Chapter 11 Voter Suppression Litigation

CHAPTER 11 VOTER SUPPRESSION LITIGATION

TANYA CLAY HOUSE AND MARCIA JOHNSON-BLANCO

Since the 2000 election, we have seen an overall increase in civic participation; however, voter participation did decline in the most recent presidential election of 2012.¹Voting is a civic duty, and creating a free and open election where all eligible voters feel comfortable and welcome to vote is critical to sustaining our democracy. Yet, far too many voters are still disillusioned with our democracy and do not participate in elections. According to research done by the Statistic Brain Research Institute, over 72 million eligible voters are not registered to vote.² In 2012, 59 percent of eligible voters participated in the general election.³ In the midterm elections in 2014, generally an election cycle when fewer voters participate, only 36.3 percent of voters turned out.⁴ In recent years, particularly since the 2010 midterm elections, many states have passed restrictive legislation.⁵ This legislation, when combined with burdensome procedures and policies, not only keeps countless eligible voters from exercising the fundamental right to vote, it also creates a climate of disengagement—a very dangerous trend for any democracy. By making it harder to vote, states are creating an unequal voting landscape where some voters have easy access to the ballots and others overcome significant barriers in order to vote. A legislative agenda that focuses on creating barriers rather than improving access undermines voter participation and diminishes the voice of significant number of citizens. The impact of these laws can be illustrated by the findings of courts in challenges to restrictive legislation, procedures, and policies.

I. Voter Suppression: Legislation, Procedures, and Policies Limiting Access to the Ballot

A number of states passed voting legislation in recent years that has placed an unreasonable burden on voters in general and on low income, elderly, minority, students, and voters with disabilities in particular.⁶ These laws include restrictive voter identification and reduction of early-vote opportunities. Laws such as proof of citizenship in order to register to vote challenged the federal government's role in improving opportunities for voter registration. And some states had such lax election administration practices that they severely limited the opportunity for eligible voters to cast a ballot. This chapter provides litigation case studies to illustrate the impact of such restrictive legislation, policies, and procedures, and also their suppressive impact on certain voters. These case studies illustrate that although the nation no longer has laws that explicitly deny the vote to racial and ethnic minorities, some states continue to limit access to the ballot by passing laws that are neutral on their face but place an impermissible burden on certain voters.

While suppressive tactics aimed at inhibiting the ability of certain voters to cast a ballot has unfortunately been a norm in the American democracy since its inception⁷, since the passage of the Voting Rights Act of 1965, the trend had been the dismantling of restrictions to the ballot and the development of legislation to create more access, not less.⁸ The presidential election in 2000 revealed a change in this trend, in which there seemed to be a more coordinated strategy to once again engage in reimagined voter-suppressive tactics, and eventually develop new laws to enable more institutionalized disenfranchisement.⁹ As discussed later in the chapter, this strategy more fully emerged after the 2010 midterm elections, after the change in many state legislatures. Additional context is necessary though to appreciate the concern around development of new laws that primarily focus on restricting access to the ballot. The 2008 presidential election vividly highlighted the fact that a new electoral majority is emerging with Blacks, Latinos, and youth voting in record numbers. The African-American and Latino population is projected to rise to 42 percent by 2050, and along with Asian voters will comprise a majority of the population.¹⁰According to the Pew Research Center, Latinos alone will account for 40 percent of the growth in the eligible electorate in the United States between now and 2030.¹¹That is a critical swing vote in many states. It is through this lens that we must consider the utility and impact of recent voter legislative efforts in the states.

To fully understand the depth of this institutionalized disenfranchisement, one must define voter-suppressive legislation. For purposes of this article, voter-suppressive legislation encompasses any legislation whose primary purpose and impact is to limit the access and ultimate participation in the electoral process of certain eligible voters. While the 2000 presidential election was notable for the controversy created over, among other things, the counting of butterfly ballots, this election also revealed to an uninformed and largely complacent public that there continues to be an undertone of deeply entrenched voter-suppression tactics not only in Florida, but across the country.¹² Hence, while the days of Jim Crow are gone, the strategies underlying such laws have remained and simply reemerged in new laws with the same intent.¹³

Voter suppressive legislation can take many forms. For instance, the concept of identification is not a new concept in American society. As many are quick to state, we use ID for such inane purchases as movie videos and even amusement park tickets. Of course, no one questions the use of ID to board an airline flight, so why is restrictive voter ID legislation suppressive? For clarification purposes, the argument that you need photo ID to get on a plane, so why wouldn't you use one to vote, is incorrect.¹⁴ The Transportation Security Administration requests ID, but if you don't have any, you can go through extra security. Furthermore, it is important to distinguish between the usages of ID generally to purchase discretionary items versus the required use of specific forms of voter ID to participate in a constitutionally protected and fundamental right. These are not interchangeable concepts. The development of unnecessary and overly burdensome requirements to engage in a constitutionally protected right is what is at issue.

The requirement of voter ID is not problematic as a concept, particularly when utilized for a reasonable and justifiable purpose such as determining whether one is in fact an eligible voter. In fact, the large majority of states allow citizens a variety of ways to prove their identity. These options range from signature verification or comparison, to sworn affidavits and voter registration cards, to identification documents like utility bills, bank statements, student and employee IDs, and others.¹⁵The rationale for allowing multiple forms of identification is the understanding that not all eligible American citizens possess government-issued photo identification. Yet, despite this original understanding, a strategy evolved to specifically limit certain voters from the electoral process by restricting the type of allowable ID. This is why the key terms "restrictive voter ID" are critical to understanding this suppressive nature of newly developed legislation.

Before 2011, only two states in the country—Indiana¹⁶ and Georgia¹⁷—required a specific type of ID—government-issued photo identification—in order to cast a ballot at the polls that can be counted. After the 2010 midterm elections, certain state legislatures across the country began the process of changing their laws to force, among other things, the use of specific types of identification, including those that required voters to purchase preceding documentation to obtain the required voter ID. This was despite various studies documenting the millions of citizens lacking the requisite voter ID.¹⁸ Additional studies consistently estimate that during the time these ID law were being contemplated, approximately 10 percent of voting-age citizens in the country—or more than 20 million individuals—lacked a government-issued photo ID.¹⁹ Research at the state level confirmed this. The Georgia secretary of state estimated that 198,000 registered Georgia voters lacked a driver's license or alternative state photo ID.²⁰ The secretary of state of Arizona estimated that 12 percent of the registered voters in that state—or 375,000 individuals—have no driver's license or state nonoperator ID.²¹ And the State of Missouri, in its unsuccessful defense of its restrictive photo ID law, found that between 169,000 and 240,000 registered Missouri voters lack a driver's license or alternative state photo ID.²² Thus, attempts by many state legislatures to not simply pass voter ID laws, but restrictive voter ID laws, suggest another rationale, such as the suppression of certain voters.

Another variation of restrictive voter ID requirements is the advent of additional proof of citizenship requirements. Again, with the backdrop of the changing demographic in American society,²³ there has been an increase in the number of states interested in further verifying voter's citizenship. To be clear, the current federal voter registration form includes an area for a registering voter to verify, under penalty of perjury, that they are a U.S. citizen who is eligible to voter. Yet states like Arizona and Alabama implemented additional requirements. For example, Arizona's Proposition 200 requires specific forms of evidence of U.S. citizenship from persons registering to vote. Some registrants are required to provide copies of birth certificates, passports, or other sensitive personal documents. An attestation of U.S. citizenship under penalty of perjury is not enough to satisfy Proposition 200. Election officials are required to "reject" any voter registration application that does not provide the additional evidence of U.S. citizenship set out in...