In 2005, Mark “Thor” Hearne, a lawyer who had worked for the Bush-Cheney political campaign, founded the American Center for Voting Rights.
The center produced one 72-page report: “Vote Fraud, Intimidation, & Suppression in the 2004 Presidential Election,” which was submitted to a House committee chaired by Ohio Congressman Bob Ney (who would later do time for his role in the Jack Abramoff scandal).
The report included no documented account of any individual impersonating another at a polling place. Yet it recommended that “[s]tates should adopt legislation requiring government-issued photo ID at the polls and for any voter seeking to vote by mail or by absentee ballot.” The center soon closed its doors, or more precisely its private postal mail-drop, and Hearne returned to private practice.
What Hearne was selling had a longer shelf life than his voting rights center. Wall Street Journal columnist John Fund and Heritage Foundation Fellow Hans von Spakovsky began promoting photo-ID laws as an essential line of defense against election fraud. Republican state party officers began writing voter-ID planks into their platforms. And in 2009, the American Legislative Council drafted the model legislation that Republican legislators would use a template for their bills. (ALEC is a Republican outfit that receives more than 98 percent of its funding from corporate lobbyists.)
In 2011, Republicans in 38 states introduced legislation that would make state-approved photo-ID cards a requirement to vote. Seven states signed it into law: Alabama, Florida, Kansas, Rhode Island, South Carolina, Texas, and Wisconsin.
It was a remarkable achievement. Prior to 2006, no state required a voter to show a government-issued photo ID card in order to vote. In 2012, states in which voting rights have been restricted will provide 171 electoral votes, 63 percent of what is needed to win the presidency, according to the Brennan Center for Justice at the New York University Law School.
How pervasive was the fraud that informed the voter-ID campaign? Indiana was one of the earliest states to pass a voter-ID bill, in 2007. In separate opinions upholding the law, Appeals Court Justice Richard Posner and Supreme Court Justice Stephen Breyer observed that attorneys representing the state of Indiana could provide no evidence of voter-identification fraud. “As far as anyone knows,” Posner wrote, “no one in Indiana, and not many people elsewhere, are known to have been prosecuted for impersonating a registered voter.” Justin Levitt, a Loyola Law School professor who works with the Brennan Center for Justice, has been gathering evidence of polling- place voter fraud. “I keep an open door,” Levitt said. “I think I’m up to 11 or 12 possible attempts that people have pointed to across the country since 2000. There have been about 400 million ballots cast in general elections...since 2000.”
One paragraph in an amicus brief filed in support of the Indiana plaintiffs explains why legislators began to craft solutions to problems that did not exist:
It should be noted that Indiana’s was one of at least ten bills introduced by Republicans in state legislatures between 2005 and 2007 requiring voters to show a photo ID at the polls. In the house and senate votes for these ten bills combined, 95.3 of the 1,222 Republicans voting and just 2.1 percent of the 796 Democrats voting supported the bills. Moreover, in all five cases in which both houses passed them and a Republican was governor, the governor signed them. In the three cases in which both houses passed them and a Democrat was governor, the governor vetoed them. [In two instances, only one house passed a bill.]
Simply stated, voter-ID bills become laws because Republican legislators pass and Republican governors sign them. The spike in voter-ID legislation in 2012 followed a shift in power in state legislatures in 2010, when Republicans won control of both chambers in 26 states, up from 14. The only Democratic legislature to pass a voter-sup- pression bill was Rhode Island’s.
Levitt won’t comment on intent, but when he points to the “character of the electorate” most affected by the voter-ID Viewed through this lens, intent is evident. Faced with an increase in minority populations—which tend to vote Democratic—Republican state legislatures are holding the future at bay.
The Wisconsin Legislative Fiscal Bureau, for example, found that 20 percent of Wisconsin’s residents do not now have the identification required to vote. That includes 70 percent of African-Americans under the age of 25, 177,000 elderly people, 36 percent of young voters, and approximately 224,000 college students whose student ID cards fail to meet their state’s new ID requirement. In brief: a lot of potential Demo- cratic voters. Similar biases against minority voters can be found in every voter-suppression bill enacted across the country.
And there is more to voter-ID laws than the voter- ID requirement. Florida has reduced the number of early voting days, cut in half the number of early voting hours, ended voting on the final Sunday before the election, and imposed tough restrictions on civic groups conducting voter-registration campaigns.
Testifying at a Senate Judiciary subcommittee hearing on January 25, University of Florida political science Professor Daniel A. Smith questioned the color-blind provisions in Florida’s 2011 law:
[E]ven though African Americans comprised only 13 percent of total voters and 22 percent of early voters in Florida in the 2008 General Election, they accounted for 31 percent of early voters on the final Sunday of early voting. Hispanic voters, who comprised 11 percent of total voters and 11 percent of early voters in the 2008 general election, accounted for 22 percent of the early voters on the final Sunday of early voting.
By closing polling places on Sunday, Florida shuts down the nonpartisan, church-based “Souls to the Polls” campaigns in African-American and Hispanic congregations.
Reducing the period in which volunteer registrars are required to turn in completed forms from 10 days to 48 hours makes voting drives impossible. That single measure will drive down registration among African-Americans and Latinos, who are more than twice as likely as white voters to register through such drives, according to Judith Browne-Dianis, a civil rights lawyer at the Advancement Project.
These measures are about to be tested in federal courts.
For one thing, Section 5 of the Voting Rights Act requires states with a history of discrimination against minority voters to obtain Justice Department approval to changes in voting law, or to pre-clear the changes in federal district court in Washington.
The latecomers to the voter-suppression campaign would have fared better had they passed their bills prior to 2009, when Bush Justice Department lawyers readily signed off on changes, at times ignoring the written recommendations of career staff in the Civil Rights Division.
The Obama DOJ is not so accommodating. On December 13, Attorney General Eric Holder delivered a speech defending the 1965 Voting Rights Act, and warned Texas and the six other states that passed voter-ID laws: “We will examine the facts and enforce the law.”
A week later, the Civil Rights Division of the Justice Department rejected South Carolina’s voter-ID bill on the grounds that it will result in retrogression of minority voting rights. The state’s Republican governor and Legislature will either have revise the law or challenge the DOJ in court.
Florida has sued the Justice Department in an attempt to pre-clear the more controversial provisions in its law. As has Texas, in a lawsuit that asks the court to declare Section 5 of the Voting Rights Act unconstitutional. South Carolina Attorney General Alan Wilson announced that he also intends to take the DOJ, and Section 5, to court.
There will be more to litigate. The National Conference of State Legislatures reports that voter-ID bills are pending in 26 states.