Overview

By Jamila A. Johnson

As published King County Bar Bulletin, June 2012.

Diane Wood received a postcard from the New Mexico Secretary of State in August. Its message was simple: She had been flagged for removal from the voting rolls.

New Mexico was cracking down on "voter fraud." Wood was among 14% of New Mexico voters who had been identified as not being citizens or having some other defect in their voting status. The postcard told her that she would have to prove her eligibility if she wanted to vote.

"It sent a chill up my spine. I take my voting very seriously and have never missed an election," Wood said.

Wood is hardly alone. Across America, letters like the one that showed up in her mailbox recently have been delivered to hundreds of thousands of eligible voters. What makes Wood's experience unique is that she happens to also be the voting rights director for Common Cause New Mexico.

This year is not business as usual, Wood explains. "It's not normal."

New laws and practices have been instituted across the country to stamp out so-called "voter fraud" - a problem that has yet to be documented in the jurisdictions taking action to "stop" it. These activities have had the Department of Justice scattered across the nation bringing and defending lawsuits over activities that raise questions about discrimination in America's institutions and voter suppression disproportionately impacting people of color, immigrants and those of low income.

With the presidential election a month away, it would hardly be a stretch to pronounce 2012 the year of voter suppression challenges.

Identification, Poverty and Race: A New Approach Suppressing Votes

Washington is a vote-by-mail state - most people vote from the comfort of their couch. Not so in Texas, where voting in person is still common practice.

Texas has a rough history with racial discrimination that earned the state - along with a number of others - additional restrictions under the Voting Rights Act. Before Texas can change voting laws, the new laws need to be reviewed to determine whether the change would lead to retrogression in the position of racial minorities and their effective exercise of the vote.

Enter Texas SB 14. Texas passed this bill seeking to enhance the voter identification restrictions at the polls. Under the legislation, voters would no longer be able to show utility bills or other alternate forms of identification at the polls or use expired identification. Instead, the documentation would be limited to a current, official photo ID issued by the state, or a passport.

If someone did not have an official ID, they would need to get traditional ID (at a fee) or take time during business hours to go in person to obtain "free" picture identification for voting. That "free" version required a birth certificate, which in fact costs $22 in Texas.

So began Texas v. Holder - a suit brought after the Department of Justice rejected the new law - in which Texas sought a declaratory judgment that its newly enacted law "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group."

The opinion issued on August 30 in the U.S. District Court for the District of Columbia found that Texas had failed to meet its burden: "in fact, record evidence demonstrates that, if implemented, SB 14 will likely have a retrogressive effect."

The court eventually determined that the evidence demonstrated that racial minorities in Texas are disproportionally likely to live in poverty and, because SB 14 will weigh more heavily on the poor, the law will likely have retrogressive effect.

Nationally, nearly 11% of eligible voters do not have an official government ID, according to the Brennan Center for Justice. This number is substantially higher for people of color. In fact, estimates place it at one out of every four African Americans. Some of the barriers come from the things many take for granted, but for many citizens it is hard to get government photo IDs. Why? Not everyone has access to the required, underlying documentation such as birth certificates.

While it was common to require identification to register to vote, prior to 2006 states did not require a voter to produce only a government-issued photo ID as a condition to voting at the polls. Indiana was the first state to do so and its law was upheld in 2008 by the U.S. Supreme Court. Unlike Texas, Indiana's "free" identification alternative did not require a birth certificate and expired identification was accepted. Texas v. Holder specifically found the Indiana law to be less stringent than the Texas law.

Oral arguments are happening this fall for similar cases in Pennsylvania and South Carolina. Dane County Circuit Judge Richard Niess held Wisconsin's new strict photo ID law unconstitutional on March 12. It, too, is being appealed this fall. This month, decisions on these cases could impact who is able to vote on Election Day.

Purging Halts as Claims of Voter Fraud Prove False

While voter ID laws were being "strengthened" across the country, election officials in states were coming out in droves to employ new methods to verify the citizenship and voter names on their voting rolls. As many as 12 states this year discussed, attempted or instituted voter roll purges based, in part, upon citizenship, according to Huffington Post. Hundreds of thousands of letters went out to voters challenging their eligibility. By the fall, most purges had been delayed or stopped, but the damage may already have been done.

The most publicized purge controversy came from the swing state of Florida where the Department of Justice sued, asserting violations of the national Voter Registration Act. Florida, a state with a history of overbroad purges disenfranchising people of color, the poor, elderly and young voters, spent months in lawsuits about what it could and could not do to its voter lists.

In April, the Florida secretary of state's office compiled a list of 180,000 registered voters whom it thought might not be citizens. It sent the list to each county with instructions on how to use it. Some counties followed the recommendations and others did not.

According to court documents, the county instructions included a request that the counties send a letter to each person on their list. The sample letter directed the challenged voter to sign a form swearing he or she was a citizen eligible to vote or a noncitizen ineligible to vote. If a voter signed the form swearing he or she was a citizen, the county was directed to hold a hearing to establish citizenship or have the voter attach documents showing citizenship.

The letter provided by the secretary of state proposed adding a statement that if a person failed to respond within 30 days, he or she may be removed from the voting rolls. It turns out that the underlying data used to compile the list were woefully outdated and did not include those who had since become citizens. Homeland Security records show that nearly 240,000 people had become citizens in the last three years and the source data used were as much as six years old.

"The suggestion that there was a list of 180,000 improperly registered noncitizens was plainly wrong," U.S. District Court Judge Robert Hinkle wrote in an order issued in June. Florida put the purge on hold.

In August, Florida decided to use the Systematic Alien Verification for Entitlements (SAVE) program - a way that entitlement programs check citizenship status that was developed in the 1980s - to revisit a purge. The federal government spent years denying states access to the SAVE database for voter verification maintaining that the database was not designed for this use. This year the federal government relented.

Concerns from communities of color and labor organizations arose about this system and so did another Florida lawsuit. A settlement was reached in early September and Florida again agreed to abandon further actions on the purge. As of the time of settlement, of the 8.3 million voters who participated in the 2008 election, only one voter on the list had been confirmed to be a noncitizen. Florida agreed to recontact all voters who had been told they were ineligible to vote and tell them they were still eligible.

"People are already cynical and have quit voting. This will not help when they think over 177,000 people in New Mexico should be purged from the rolls," Wood said.

According to the Brennan Center, Colorado is an excellent example of a state where allegations of ineligible voters were overblown. In Colorado, the secretary of state planned to use the SAVE system. He scheduled a check on August 22, but two weeks prior to running the check he sent letters to approximately 4,000 voters demanding proof of citizenship.

On the scheduled date, the state used the SAVE program to verify the citizenship of 1,400 of those voters who were sent letters. According to the Brennan Center, 88% of these were persuasively proven to be eligible voters. The majority of the challenged voters were swing voters and Democrats. The vast majority were people of color. Colorado halted its purge in early September, saying it just did not have time to investigate the 141 who were not persuasively found to be eligible voters.

"There is no evidence that voter fraud is a problem," David Perez, a Washington attorney at Perkins Coie said. Perez served as the assistant director of the Fred T. Korematsu Center for Law & Equality at Seattle University's School of Law and helped to draft the Washington Voting Rights Act. Perez has been following this year's wildfire of purging conversations.

"We have a long and painful history of voter suppression in this country," Perez said. "I just hope that Washington doesn't go down the road that we've seen Pennsylvania, Texas, Ohio and so many other states go down: the road that leads to more difficulties for certain groups - specifically minorities, poor people and seniors - to exercise their right to vote."

Earlier this year, Washington requested access to SAVE. While Secretary of State Sam Reed, a Republican, vowed not to purge the voter rolls on this information alone, and not to do so in 2012, the request raised concerns.

In early September, Reed announced that Washington's information would not be compatible with the SAVE system, because Washington does not gather enough information when issuing driver's licenses. He urged lawmakers to join 48 other states that gather detailed citizenship information when issuing driver's licenses so that his successors can use SAVE. Reed is not seeking re-election and will not be in office during the next legislative session when a bill will most likely be brought.