Chapter 12 The Impact of Voter Suppression Tactics on Participation and Mobilization of Marginalized Voters

• Library: America Votes! Challenges to Modern Election Law and Voting Rights (ABA) (2016 Ed.)

CHAPTER 12 THE IMPACT OF VOTER SUPPRESSION TACTICS ON PARTICIPATION AND MOBILIZATION OF MARGINALIZED VOTERS

TOVA WANG

For voting rights advocates and Americans who care about an inclusive, equal democracy more broadly, the last decade has appeared to be an endless assault on voting rights, especially on those of minorities, low-income Americans, and young people. Reaching a peak in the 2011 state legislative sessions, a cascade of rules meant to block access to registration and to the ballot box have been passed throughout the country, including restrictive voter identification laws, efforts to curtail voter registration drives, cutbacks on the times and days on which people can vote, a backsliding in some states by executive action regarding the voting rights of previously incarcerated persons, onerous requirements to just register to vote, and a resurgence of blatant acts of intimidation and deception during election periods. All the while, disparities in voter participation on the basis of race, ethnicity, income, and age persist.¹

Unquestionably this march toward exclusion in the voting process continues in some states, and Congress and more especially the Supreme Court have aggravated the situation further. Nonetheless, there is strong evidence to suggest that the momentum is turning toward a more pro-voter agenda—and that we are learning more and more about the ways in which we can increase voter engagement rather than suppress it. This includes efforts to re-enfranchise persons who have committed a crime but served their time; activity around mobilizing early voters; streamlining the voter registration system through same-day and automatic registration; and a push to restore and even strengthen the Voting Rights Act of 1965, decimated by the Supreme Court in 2013 in United States v. Shelby County.

Though less frequently discussed in the press than measures like voter identification laws, in terms of raw numbers, disenfranchisement of persons who have a criminal conviction but are no longer incarcerated is likely the single most exclusionary element of the U.S. voting system.

All together, almost six million American citizens are ineligible to vote because of a current or past felony conviction. Almost half of them have fully completed their sentences—not in prison, probation, or parole anymore. Overall, 75 percent of those disenfranchised are not in prison, but may be on probation or parole or completed their sentences—in other words, living and working in our communities.²

According to the Sentencing Project, approximately 2.5 percent of the total U.S. voting age population—1 of every 40 adults—is disenfranchised due to a current or previous felony conviction. The number of people disenfranchised due to a felony conviction has escalated dramatically in recent decades as the population under criminal justice supervision has increased. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and over 5.85 million in 2010. One of every 13 African-Americans of voting age is disenfranchised, a rate more than four times greater than non-African-Americans. In three states—Florida (23 percent), Kentucky (22 percent), and Virginia (20 percent)—more than one in five African-Americans is disenfranchised. In one state alone—Florida—1.5 million citizens, or 10.42 percent of the state's voting-age population, are disenfranchised because of a criminal conviction.³

In the 1990s and early 2000s, there seemed to be movement toward a more expansive policy toward restoration of voting rights. Subsequently, as in many areas, conservative governors and legislatures actually put back into place provisions that made getting one's voting rights back post-sentence more difficult again, such as in Florida and Iowa.⁴

Voter ID laws, as described in Chapter 11 of this volume, are another way particular communities have been targeted for disenfranchisement. While about 11 percent of Americans do not have a driver's license or non-driver's government ID, African-Americans, Latinos, immigrants, Native Americans, and the poor disproportionately lack the required documentation. Academic study after academic study has shown that these groups are much less likely than Whites to have a government-issued photo ID, such as a driver's license. A national survey by the Brennan Center found that Americans earning less than $35,000 are twice as likely to lack identification as Americans who earn more than $35,000, and that African-Americans are more than three times as likely as Whites to not have an ID. Indeed, the survey found that one-fourth of African-Americans do not have a government-issued photo ID.⁵

We have more data than ever demonstrating the disenfranchising effect of unnecessary voter registration deadlines that occur well before Election Day. With all the technology we have today, a majority of states still require voters to register to vote about a month before the election.⁶ This is a society that is more mobile than ever, which matters because Americans must register to vote all over again every time they move, even within the same county! And we know that low-income and working Americans move more often than other demographic groups. The most recent research to show the toll this is taking emerged in early 2015. Based on data from Google searches, scholars recently estimated that "keeping registration open through Election Day in 2012 would have allowed an additional 3 million to 4 million Americans to register and vote." They used the number of Google searches for "register to vote" in the weeks leading up to the 2012 election, finding the search terms were entered millions of times, with much of that activity falling at the very end of the campaign period—after the deadline to register to vote had passed in most states.⁷

To provide just one more example, early voting in the last several years has become increasingly popular. Thirty-three states and the District of Columbia offer some form of voting prior to the Tuesday Election Day.⁸ Moreover, the data from the 2008 election in particular demonstrated that African-Americans, in part due to mobilization efforts, made greater use of these expanded time periods than other communities. Perhaps not coincidentally, in states across the country, from Ohio to Florida to Georgia to North Carolina, legislatures have sought to reduce the early voting times and days available. Such measures appear to indeed have the impact of lowering turnout, particularly among African-Americans.

For example, in advance of the 2012 election, Florida enacted H.B. 1355, which, among other things, reduced the number of days that counties were permitted to offer early voting from 14 to 8, cut in half the number of total hours that counties were required to offer for early voting from 96 to 48, and eliminated in-person voting on the Sunday before Election Day. As a result, early-voting turnout dropped by over 225,000 voters from 2008 to 2012. Long lines were widespread during both the early-voting period and on Election Day. Election Day lines were so long that some people managed to vote only after midnight. One study indicated that more than 201,000 voters likely did not vote because of long lines.⁹

After the 2012 election, scholars concluded that the "effect of early voting changes reflected in H.B. 1355 was to inconvenience African Americans specifically." The research found that the cutbacks led to more crowded polling places and that "voters who faced greater congestion, and presumably longer lines . . . were disproportionately African American."¹⁰

All of this activity in the states was prelude to the more sweeping action of the Supreme Court in 2013 when it struck down a key provision of the Voting Rights Act that had required certain jurisdictions with a history of discrimination in voting to get advance approval from the Department of Justice (or the D.C. Circuit Court) before making changes to the voting system. For nearly 50 years this law had been the single greatest protection and deterrent to discriminatory voting laws.

That is the bad news. Here is the good news. There...