Category Archives: Voting Rights

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.

The Supreme Court Sacrifices the Individual in Citizens United

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Over the past few weeks, President Obama, hitting key political battlegrounds, has taken bus tours of North Carolina and Virginia and unveiled his Housing Refinance Program and his Student Loan Initiative in economically strapped Las Vegas and Colorado, respectively. Desperate to improve his public approval ratings, Obama has created programs designed to alleviate economic distress and has taken these programs directly to the people. This is how it should be—the candidate catering to the voiced needs of the people responsible for his election.

Imagine, instead, the President designing his policies to garner the support of the likes of Exxon Mobil, General Electric, General Motors, or Bank of America. What if the Fortune 500 companies held the election in the balance and campaign stumping simply involved shaking hands with top corporate executives? Suppose town meetings and debates were replaced by question and answer sessions before stockholder meetings.

As a result of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, the imagined scenario might offer a more viable means of securing election success. In Citizens United, the Supreme Court maintained that corporations are persons entitled to First Amendment rights. Hence, the government may no longer limit the campaign contributions of corporations because to do so, the Court claimed, would be to deprive the companies of their First Amendment right of free speech. The decision overturned two cases, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, which had authorized limitations on corporate spending.  Although the Citizens United decision did not overturn laws that restrict direct contributions to candidates, the justices at least recognized that the consequences of Citizens United could be tantamount to removing all restrictions.

In the name of free speech and unrestricted political discussion, the Court has raised a specter of corporate domination at the expense of individual freedom. By treating corporations as persons under the Constitution, and by protecting their personal rights, the Court necessarily dilutes the First Amendment rights of the individual. Responding to the Citizens United decision, President Obama labeled it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  Justice Stevens, who wrote a stinging ninety page dissent, aptly points out that the court erred in equating money with speech, and, in doing so, it furthers the risk of corruption.

The problem with Citizens United‘s ruling is that it goes to the very heart of our republican system of government–how to give a voice to each citizen. In other words, how does one keep the rights of the individual from being consumed by the demands of special interest groups? The framers of the Constitution addressed and grappled with this very issue. James Madison called these special interest groups factions, which he defined in the Federalist Paper No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Whereas he recognized these factions could never be eliminated, controlling the power of these factions was deemed of utmost importance, if the republic was to survive. Consequently, the Founding Fathers drafted the Constitution, separated powers and provided checks and balances, all in an effort to keep one segment of the population from becoming too powerful.

In the Federalist Paper No. 10, Madison argues the most common cause of factions is the unequal distribution of property or wealth. The tendency of the wealthy, caused by human nature, and hence impossible to eliminate, is to succeed by suppressing the rights of the weak. Consequently, the supreme task of the republic is to protect the rights of the weak. Otherwise, individual rights and freedoms become meaningless. If one applies Madison’s analysis of factions to modern corporations, the corporate structure provides the means by which a group of people can become “united and actuated” by their “passion.” This passion, to make money at all cost, is often “adverse to the rights of other citizens.” This passion, to cite only a few examples, has created a large populace addicted to nicotine, fast food, and gas-guzzling cars. It often exploits workers, by depressing wages, and consumers, by inflating prices. Left unregulated, this passion has little regard for the environment whenever conservation measures strain corporate profits.

Resonating the words of the Federalist Papers, Justice Stevens writes his dissent in the spirit in which the Constitution was drafted. He writes, “the Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” Referring back to the philosophy of Madison and other Framers of the Constitution, Stevens argues, “it was the free speech of individual Americans that they had in mind.” The chief problem with the Citizens United decision is that, by equating the First Amendment rights of corporations with those of individuals, it will, in the words of Justice Stevens, “cripple [efforts] to adopt even limited measures to protect against corporate domination of the electoral process.”  The Court has sacrificed its constitutionally granted power to keep the corporate faction in check for the good of the people.

Reality suggests that corporate millions are not spent to promote innovations that would benefit the general welfare of the public, but rather they are spent to promote and sustain managerial interests and to subvert legislation that operates against that interest. Hence the corporate voice is not even the voice of the individual shareholders. No language in the Constitution mandates the extension of First Amendment freedoms to corporations. To the contrary, the intent of the drafters is clearly otherwise—protect the rights of the individual from the encroachment of factions. As a natural extension of the Court’s logic, Justice Stevens points out that soon the Court will be granting corporations the right to vote in order to exercise their newfound freedom of speech. If the Court continues to equate the civil rights of individuals with those of corporations, why not?

Cites Used

http://www.prospect.org/article/real-problem-citizens-united

http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/

http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html

http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

http://history.hanover.edu/courses/excerpts/111fed.html

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Justice Department Challenges Texas Congressional Redistricting Plan

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By: James Tarbox

The United States Department of Justice has challenged the newly adopted Congressional redistricting plan enacted by the Texas State Legislature.  The Department of Justice argues that the plan violates the Voting Rights Act of 1965 which requires that minority groups be fairly represented in Congress. Texas is one of fifteen states under Department of Justice orders to seek and have approval granted for changes that are made to Congressional redistricting maps.  In its filing with the Federal District Court for the District of Columbia, the Department argues that the redistricting plan, as it would be implemented, creates no additional Latino or opportunity districts for recognized minorities.

After the 2010 Census, Texas was allotted four more Congressional districts due to population growth. Much of this growth was attributed to minority communities. Democrats in Texas, as well as groups representing minorities, have argued that the new districts do not properly represent this minority population growth. They argue that the new districts pack minorities into the same districts and thereby do not allot enough Congressional seats to properly represent the minority population. They claim by not adopting new districts that account for the minority population growth, Texas is disenfranchising the minority voters according to the Justice Department.

The question that must be asked is whether the provisions of the Voting Rights Act of 1965 are still relevant and needed in this day and age.  Is it necessary to provide minorities with guaranteed representation in Congress? To be honest, my only personal interaction with a judicially enforced minority district is the seventh district in Alabama.  This district covers portions of Birmingham, Tuscaloosa, and all the way down to Montgomery.  In a conversation with a friend, my friend wanted to know why the district was so large. More importantly, why does the district cover parts of three municipalities, two of which are the largest in the state? My friend wished that this district was not so gerrymandered. Looking at a Congressional map of Alabama, one can see how the boundary lines of AL-7 seem to have no rhyme or reason. However, it is clear to see that the district runs straight through AL-6 and contains the City of Birmingham, a majority African-American city. I asked this person, “Would you rather the district be split with no guaranteed representation, or would you rather it stay close to the way it is with a guaranteed representative of minority status?” This question is one that must be asked today when discussing the relevancy of the Voting Rights Act of 1965.  Have minorities come far enough in the battle for equality that the provisions of the Act are no longer needed? In Alabama, I would argue that they have, at least on a smaller level. One has to look no further than a special election in Cullman, AL in January 2008.  Cullman, which used to be known as a “sun down town”, elected James Fields as a state representative. Fields, an African-American, was elected in a majority white district.  While this is only one example of a minority winning an election as a minority in the district, it is evidence that even in a part of Alabama considered to be divided along racial lines, an African-American can still get elected. Based upon this limited evidence, I would still argue that perhaps it is time to end the application of the Act. When it comes down to it, in Alabama anyways, if a district encompasses a large metropolitan area, there is a good chance that there will be a large number of minority voters. Voters who are organized in groups by interests can wield great amounts of power by providing a voting bloc to certain candidates. So how is this relevant to Texas?

In Texas, the issue is whether the districts fairly represent the population segments. Currently, Texas is under judicial order to ensure that there is representation for minorities.  Under the new districting plan, minorities still retain the same number of Congressional districts as under the 2000 Census redistricting plan. However, minority group leaders argue that there should be more because of the actual population break-down in Texas. Since 2000, the Hispanic population in Texas has grown from 32 percent up to 37.2 percent of the total population. Additionally, of all the population growth in Texas, 89 percent was non-white. These numbers leave critics calling for an increase in both Hispanic and African-American districts. Currently, there are 9 Hispanic districts. Critics are now calling for this number to be increased to 13 or 14 districts.

I will be completely honest, even if I looked at a district map of Texas, I could not tell you where there are majority minority areas.  None of the current news articles on the topic discuss geographic layouts of the districts.  Every representative in Congress represents around 700,000 people. While a representative could represent one small area with 700,000 people, he or she could represent part of an urban area and part of a more suburban or rural area.  If the Hispanic population masses are in a contained area, the lines could be drawn to guarantee a Hispanic representative. But back comes the relevancy question of the Act.  Is it necessary to provide districts for minorities simply because there has been a history of under-representation and discrimination? How long do we have to atone for the errors of those in the Civil Rights era?

I would argue that there is not a need to guarantee representation. Our country has come a long way since 1965, and I believe that the vast majority of people have moved past that era in our history. That is not to say that everyone, white, black, Hispanic, etc., does not hold a preference for voting for their own race.  However, it is time to move forward. We should not be electing candidates based upon the color of their skin, but by the merits of their campaign. Politics will never be fair. Someone will always have more money, more connections, and less ethical standards than other candidates. It does not matter where you live, there will be a politician fitting the politician mold. Additionally, there will always be the incumbency advantage. When I took an American politics class in my undergraduate curriculum, the incumbency re-election rate was around 97 percent. I am sure this percentage has fallen with the Congressional elections of 2008 and 2010, but it is still high.

Looking at the numbers in Texas, there will be a time, even if not now, where Hispanics will be able to use their population numbers to heavily influence the outcome of elections. While the current voting population percentage of Hispanics is 24 percent, this number will steadily grow. With over 37 percent of the total population of Texas, I would imagine that 24 percent will soon be over 30 percent. Even if Congressional district lines are not drawn to guarantee a Hispanic representative, by organizing and getting out the vote, Hispanics will still be able to have candidates elected. It’s all about running successful campaigns and getting prospective voters to support your candidate. That being said, I believe that the Republican-held legislature in Texas did go too far, if the allegations are correct. The Hispanic population cannot be crammed into one area.  The population could have been spread out.  It should be remembered that it only takes 50 percent plus one vote to win an election.  Even as someone who is a Republican and wants the Republicans to maintain a firm grasp on Congressional seats in Texas, I believe that there should be opposition in a district. In fact, I think that opposition and healthy campaigns are good things. When a politician faces opposition, he or she is forced to uphold campaign promises and actually govern instead of being a do-nothing kind of politician.

When it comes down to it, I believe that the Texas redistricting plan will be overruled by the courts.  This is due to the fact the Voting Rights Act is still being actively enforced by the Justice Department.  While Texas can fight the federal government, based upon the current allegations, I do not believe that it will be able to win in full and keep its current redistricting plan. In order to make the Act fully obsolete, I believe that it should be phased out in stages. This phasing out can be accomplished by limiting the number of new districts that can be guaranteed for minority representation. So instead of giving 13 guaranteed districts, the court could order 11 guaranteed minority districts. At the same time, it should be made known that the Act is being phased out and that this result is a compromise. Obviously everyone would not be happy about this solution. However, for those people advocating for guaranteed minority representation and gerrymandered districts reflecting as such, this would be a fair compromise over completely ending the implementation of the Act all at once.

What is funny in all of this is that this will not be the first time that Texas has seen its redistricting plan shot down by the courts. Its plan following the 2000 census was overturned by the Supreme Court in 2006. Texas needs to figure out how to better draw lines to ensure that legal battles do not ensue after their implementation (assuming that the Voting Rights Act is continued to be upheld and implemented by the courts). There is a lot to be said for “to the victors go the spoils.” In this case, the Republican-led Texas State Legislature acted on this principle.  However, Texas must follow court orders. Even if the Congressional districts are drawn in a manner that spreads the wealth around to minority groups, Hispanics still only currently represent 24 percent of the voting population. It is true that eventually this 24 percent will grow to be much larger; however, for the time being, Republicans can remain in control with good campaigning and by ensuring that once elected, they govern in an ethical manner.

Sources of Information:

http://latimesblogs.latimes.com/nationnow/2011/09/justice-department-condemns-texas-redistricting-.html  

http://www.mainjustice.com/2011/09/20/doj-challenges-texas-redistricting/  

http://online.wsj.com/article/SB10001424053111903374004576581191758640176.html  

http://latino.foxnews.com/latino/politics/2011/09/19/doj-2-texas-voting-maps-dont-meet-federal-law/  

http://www.google.com/hostednews/ap/article/ALeqM5hFos_twnnWpfdw810eI-gjZaevlg?docId=f18bc78facac4c17876197eb55b1b0ad

http://ballotpedia.org/wiki/index.php/Redistricting_in_Alabama

http://en.wikipedia.org/wiki/United_states_house_of_representatives

http://www.cbsnews.com/8301-503544_162-20109665-503544.html

 

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

 

 

 

 

 

 

 

 

 

 

 

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