For its first 200 years the American Republic slowly, sometimes infuriatingly slowly and at horrific human cost (e.g. the Civil War) expanded the franchise.
In 1870 the 15th Amendment gave blacks the right to vote. In 1920, the 19th Amendment extended the franchise to women. In 1924 Congress granted Native Americans citizenship and thus the right to vote. In 1961 the 23rd Amendment gave the residents of the District of Columbia the right to vote for president. In 1971 the 26th Amendment gave l8 year olds the vote. In 1986 Congress gave military personnel and other US citizens living abroad the right to use a federal write-in absentee ballot for voting for federal offices.
The right to vote, however, did not ensure that one could vote. Beginning at the end of the 19th century, states began passing legislation directed at restricting minority voting with often dramatic effect, especially in the South where turnout fell from 64.2 percent in 1888 to 29.0 percent in 1904.
For 100 years after the Civil War the Supreme Court ruled that even where state voting rules were discriminatory, the federal government had no right to intervene. Then in 1965 Congress finally gave blacks and other minorities the effective vote by passing the Voting Rights Act, eliminating most voting qualifications beyond citizenship for state and federal elections, including literacy tests and poll taxes. In 1966 the Supreme Court affirmed that law.
Since 1970 federal and state voting reforms have all moved in one direction: facilitating access. In 1993 the National Voter Registration Act (NVRA) offered citizens the opportunity to register or re-register to vote at many public facilities, including Motor Vehicle offices and post offices.
Between 1973 and 2009 nine states enacted Election Day registration laws. States made provisions for early voting and eased the rules on absentee voting. Some allowed voting by mail. Between 1997 and 2010 twenty-three states either restored voting rights or eased the restoration process of voting rights for those convicted of felonies.
Virtually all these laws were passed with overwhelming bipartisan support and signed into law by Republican and Democrat Governors alike.
The Tide Turns
And then came November 2010. An unprecedented politically tsunami swept the country. Conservative Republicans won a remarkable 675 seats in state legislatures, gaining control of both houses in 27 states and control of both houses and the governor office in 23.
Once in control Republicans once again exposed a fundamental difference between liberals and conservatives. Liberals focus on process. Republicans focus on outcomes.
The Republicans' first priority after gaining power was to ensure continued power by reducing the turnout of demographic groups like students, blacks, and Hispanics that traditionally vote Democrat.
The groundwork had been laid by a 2008 Supreme Court decision. In 2006 Indiana became the first state to require a government issued photo ID for voting. The Supreme Court upheld that law. Justice John Paul Stevens, writing the main opinion opined that the requirement "is amply justified by the valid interest in protecting the integrity and reliability of the electoral process."
Amply justified? An Amicus Brief filed by the Brennan Center for Justice found no justification at all. After exhaustively examining the briefs to the Supreme Court, Justin Levitt of the Brennan Center for Justice concluded, "not one of the sources cited shows proof of a vote that Indiana's law could prevent. That is, not one of the citations offered by Indiana or its allies refers to a proven example of a single vote cast at the polls in someone else's name that could be stopped by a poll site photo ID rule." The Center described the fraud targeted by Indiana's law "more rare than death by lightning."
But the lack of a shred of documented evidence of voter fraud was irrelevant to the Court. The Court decided that Indiana did not have to demonstrate that a photo ID was needed to prevent fraud. The burden of proof was on petitioners to prove not only that a photo ID would be burdensome, but that it would be extremely burdensome.
With the Court ruling in 2008 conservative Republicans attacked. In 2011 at least thirty-four states introduced bills to require photo ID to vote. Seven enacted them into law.
In 2011 at least twelve states introduced bills to require proof of citizenship to register or vote. Three states enacted these into law. Five states restricted early voting. Two states "reversed executive actions that had made it easier for citizens with past felony convictions to restore their voting rights."
The 2011 Florida law is perhaps the purest distillation of the Republican effort to making voting more difficult. Indeed, during Florida's legislative debate, State Senator Michael Bennett, the Chamber's President Pro-Tempore insisted that voting "is a hard-fought privilege. This is something people died for. Why should we make it easier?"
In 2008 Obama won Florida by just 2.5 percent. Two factors accounted for his victory. First, Florida opened the polls two weeks early. Even so, long lines across the state prompted the governor to issue an emergency order extending the hours for early voting. That enabled waves of new voters, often minorities and students to vote. Early voting also included voting the Sunday before election day. Obama's "souls to the polls" drives successfully brought tens of thousands of blacks and Latinos to vote after church. According to the Palm Beach Post "[m]ore than half of the black voters in the [November 2008] election voted before Election Day and many of them went on [the] final Sunday."
The second factor was the success of voter registration drives. In 2008, "more than a million new voters were added to Florida's rolls, 233,000 of them from voter registration drives." Hispanic and African-American voters "are approximately twice as likely to register through a voter registration drive as white voters."
The 2011 law reduced early voting from two weeks to one week. Voting on the Sunday before Election Day was eliminated. Florida eliminated the longstanding right of voters who moved before an election to update their new address at the polls on Election Day. The law now requires a photo ID. As many as 25% of African-American voters do not possess a current and valid form of government issued photo ID, compared to 11% of voters of all races.
The 2011 law required those who register new voters to turn in completed forms within 48 hours or risk fines. The New York Times recently reported this has led the League of Women Voters to abandon its efforts this year. A national organization that encourages young people to vote, Rock the Vote, recently began to register high school students around the nation. But not in Florida, because of fears that teachers could face fines.
Prior to 2007, nearly one million Floridians who were convicted of a felony were permanently disenfranchised in the state; almost a quarter of them were African-American. In 2007, Republican Governor Charlie Crist simplified and streamlined the process for individuals with non-violent convictions to regain their voting rights, affecting some 150,000 Floridians. In 2011 Governor Rick Scott returned Florida to its pre 2007 policy. Some 87,000 persons who were in the "backlog" of cases waiting for restoration will not have their voting rights restored.
That the Republicans objective in changing the voting rules is to consolidate power is incontestable. Consider Texas's new voter ID law. It doesn't allow voters to use student IDs but does permit them to use concealed weapon licenses. A few weeks ago the US Department of Justice rejected the new law as a violation of the Voting Rights Act. Texas is appealing.
Because of their convincing victories in 2010 Republicans might argue their actions are simply manifesting the people's will. But it is difficult to imagine that people voted in 2010 to make it more difficult for them to vote in the future. Some empirical evidence supports that view. In 2011 a Republican legislature and Governor in Maine eliminated that state's 38-year old Election Day registration. Last November Maine's citizens went to the ballot box and re-instated the previous law with a convincing 59 percent majority.
Unfortunately this November few if any states will let voters directly decide whether they want to reverse a 150-year-old trajectory and make voting more burdensome. The voters must express their will more indirectly, by electing legislators who believe voting should be more rather than less accessible. The new rules make this much more difficult. But that would only make a victory for democracy that much sweeter.