may possibly be an insurgence of confidence in the voting system as more people will believe that their vote counts and is not diluted by those cheating the system. The Commission on Federal Election Reform said, “The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo IDs currently are needed to board a plan, enter federal buildings, and cash a check. Voting is equally important.”[6] Voter ID laws will help to prevent and deter impersonation fraud at the polls, voting under fictitious voter registrations, double voting by individuals registered in more than one state or locality, and voting by legal/illegal aliens. [7] Every illegal vote dilutes the votes of legitimate voters.[8] However, detractors claim that fraud is not as prevalent as proponents of these laws make it out to be.

Voter fraud is a very real threat. There is a recent example of voter fraud right here in Tuscaloosa in a recent Board of Education election. That election was an extremely close one decided by the narrowest of margins in which the fraud could have made a difference in the outcome. In a recent Supreme Court case on this very issue in which it was decided the voter I.D.s were constitutional, Justice Stevens wrote in the majority opinion, “It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years…that…demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.”[9] There is a real potential risk that voter fraud may steal a close election. There are enough incidents that occur each year that there should be steps taken to deter these bad actors. Thus, voter ID laws cut down on these risks.

Although there is a real need for these laws, the detractors claim that these laws are thinly veiled attempts of preventing Democrats from voting or that these laws are aimed at preventing blacks and poor people from voting who tend to vote more liberally than other demographic groups. Some even say that these laws are the equivalent of poll taxes and would be an “imposition of ‘Jim Crow.’”[10] However, according to studies, none of these assertions hold any water. These laws have come with dire warnings and claims from their detractors that thousands will be disenfranchised.[11] Even with all of the lawsuits, no one has produced “not a single piece of evidence of any identifiable registered voter who would be prevented from voting pursuant to the photo ID law because of his or her inability to obtain the necessary photo identification.”[12]

According to a study conducted by Jeffrey Milyo on the Indiana ID law, between the elections of 2002, the last election before the ID law was enacted, and 2006, the election after the ID law was enacted, Indiana experienced an increase in voter turnout by about 2%.[13] Milyo goes further. In counties with larger percentages of minority or poor voters, an insignificant increase took place.[14] The less educated and elderly also appear to have not been negatively affected by these laws as there was not “consistent or significant impact on relative turnout in counties with a greater percentage of less educated or elderly voters.”[15] It appears that this law also increases the turnout of Democrats, the party that so opposes these reforms.[16] The turnouts in Democrat-leaning counties were statistically significant in all but one case. [17] Citing other studies done, Milyo reports that “voter ID laws are not significantly related to turnout in either the aggregate state data or individual level data.”[18] Citing the same report, Milyo states that idiosyncratic factors, such as individual interest in politics, are far more important in determining voter turnout than voter ID laws.[19] Therefore, according to this study, these laws do not deter minorities, elderly, poor, or poorly educated from voting.

These laws do not deter large groups of people from voting as their detractors claim, nor do they operate as a poll tax. A person in the present day cannot operate without a valid form of government ID. One needs an ID to get on a plane, or cash a check.[20] In fact, there are 19 million more valid driver’s licenses than there are registered voters in the US.[21] This statistic does not include the passports, government employee IDs, and military IDs, all of which are valid forms of photo IDs, that one can use to vote if need be. So to compare voter ID laws to a poll tax is a fallacy as so many people have valid Ids. Even if one does need to obtain a valid ID, it would be a one-time burden, unlike the cost of time and transportation required for in-person voting each time one votes which is not equated to a poll tax.[22]

Voter ID laws are widely misconstrued and mischaracterized as racist, taxing, and unfair. However, when one looks at the numbers, it seems that the negative effects that these laws are supposedly intended to create do not exist. States have valid interests in deterring voter fraud, and by doing so, states may build confidence in the security of elections.[23] So long as these laws do not put on undue burden on the right to vote, states have every right to pass these laws and police their elections.


[1] John Tamasitis, “Things have changed in the south”: How Preclearance of South Carolina’s Voter Photo ID Law Demonstrates that Section 5 of the Voting Rights Act Is No Longer a Constitutional Remedy, 64 S. C. L. REV. 959, 963 (2013).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Hans A. von Spakovsky, Protecting the Integrity of the Election Process, 11 ELECTION L. J. 90, 91 (2012).

[7] Id .

[8] Id.

[9] Crawford v. Marion County Election Board, 553 U.S. 181, 195 (2008).

[10] Spakavosky, supra note 6, at 96.

[11] Id. at 93

[12] Id. at 94.

[13] Jeffrey Milyo, The Effects of Photographic Identification on Voter Turnout in Indiana: A County-Level Analysis, MOSPACE REPOSITORY, 1, (Revised Dec. 2007), https://mospace.umsystem.edu/xmlui/bitstream/handle/10355/2549/ Effects PhotographicIdentificationVoter.pdf?sequence=1.

[14] Id. at 7.

[15] Id.

[16] Id.

[17] Id.

[18] Id at 3.

[19] Id.

[20] Spakovsky, supra note 6, at 91.

[21] Id. at 94.

[22] Id.

[23] Id. at 96.

Papers Please, An Analysis of Both Sides of the Voter ID Debate

“Papers Please”, An Analysis of Both Sides of the Voter ID Debate

Nathan Gilbert

  1. Introduction

In 2011, the legislature of the state of Alabama passed a controversial new law requiring prospective voters to present a government issued form of photo identification before voting.[1]  Alabama was not the first state to pass such a law; in fact, at least 20 states have passed similar legislation requiring a photo ID to vote.[2]  These statutes, many of which were passed in the states that make up the former Confederacy[3], have been extremely contentious and have elicited passionate arguments on both sides.[4] 

Proponents of these voter ID laws argue that their purpose is to protect the integrity of the ballot from would-be voter fraud.[5]  They assert that voter fraud is rampant and widespread, especially in certain areas, and that requiring voters to present photo identification will merely serve to safeguard the process from illegal and fraudulent voting.[6]  Supporters often say that these laws have no partisan basis and are merely a way to ensure the reliability of the democratic system.[7] 

Opponents of these laws, however, paint a much different picture. They claim that voter ID laws are a solution in search of a problem and that the burden of voter ID laws is unfairly borne by historically underrepresented groups such as minorities, women, and the poor.[8]  Additionally, some opponents of voter ID laws claim that these laws were passed with a distinctly partisan agenda in mind and that they serve to intentionally disenfranchise traditionally Democratic voters.[9]

  1. Arguments In Support of Voter ID

Supporters of voter ID laws claim that these laws are necessary to prevent what they perceive to be widespread voter fraud.[10]  They point to various instances where they claim elections were tampered with by fraudulent voting[11]. To supporters, opponents’ arguments that the requirements of obtaining photo identification to vote are too onerous and have the potential to disenfranchise voters are “fundamentally dishonest” and even “intensely racist”.[12] They argue that a photo ID is required for most everything in American society today such as driving, cashing a check, buying alcohol, obtaining a job, or checking into a hotel.[13]  If requiring photo ID for these things is so simple that it seems common place, then why should a process as sacred to our republic be any different?  Supporters of these laws, and the states that have passed them, claim that there is no racial, class, or partisan basis for them.[14]  However, even some supporters do claim, with little to no factual basis that almost all voter fraud in this country is perpetrated by supporters of the Democratic Party.[15] Conservative commentator Martin Wright explains, “Voter fraud is usually an organized activity, not some spur-of-the-moment decision by its perpetrators, the overwhelming majority of whom are Democrats – as we have seen with the IRS and FEC, the spirit of Tammany Hall is still very much alive and well in the Democrat(sic) Party.”[16] To supporters, the requirement to obtain a government issued photo ID is merely a “simple process” that does not present a large burden on anyone with a desire to participate in the electoral process.[17]

  1. Argument Opposing Voter ID

Probably the chief argument in opposition to the photo ID requirements for voters is that the problem of in-person voter fraud does not truly exist, or does not exist in a great enough quantity so as to warrant voter ID requirements that could, and they argue, will, potentially disenfranchise voters.[18]  Opponents of voter ID do not argue that states do not have an interest in ensuring that the person presenting themselves to vote is in reality who they say they are.  However, they do argue that the current laws that do not require a photo ID are sufficient.[19] 

New York University School of Law’s Brennan Center for Justice has conducted substantial research in this field and has concluded that in person voter fraud, the type that could potentially be stopped by requiring photo ID, is so rare that it could be insignificant when considering the huge number of votes cast in American elections.[20]  In fact, statistically speaking, “It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”[21] Taking into account the extreme rarity of in person voter fraud, the price of disenfranchising legitimate voters who lack the required necessary ID is simply unconscionable.  Opponents of these laws rely on facts such as the following to illustrate their point:

  • “11 percent of eligible voters… lack the required photo ID” necessary to vote under these laws.[22]
  •  “Nearly 500,000 eligible voters do not have            access to a vehicle and live more than 10 miles from the nearest state ID-issuing office.”[23]
  • “People of color are more likely to be disenfranchised by these laws since they are less likely to have photo ID than the general population.”[24]
  • Only 48% of American voting-age women have access to a birth certificate (often a requirement to obtain most government issued photo identification) bearing their current legal name, as opposed to their maiden name.[25]

In addition, some opponents of these laws argue that the true motive of the laws’ supporters is not an altruistic desire for fair and honest elections, but rather to systematically disenfranchise traditionally left-leaning constituencies (the poor, people of color, and students) for their own political gain.[26]  It is no secret that President Barack Obama and the Democratic Party benefitted heavily from record turnout from these groups in the historic 2008 elections.[27]  Some even see these laws restricting voting rights as a stealth continuation of the Jim Crow laws that kept poor and minority voters disenfranchised in the American South for generations.[28] Congressman John Lewis opined that today’s restrictions on voting rights are akin to Jim Crow laws and are simply “the same face with a different mask.”[29] Republican politicians have consistently used ‘dog whistle’ issues, such as bussing and states’ rights, to signal their race-baiting intentions to their white constituents.[30]  It can be argued that these new voter ID statutes are just a continuation of the dark legacy of voter suppression by the dominant racial and social class.

  1. Conclusion

The right to vote select one’s leaders is one of the “fundamental rights” that Americans enjoy.[31] Regardless of one’s political affiliation, all Americans can likely agree that it is important that we safeguard the voting rights of our citizens from threats in any form they may come.  But the question of whether state laws requiring voters to present a photo ID are a necessary step to safeguard the system or a discriminatory tool used to disenfranchise poor and minority voters is one that sharply divides Americans and that division does not seem to be abating in the foreseeable future.

 


[1] Ala. Code § 17-9-30 (2011).

[2] See, Voter Identification Requirements, National Conference of State Legislatures (2013),

[3] See id. Of the 20 states that have passed photo voter ID laws, all of those that made up the former Confederate States of America are included: Georgia, Tennessee, Arkansas, Mississippi, North Carolina, Texas, Virginia, Florida, Louisiana, South Carolina, and Alabama. Id.

[4] William Browning, ‘Jim Crow is Alive,’ Says Missouri Democrat During Contentious Voter ID Debate, Yahoo!- News (Feb. 14, 2013), http://www.news.yahoo.com/jim-crow-alive-says-missouri-democrat-during-contentious-175500855.html.

[5] See Hans A. von Spakovsky, Democracy in Danger: Case Studies of Election Fraud, Heritage Foundation (Oct. 27, 2008) at 3, available at s3.amazonaws.com/thf_media/2008/pdf/sr24.pdf.

[6] Id. at 1.

[7] Jonathan S. Toobin, Voter ID Laws Are Inherently Reasonable, Not Racist or Republican, Christian Science Monitor (July 23, 2012), http://www.csmonitor.com/Commentary/Opinion/2012/0723/Voter-ID-laws-are-inherently-reasonable-not-racist-or-Republican.

[8] See Keesha Gaskins & Sundeep Iyer, The Challenge of Obtaining Voter Identification, Brennan Center For Justice at New York University School of Law (July 29, 2011), http://www.brennancenter.org/sites/default/files/legacy/Democracy/VRE/Challenge_of_Obtaining_Voter_ID.pdf.

[9] See Jamelle Bouie, Republicans Admit Voter-ID Laws Are Aimed at Democratic Voters, The Daily Beast (Aug. 28, 2013), http://www.thedailybeast.com/articles/2013/08/28/republicans-admit-voter-id-laws-are-aimed-at-democratic-voters.html (“And the particular restrictions imposed by Republican lawmakers- limiting the acceptable forms of identification…- certainly do appear aimed at Democratic voters.”).

[10] Toobin, supra note 7.

[11] See Spakovsky, supra note 5.

[12] Martin Knight, Why Democrats Really Oppose Voter ID, RedState (Aug. 17, 2013), http://www.redstate.com/martin_a_knight/2013/08/17/why-democrats-oppose-voter-id/.

[13] Id.

[14] See Toobin, supra note 7.

[15]  Knight, supra note 11.

[16] Id.

[17] John Gerardi, Arguments Against Voter ID Are Ridiculous, The Daily Caller (July 16, 2012), http://www.dailycaller.com/2012/07/16/arguments-against-voter-id-laws-are-ridiculous/.

[18] See Eugene Robinson, Witch Hunt for the Zombie Voter, The Washington Post (Apr. 30, 2012), http://articles.washingtonpost.com/2012-04-30/opinions/35454507_1_hispanic-vote-voter-id-bill-photo-id-laws (“There is no Widespread Voter Fraud. All available evidence indicates that fraudulent voting of the kind that photo ID laws would presumably prevent- someone shows up at the polls and votes in someone else’s name- just doesn’t happen.”).

[19] See Eugene Robinson, The GOP’s Crime Against Voters, The Washington Post (July 9, 2012), http://articles.washingtonpost.com/2012-07-09/opinions/35488080_1_new-voter-id-law-pennsylvania-voters-mike-turzai (“[T]he Justice Department under Bush conducted an extensive, nationwide, five-year probe of voter fraud- and ended up convicting a grand total of 86 individuals… Most of the cases involved felons or immigrants who may not have known they were ineligible to vote. Not one case involved the only kind of fraud that voter ID could theoretically prevent.”).

[20] See Justin Levitt, The Truth About Voter Fraud, Brennan Center For Justice at New York University School of Law (2007) at 3, http://brennancenter.org/sites/default/files/legacy/The%20Truth%20About%20Voter%20Fraud.pdf.

[21] Id. at 4.

[22] Gaksins & Iyer, supra note 8, at 1.

[23] Id.

[24] Id.

[25] Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification, Brennan Center For Justice at New York University School of Law (Nov. 2006) at 2, http://brennancenter.org/sites/default/files/legacy/d/download_file_39242.pdf.

[26] See Bouie, supra note 9.

[27] See Sam Roberts, 2008 Surge in Black Voters Nearly Erased Racial Gap, The New York Times (July 20, 2009), http://www.nytimes.com/2009/07/21/us/politics/21vote.html?_r=0 (“But with Barack Obama on the ballot, the makeup of the 131 million who voted last year was markedly different. While the number of non-Hispanic white voters remained roughly the same, 2 million more blacks, 2 million more Latinos and 600,000 more Asians turned out.”).  

[28] Saki Knafo, Voting Rights of Black American Trampled by ‘New Jim Crow,’ Civil Rights Advocates Say, The Huffington Post (July 25, 2013), http://www.huffingtonpost.com/2013/07/25/black-america-2013_n_3647789.html.

[29] Id.

[30] See Frank Rudy Cooper, Masculinities, Post-racialism and the Gates Controversy: The False Equivalence between Officer and Civilian, 11 Nev. L.J. 1, 33-34 (010)

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