We are now three weeks to Election Day, which means we are deep into another round of the voting wars—the ceaseless legislative, legal and regulatory battle over which Americans can vote, and when and where and with what paperwork they must do so. Here's a modest proposal: How about we finally call off the fight?
Forget it, you say. There is no way the Republican Party and conservative movement, which have invested so much time and effort in restricting the franchise to serve partisan ends, are going to give up now. But what if there are some good reasons why it might actually be in their interest to do so? Consider:
1. The voting wars are a costly, bureaucratic nightmare.
Conservatives claim to disdain bureaucratic waste and costly litigation—which is exactly what the voting wars have devolved into. Every few days, it seems, brings a new court ruling on a state’s voting laws, often reversing another ruling of just a few days or weeks prior. This back and forth is not just hard to keep track of—it is also causing no end of bureaucratic disarray, which comes at a price to the taxpayer. Take Wisconsin, one of the most contested fronts in the voting wars. In April, a federal district court judge tossed out the state’s new law requiring photo ID at the polls. Last month, a federal appeals court overruled him—but not before absentee ballots had gone out to voters, which meant that the state’s 1,852 municipal election clerks had to start sending out notices to the 11,000 voters who had already requested absentee ballots alerting them that they would need to provide a copy of their photo ID with their returned ballot. The state’s Government Accountability Board also scraped up close to $20,000 from its budget to fund a last-minute public-awareness campaign about the voter ID requirement, with another $400,000 on tap to continue the campaign until Election Day.
But then came yet another reversal—the Supreme Court’s ruling on Thursday night suspending Wisconsin’s voter ID requirement because it was being implemented too close to the election to allow people without IDs to obtain them. The $400,000 campaign is on hold—but the $20,000 has been spent, and the (now pointless) efforts to reach absentee voters about the photo ID rule have already been made. Is this really how Governor Scott Walker thinks we should be spending taxpayer money?
2. The absence of voter fraud is becoming impossible to deny.
Liberals and civil libertarians have long argued that the threat of voter fraud cited to justify voter ID laws was wildly overstated, and that the only real effect of such laws would be to reduce voting by racial and ethnic minorities and young people who lacked the necessary identification. But there was just enough empirical haze around the laws, and their central claim was sufficiently intuitive (yeah, why shouldn’t we require an ID to vote, if you need one to get on a plane or pick up a prescription?) for many neutral arbiters to go along with the laws, as did the Supreme Court with its 2008 ruling (written by the liberal Justice John Paul Stevens!) upholding the voter ID requirement in Indiana. Increasingly, though, voting restrictions are losing the benefit of such official diffidence as the reality of the new laws starts to sink in. Last year, the highly respected, Reagan-appointed federal appeals court judge Richard Posner declared in a memoir that he had erred in writing the majority opinion upholding the Indiana law, which was in turn affirmed by the Supreme Court. The voter ID requirement, he wrote, was “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” Earlier this year, the federal district court ruling overturning Wisconsin’s voter ID, by Judge Lynn Adelman, was stinging in its denunciation: “Because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight,” he wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”
Yes, the appeals court overruled Edelman a few months later (with Posner issuing a strong dissent: “Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid,” he wrote.) But the fact remains that the absence of evidence of voter fraud is becoming harder to deny and giving skeptical judges more confidence to overturn the laws. In Texas, where federal district Judge Nelva Gonzales Ramos last week struck down the state’s stringent voter ID law, there have been two convictions for in-person voter impersonation over a 10-year stretch during which 20 million votes were cast, leading Ramos to declare the photo ID requirement the equivalent of an “unconstitutional poll tax.” Also last week came another major empirical blow to voter ID proponents: a report from the Government Accountability Office that not only further affirmed the lack of evidence of voter fraud, but also determined that voter ID laws in Kansas and Tennessee had likely reduced turnout by minorities and young people, just as opponents of the laws have all along been saying such laws would do. “The evidence of a voter fraud problem has gotten only weaker, and the effects on turnout potentially larger,” says Rick Hasen of the University of California-Irvine School of Law, a leading voting-law expert.
As a result, centrist arbiters are increasingly coming to the conclusion that the Washington Post editorial board did over the weekend in an editorial titled “Republicans go to great lengths to keep some people from the ballot box”: “The United States does not have a voter impersonation crisis demanding the imposition of voter ID requirements… And it’s hardly outrageous to spend money to open polling places well before Election Day and keep them open for long hours. Instead of juicing the rules to minimize opponents’ turnout, the country’s leaders should adopt an automatic, universal voter registration system and remove absurd restrictions on which polling places individuals must attend. The current, cumbersome, two-step voting process promotes confusion and deters participation. Republicans’ blatant efforts to depress turnout even more is a disgrace.”
3. The GOP's voter suppression efforts are motivating Democrats.
The findings of the GAO report on reduced turnout in Kansas and Tennessee might seem like a good argument in favor of Republicans keeping up the voting wars: if the laws are keeping Democratic-leaning voters at home, isn’t that a sign that the laws are working just as Republicans secretly (or not-so-secretly) hope? The thing is, there is also reason to believe that the push to restrict voting is in some states serving as motivation for precisely those groups of voters who targeted by the laws to make the most of their franchise. In Ohio, another major front in the voting wars, African-Americans voted at even higher levels in the 2012 election than they had four years earlier, when President Barack Obama was making his historic first run for the presidency. And in North Carolina, where the Republican-led government passed the nation’s most comprehensive voting restrictions in 2011, one Democratic activist told the Washington Post’s Greg Sargent that the restrictions—which include eliminating same-day voter registration and cutting back early voting—were firing up voters who might otherwise be indifferent: “The news that the Republicans are trying to suppress the vote is highly motivating to our core supporters. As it turns out, low turnout base voters don’t take kindly to the message that somebody thinks they should stay home.” Several conservatives, including New York Times columnist Ross Douthat, have for a while now been warning that voting restrictions are serving as a useful goad for Democrats.
How to reconcile the GAO’s finding of depressed youth and minority turnout in Kansas and Tennessee with the opposite result in places like Ohio in 2012? Well, for one thing, Ohio, while having cut back on early voting in 2012, did not have a stringent voter ID requirement in place for that election that may have kept eligible voters from the polls as seemed to happen in Kansas and Tennessee. But the other difference may be the political context of the states—that is, that Ohio, like North Carolina, is a battleground where there are Democratic campaigns doing everything they can to get voters to the polls despite the restrictions—including reminding them of said restrictions as a motivating device. In red states like Kansas and Tennessee, by contrast, there was no one stoking a backlash (or helping voters without IDs get them), leaving Democratic-inclined voters who lacked the necessary identification with less reason to overcome the obstacle.
In other words, the voter ID laws may be suppressing turnout enough in solidly red states to buttress opponents’ argument that the laws are discriminatory—but in battleground states where Republicans most desire an edge, the laws may be proving counter-productive. It’s the worst of both worlds: the laws are costing Republicans moral standing, with less-than-desire partisan gains.
4. Rand Paul says so.
After the 2012 election, the Republican National Committee released a much-ballyhooed report on the imperative to broaden the party’s demographic appeal. “America is changing demographically, and unless Republicans are able to grow our appeal … the changes tilt the playing field even more in the Democratic direction,” the report declared. “If we want ethnic minority voters to support Republicans, we have to engage them and show our sincerity.” A few sections later, the report got more specific: “The RNC must embark on a year-round effort to engage with African American voters. The engagement must include not only persuasion based upon our Party’s principles but also a presence within community organizations. There are numerous outside groups that are studying the best way for the Republican Party to better reach African American voters.”
Well, there’s a pretty basic way to “better reach African American voters”: stop trying to keep African Americans from becoming voters.
Rand Paul gets this, which is why he’s been urging his party to call off the fight, albeit with occasional hedging. Yes, he has his own motivations for establishing good relations with African Americans. But his chiding of his own party on this score has hit a real nerve. “So many times, Republicans are seen as this party of, ‘We don’t want black people to vote because they’re voting Democrat, we don’t want Hispanic people to vote because they’re voting Democrat,’” he said this month. “We wonder why the Republican Party is so small. Why don’t we be the party that’s for people voting, for voting rights?”
Why not, indeed. I have little expectation that the diehard champions of voting restrictions are about to relinquish the cause—just the other day, John Fund and Hans Von Spakovsky, the John Jay and Tom Paine of the voting-restriction movement, wrote an op-ed crowing that “the Left and President Obama are losing their fight to block the widespread introduction of voter ID cards.” “The myth that voter ID is a new Jim Crow-type effort to reduce minority voting is widely rejected for the rubbish that it is,” they wrote. (Fund followed up this week with another piece headlined, “Braced for Voting Fraud in Colorado.”) And I’m well aware that the movement has advanced far enough that it’s not just a matter of getting its foot-soldiers to give up the fight, but of actually reversing laws that are already on the books in Kansas, Tennessee, and many other states (22 states have implemented new restrictions on voting since 2010 alone). Finally, there’s the little matter of the Supreme Court, which gave freer rein to states bent on restricting voting with its 5-4 ruling last year eviscerating the Voting Rights Act.
Still, it seems not beyond the realm of possibility that other Republicans and conservatives may start reckoning with the points listed above and start rethinking this anti-democratic crusade. Just a few weeks ago, Americans of all political stripes praised the Scots for the extraordinary democratic display of their independence referendum, in which 84.5 percent of eligible citizens voted. How about if we called off this utterly opposite, undemocratic display of seeking to keep a whole swath of Americans from the polls?
Or we could just keep fighting this war—year after year, inch by inch, citizen by citizen.
Claire Groden contributed reporting for this article.