PSN 2012 Election Reform Session Roundup: The Year of Right-Wing Overreach

(With 2012 legislative sessions largely adjourned in statehouses across the nation, this is the fifth in a series of issue-specific session roundups from Progressive States Network highlighting trends in different policy areas across the fifty states.)

With a close presidential election on the horizon, this year saw conservatives continuing to ramp up their voter suppression efforts. Party leaders in Pennsylvania and Florida admitted as much, confessing that their efforts were intended to benefit conservatives in time for the elections. However, attempts to stack the deck for partisan gain encountered a number of obstacles and were nowhere near as successful as they were last year, ultimately ensuring that — despite a continuing spate of efforts in legislatures, the courts, and by partisan elections officials to roll back the fundamental right to vote — 2012 was not the banner year that the right was hoping for. If 2011 was “The Year of Voter ID,” then 2012 will certainly go down as “The Year of Right-Wing Overreach,” as courts and federal enforcement agencies struck down such blatantly partisan tactics. Though the year is far from over and several important voter suppression battles have yet to be decided in advance of Election Day, there were some key victories for democracy that bode well for 2013.

Voter ID: Efforts to Suppress the Vote Go Into Overdrive for Election 2012

Though UFO sightings are more common than in-person voter impersonation, over thirty states introduced or carried over legislation focused on an almost entirely non-existent problem. These included an assortment of new voter ID proposals and measures to “strengthen” existing laws by requiring photo ID, but also some bills to expand the type of photo ID acceptable at the polls.  The national right-wing strategy behind voter ID laws became clearer this year as the corporate backers of the controversial American Legislative Exchange Council (ALEC) were taken to task by the public (and groups including Color of Change) for their support of state legislation to suppress the vote. The effort helped lead 38 companies to flee the controversial group, and pressured ALEC to shut down their task force that promoted voter ID legislation as well as other controversial bills like Arizona’s SB1070 and so-called “stand-your-ground” laws.

Though most of the worst bills failed, there were a few exceptions. Virginia passed voter ID legislation that was eventually made a bit less onerous by Governor Robert McDonnell’s amendments to allow election officials to compare a signature on a provisional ballot with those on file (if the signatures match, then the ballot counts). The original bill required voters without identification to fax or personally present ID to voting officials within a day. A photo ID bill also passed both chambers this year in New Hampshire, where the conservative-controlled House and Senate voted to override Governor John Lynch’s veto. Both states are hotly contested in this year’s presidential election, giving conservatives a political motive for advancing efforts to decrease turnout.

However, the biggest blow to democracy this year was the passage of photo ID legislation in Pennsylvania, which is among the most devastating in the country mainly because of the limited types of identification it allows. A study found that more than 1 in 7 voters do not have valid state IDs under the law, while the number in Philadelphia alone rises to about 1 in 3. Though several groups, including the American Civil Liberties Union of PA, the Advancement Project, the NAACP, and the League of Women Voters of PA, filed a lawsuit alleging that the disenfranchising effects of the new law are unconstitutional, Commonwealth Court Judge Robert Simpson — a Republican — upheld the law in August. Arguments are set to be heard by the state Supreme Court in September.

Photo ID legislation is still pending in Minnesota, where voters will consider a ballot measure in November that, among other provisions, would amend the state constitution to include a strict photo ID requirement to exercise the right to vote and end the state’s longstanding practice of allowing people to vouch for voters without proof of residence. While Missouri had been set to consider a photo ID amendment on the November ballot as well, the legislature’s failure to replace misleading ballot measure language effectively killed the initiative. 

The good news for voters: throughout 2012, many of the photo ID laws that passed last year have been successfully challenged in the courts and by the U.S. Department of Justice (DOJ). Wisconsin’s voter ID requirement was declared unconstitutional by two different judges, ensuring that the law will not be in place for the November elections. Similarly, after the DOJ denied preclearance — required of any jurisdiction with a history of discrimination under Section 5 of the Voting Rights Act — to Texas’ photo ID law, a federal court put a second nail in the coffin by striking down the law itself. The DOJ also denied South Carolina preclearance of a similar law in 2011, though the state has filed for reconsideration.

Legal Victories: Protecting the Right to Vote in the Courts

Performing an important check on partisan right-wing legislators eager to tilt the electoral playing field in their states, the courts have made a number of important rulings that largely affirmed individuals’ right to register to vote and access the polls easily. Victories include:

  • A federal judge blocked enforcement of the most egregious provisions of a voter suppression law enacted in Florida, which would have placed unrealistic restrictions on third party registration drives. Until the ruling, the League of Women Voters and other voter registration groups had suspended their operations. The landmark decision is the first time a federal court has blocked a restrictive voting law.
  • Another federal court ruled that provisions of the same Florida voter suppression law that limit early voting “would make it materially more difficult for some minority voters to cast a ballot,” and prohibited the state from implementing the changes in the five counties that are covered by the Voting Rights Act of 1965.
  • Restrictions on voter registration drives were struck down in Texas, where a federal judge blocked parts of a new law until a trial can be held to determine whether the entire law is unconstitutional.
  • A federal court also rejected a lawsuit in Minnesota that would require election officials to verify the eligibility of Election Day Registration (EDR) voters before counting their ballots.
  • The U.S. Supreme Court effectively overturned Arizona’s requirement that voters present proof of citizenship when registering to vote.

The legal wrangling is far from over as we head toward 2013. A monumental decision may come down in the Supreme Court term that starts in October, when the justices will consider ruling on the constitutionality of the Voting Rights Act and its foundational preclearance provision.


Beyond Voter ID: New Ways to Disenfranchise Voters

Conservatives attempted to exploit anti-immigrant sentiment by using the same faulty rationale for voter ID laws — keeping non-citizens from “stealing” our elections — to push for a new initiative: purges of non-citizens from the voter rolls.

Most notoriously, Florida has been trying to purge its rolls since 2011, at first using unreliable data from the Department of Motor Vehicles that initially claimed to identify nearly 200,000 non-citizen voters — a far cry from the 40 non-citizens who were eventually removed from the rolls. Unsurprisingly, 87% of people on the list were people of color. Luckily, some counties have refused to implement the purge program. As Christina White, deputy elections supervisor in Miami-Dade county (the most populous county in the state) commented, “There were so many problems that we stopped.”

The efforts recently grabbed headlines after the U.S. Department of Justice sued Florida, stating that the purge violated the federal Voting Rights Act, and leading to a countersuit from the state. Though the fight is ongoing, the federal government agreed in July to let Florida use the U.S. Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) database to help purge non-citizens from the state’s rolls, a blow to efforts to protect voters.

At least thirteen other states — some of which are battleground states, all of which have conservative secretaries of state or lieutenant governors — have also expressed interest in using SAVE to purge their own rolls. Yet SAVE was not designed to help states verify voter eligibility, and is not updated immediately after someone becomes a citizen. Voting rights experts predict as many as 27.4 million Americans in these 14 states could experience problems with their voter registrations as a result of data errors.

Finally, Colorado is experiencing déjà vu after Secretary of State Scott Gessler’s proposed rule to forbid county clerks from mailing ballots to voters whose registration record is marked “inactive.” Though Gessler lost a similar battle in the fall when he sued to prevent Denver County from sending ballots to inactive voters, his decision to instead revise the rules this time around means that the new rules can go into effect at his leisure. The debate in Colorado is particularly heated since more voters are taking advantage of the option to vote by mail — in 2008, 45 of the state’s 64 counties saw half of their ballots cast by mail and 15 counties had over two-thirds.

Victories to Expand and Protect the Franchise

Luckily, 2012 also featured some bright spots that bucked the trend of imposing barriers to registration and voting.

Connecticut’s Governor Dannel Malloy and Secretary of State Denise Merrill championed a bill to enact same day registration (SDR) and online voter registration, which easily passed both chambers and was signed into law. According to Sen. Gayle Slossberg, co-chair of the Assembly’s Government Administration and Elections Committee, one out of every three eligible voters in Connecticut is not registered, a situation that SDR, in particular, is well-positioned to improve. In general, SDR improves overall turnout by 4-5%, with greater gains made among groups with historically lower voting participation, such as people of color. A similar bill to approve SDR was passed in California, which would not take effect until the 2016 election.

Legislation to implement online voter registration was also signed into law in Georgia and Hawaii, which will make it easier for eligible voters to update their registrations when they move and is a great first step in modernizing antiquated voter registration systems. Connecticut also enacted a law that imposes stricter penalties on those who purposefully misinform voters or engage in other deceptive practices; similar legislation to protect voters from Election Day shenanigans passed one chamber in Colorado and Maryland.

Finally, Delaware passed a bill that would eliminate the state’s five-year waiting period and immediately restore voting rights to eligible felons upon completion of their sentence. Because the five-year waiting period is codified in the state constitution, Delaware legislators must pass an identical version of the bill in the 2013 session for the changes to go into effect.

Some of the biggest victories in 2012 actually came from conservative veto pens. Ohio Governor John Kasich signed a bill to largely repeal the provisions of HB 194, the voter suppression bill whose repeal was scheduled to be on the November ballot thanks to a drive that turned in over 300,000 signatures. Because HB 194’s ban on in-person early voting during the three days immediately preceding the election is still in place, the Obama campaign and Ohio’s Democratic Party have sued to block the changes, which would keep the referendum on the ballot. Michigan Governor Rick Snyder also vetoed three of the most contentious bills in a 14-bill election reform package that was championed by conservative Secretary of State Ruth Johnson, and would have required the following:

  • Photo ID for first-time voter registrations or to obtain an absentee ballot;
  • Voters to check a box on a ballot or voter registration application affirming that they are citizens;
  • New restrictions and requirements on third party voter registration groups.

Fortunately, none of these measures — which would have disproportionately impacted low-income and minority voters — will go into effect, as even conservative governors seem increasingly cognizant of the political and moral perils of anti-voter legislation.

Looking Forward to 2013: Modernizing the System, Protecting the Vote

Though more studies showed in 2012 that voter ID is a misguided, ineffective means of addressing electoral fraud, the upside of the conservative focus on “protecting the sanctity of the vote” and the rolls may be the highlighting of the need to update our antiquated, patchwork voter registration system. The components of voter registration modernization ensure that records are more accurate, opportunities for fraud are reduced, and that the overall process is more efficient — all while saving taxpayers millions of dollars each year, something that liberals and conservatives can agree upon.

If history is any indication, one of the biggest problems plaguing Election Day will be partisan misinformation campaign designed to skew the vote — not undocumented immigrants, as conservatives insist. The confluence of near-universally weak state laws on deceptive practices and a historically close election could result in record numbers of voters kept from the polls. Legislators should take advantage of public discussion of disenfranchisement to champion legislation that protects voters.

Full Resources from this Article

PSN 2012 Election Reform Session Roundup: The Year of Right-Wing Overreach

Brennan Center for Justice — Voter Registration Modernization
Demos — Voting Rights & Voter Registration
Lawyers’ Committee for Civil Rights Under Law — Voting Rights Project
Project Vote
News21 — Who Can Vote?


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