Two Words That Can Change the Course of an Election
by Mary Howe Kiraly
There are two words that can change the course of an election. We should be watching for them. When we hear them, usually beginning the September before an election, we will know that we are about to see a slumbering bureaucracy spring into action. The goal of that bureaucracy? To prevent a vast, non-existent conspiracy from committing "voter fraud". Voter Fraud has never been demonstrated to be a real threat to our elections. Nevertheless, volunteers who work at election polls work in an environment which is infused with the noise created around this charge, while trying to do the right thing.
On Wednesday, September 13, a panel from the Brennan Center (Executive Director Michael Waldman and attorneys Wendy Weiser and Justin Levitt) briefed members of the Washington Press Club on Five New Voter Suppression Strategies for 2006. They were joined in this effort by Lillie Coney, Associate Director of the Electronic Privacy Information Center (EPIC).
Mr. Waldman stressed that members of the media should be aware of voter suppression strategies, and should be reporting on them, because these strategies will drive voters, who are eligible to vote, away from the polls. It is important to note that neither the Brennan Center, nor EPIC, places these strategies within any partisan political context.
(1) New Laws that Crack Down on Voter Registration across the U.S. Although less than twenty percent of voter registration is done by non-profits, new laws- such as those recently declared unconstitutional in Florida- attempt to crack down on voting registration activities by non- profits. The League of Women Voters stopped voter registration activity in Florida due to severe penalties, that could be levied under the Florida law. As Michael Waldman emphasized, these laws are not just bad policy: they are illegal and unconstitutional.
(2) Barriers to Voting Rolls. Using databases to keep eligible voters off the rolls. Many states are implementing statewide registration requirements using a comparison of various lists to declare voters ineligible. For instance, an artist whose residence is in a warehouse loft might be declared ineligible to vote because her address appears as a business and not as a residence. Matching errors are affecting voter rolls.
(3) Inaccurate Purges of the Voter Rolls. Efforts that keep voters names from appearing on the voter rolls, through systematic purges, are done silently and in secret. This leads to mischief. There were 50,000 voters purged in Florida in 2004 and 22,000 of those were African Americans. In 2006, nine states have been found to be purging the voting rolls so far. (Note: the Brennan Center has found that voter suppression activity is most prevalent in September and October, before the November election.)
(4) Unfair Voter ID and Citizenship Requirements. In 1966, the Poll Tax was outlawed. If that tax were in place today, with inflation, it would amount to approximately $10 per voter. However, states have instituted ID requirements that cost much more, comparatively, than the poll taxes of the early Twentieth Century. For instance, a birth certificate can cost up to $45, a state ID up to $65, a passport up to $97, and citizenship certification up to $200. This example was given: When one tries to imagine the magnitude of the disenfranchisement potential with these requirements, one has only to picture the number of people trapped in New Orleans, after Hurricane Katrina, because they had no drivers license. But in addition to the actual fees, there are hidden obstacles that can also serve as barriers to meeting the ID requirement. In Georgia, for instance, most counties do not have a Motor Vehicle Office. This situation impacts 78% of African Americans in the 18-24 age group and 97% of students. At least 28 states have, or are considering, restrictive voter registration ID laws.
(5) Electronic Voting. The Brennan Center looked at electronic voting because 80% of American voters will vote electronically in 2006; and recent studies have demonstrated that a hand-held device could alter enough votes to change the outcome of an election in a state. Oklahoma and New York are the only states to outlaw wireless components in e-voting. These components can facilitate the potential for remote tampering.
How large an impact could these voter suppression techniques have? It is estimated that restrictions on voter registration could affect 6% of eligible voters. Barriers could impact between 6-10% of voters, purges could affect 3%, and voter Ids could affect approximately 10-17% of eligible voters. We have only to remember how close the outcomes have been in recent elections, to realize the potential impact of these suppression techniques. The impact of electronic voting is unknown.
Michael Waldman made three challenges to the media: (1) Understand the role of voter suppression systems. (2) Uncover the secrecy in systems that purge the voter rolls. (3) Watch for eleventh hour efforts to create barriers such as the fast tracking (which has occurred) of the Hyde Bill: HR4844, the Federal Election Integrity Act. It will amend the Help America Vote Act (HAVA) to require that a voter, appearing in person at the polls, present a government-issued, valid photo ID "...for which the individual was required to provide proof of U.S. citizenship..." http://www.moresoftmoneyhardlaw.com/clientfiles/ehlers-sub.pdf
The role of the media is crucial. The challenges to voter eligibility are easy to make but hard to disprove after the election. As Justin Levitt noted, voters must be given a "clear experience to a regular ballot" as opposed to being forced to vote provisionally.
In answering a question from a member of the press, Michael Waldman added, "Laws are so prohibitively central in limiting debate- it's hard to imagine a state where more legitimate voters are not excluded than fraudulent voters discovered."
When pressed to give an evaluation of the helpfulness of HAVA legislation, by a representative of a major network, asking if we are better off today than we were in 2000, Michael Waldman made the following observation: HAVA was a step forward. But implementation has created uncertainty and barriers. We do not know the final judgement on HAVA. Problems arise around the uncertainty surrounding voting. The HAVA requirement for a statewide database becomes problematic when implemented by election officials. Chaos is used to disenfranchise and pushback against HAVA's intent to increase voting. This has equated to political misuse.
Wendy Weiser, a Brennan Center attorney at the Democracy Program, added this analysis of the value of the HAVA legislation: Vote suppression is not required by HAVA, or related to it. HAVA is an election reform moment. This moment creates opportunity for mischief. We are seeing a lot of mischief.