As strict voter ID laws are put into effect ahead of the midterm elections, recent judicial opinions and social science studies continue to poke holes in right-wing media's defense of voter suppression.
Rush Limbaugh: The “Real Reason” Democrats Object To Voter ID “Is So They Can Cheat.” On his October 22 radio show, Rush Limbaugh claimed that President Obama's recent comments encouraging voting among those who are not affected by strict voter ID laws undercut accusations that these laws are discriminatory. Limbaugh said the reasoning of those who say voter ID “will prevent minorities from voting” is “absurd.” [Premiere Radio Networks, The Rush Limbaugh Show, 10/22/14, via Media Matters]
WSJ's Jason Riley: Obama Administration's Opposition To Voter ID Is An “Overt Racial Appeal To Get Out The Base.” In a segment on the October 20 edition of Fox News' Special Report with Bret Baier, Wall Street Journal opinion editor Jason Riley complained that “the voter ID stuff [the Obama administration] is talking about constantly, as if there's some sort of Republican conspiracy out there to deny blacks the franchise” was nothing more than a political ploy on the part of the administration to gin up Democratic support in the midterm elections. [Fox News, Special Report with Bret Baier, 10/20/14]
Bill O'Reilly: “Laws And High-Level Decisions Are Not Based On Skin Color Anymore.” On the October 21 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly insisted that modern laws are no longer rooted in racism and that Democrats are playing “the race card” in an effort “to drive African-Americans to the polls”:
[Fox News, The O'Reilly Factor, 10/21/14]
But Voter ID Laws Have Repeatedly Been Found To Be Racially Discriminatory, And Race Influences Public Opinion On The Need For ID
Brennan Center's Andrew Cohen: “Mountains Of Evidence” Led To Federal Court Ruling That Texas Voter ID Law Was Discriminatory. Writing in the Los Angeles Times, Andrew Cohen, a contributing editor at The Atlantic and a legal fellow at the Brennan Center for Justice, noted that federal courts have twice found Texas' voter ID law to be racially discriminatory, both in intent and effect. Although it will be implemented for the midterm elections, Cohen pointed out that the evidence relied on by the courts that found this law violated the Voting Rights Act and the U.S. Constitution remains uncontroverted:
It is hard to chronicle in a short space the ways in which the Texas law, one of the most discriminatory voting laws in modern history, runs afoul of constitutional norms and reasonable standards of justice. State lawmakers rammed through the measure, jettisoning procedural protections that had been used for generations in the state Legislature. By requiring registered voters to present a certain kind of photo identification card, and by making it difficult for those without such cards to obtain one, the law's Republican architects would ensure that poor voters, or ill ones, or the elderly or blacks or Latinos -- all likely Democratic voters -- would be disenfranchised, all in the name of preventing a type of voter fraud that does not materially exist.
The swift passage of this Texas law -- it was blocked by the Voting Rights Act until the 2013 Supreme Court ruling in Shelby County, then began to be hustled through the state Legislature on the very day that case was decided -- is unassailable proof that intentional racial discrimination still exists in these jurisdictions. The trial judge so found, in page after page of documentation, that Texas state officials, emboldened by the Shelby County decision, devised a way to make it harder for blacks and Latinos to have their votes counted. Read her opinion for yourself.
Only three justices on the Supreme Court -- Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan -- had the courage to call the high court's ruling the sham that it is. Ginsburg wrote in the dissent that there was ample proof the Texas law discriminates, and no proof that it doesn't. There was ample proof, she wrote, that state officials relentlessly fought against amendments to the measures that would have ameliorated the discrimination, and no proof that the new restrictions will solve whatever perceived voter fraud problems lawmakers fear. About 600,000 registered voters could be disenfranchised, Ginsburg warned.
Some stoic commentators have noted that the Supreme Court did not rule on the merits of the Texas law -- that the justices may well strike it down next year, or the year after that, when it inevitably comes back to them following a ruling on the merits at the 5th Circuit. [Los Angeles Times, 10/22/14]
University Of Delaware Study: White People Who Saw “A Photograph Of African-Americans Using Voting Machines ... Expressed Stronger Support For Voter ID Laws.” According to a new study from the University of Delaware's Center for Political Communication, white survey respondents who saw an image of black voters were more likely to be in favor of voter ID laws than respondents who were shown an image of white voters. This report followed an earlier study by the same researchers, which “found that support for voter identification laws is strongest among Americans who harbor negative attitudes toward African Americans”:
A newly published study conducted by the University of Delaware's Center for Political Communication reveals that seeing a photograph of African Americans using voting machines affected how white respondents answered a survey question about voter ID laws. White survey respondents who saw this image expressed stronger support for voter ID laws than those who saw no image. Seeing an image of white Americans using voting machines did not affect white respondents' support. Research faculty David C. Wilson and Paul Brewer supervised the nationwide study.
“Our findings suggest that public opinion about voter ID laws can be racialized by simply showing images of African American people,” said Wilson. “The resulting increase in support for the laws happens independently of -- even after controlling for-- political ideology and negative attitudes about African Americans.”
[University of Delaware Center for Political Communication, 10/10/14]
Wash. Times' Ed Feulner: “If You've Ever Tried To Board A Plane, Cash A Check, Or Rent A Car, You've Almost Surely Had To Show” A Photo ID. Ed Feulner, the founder of the conservative Heritage Foundation wrote in an October 20 Washington Times column that voter ID should be required because photo identification is already required for “everyday tasks” like boarding an airplaine. The conclusion that strict voter ID “is a form of discrimination” was dismissed by Feulner as one of “fringe groups” and “people who ought to know better”:
If you've ever tried to board a plane, cash a check or rent a car, you've almost surely had to show some form of identification with your picture on it. For most people, that takes the form of a driver's license, but there are other forms of photo ID. Millions of Americans produce them every day to do dozens of everyday tasks and think nothing of it.
Why should it be any different when we vote? Anyone can show up and claim to be you. Imagine if all someone had to do was state your name and address. I don't know about you, but producing a form of ID when I vote gives me some peace of mind that no one else is voting in my name.
The short answer to the above question is that it's no different at all. In fact, to the extent that it is different, you could say it's even more important to produce a photo ID for voting. What civic duty supersedes that of voting? It's a responsibility we must take seriously.
That helps explain why 31 states have some form of voter-ID laws in effect. Some are stricter than others, but all send an important message: Voting is too important not to take fraud seriously. We need to make sure that when someone shows up to vote, he is who he says he is, and not someone else.
You'd think this would be the most noncontroversial thing in the world. Who could oppose voter-ID laws? Some fringe groups? A few, yes, but unfortunately, they're joined by some people who ought to know better, such as U.S. Attorney General Eric Holder Jr., whose headquarters in Washington requires a photo ID to enter. [The Washington Times, 10/20/14]
National Review's Rich Lowry: Complaints About Strict Voter ID Are “Unhinged.” In a column for Politico Magazine, National Review editor Rich Lowry ignored the fact that all voting requires identification and that the current legal challenges are to the new wave of redundant and unnecessarily strict voter ID requirements that intentionally or disproportionately effect minorities. Instead, he pretended that the legal challenges to these Republican-sponsored voter ID laws seek to untether all identification from voting, unlike requirements for other acts of “modern life”:
Is voting so important that it shouldn't be tethered to an ID requirement? That's not how we treat other important rights, as Hans von Spakovsky of the Heritage Foundation notes.
It takes an ID to buy a gun, a constitutional right. It takes an ID to get a marriage license or check into a hotel. No one goes around complaining that these requirements infringe on the rights of minorities to own a firearm, get married, or avail themselves of public accommodations.
Voting is inevitably going to require, even in the most latitudinarian states, some effort. You have to, at least most of the time, go to the polling place. You have to fill in the bubbles correctly. You have to deposit your ballot in a box. Not all people will go to the trouble to do this, or to do it correctly, which doesn't mean they are disenfranchised. [Politico Magazine, 10/22/14]
But You Don't Actually Need The Same Type Of ID Required By Strict Voter ID Laws For Many Of These Tasks
Salon: In 2013, There Were “33 States Where You Can Buy An Assault Weapon Without ID, Versus Zero States Where You Can Vote Without Providing Some Kind Of ID.” Writing at Salon, Alex Seitz-Wald fact-checked part of former President Bill Clinton's speech at the 50th Anniversary of the March on Washington in which he said, “a great democracy does not make it harder to vote than to buy an assault weapon.” As Seitz-Wald explained, under federal law, secondary market venues like gun shows are exempt from identification requirements and there is nowhere in the country that a voter can cast a ballot without identification:
If you live in a growing number of states, it's absolutely true. In places like Texas and Virginia with strict voter ID laws and weak gun regulations, it's pretty safe to say that it is in fact easier to purchase an AR-15 than to vote for president. Nationally, well, that's another story.
First, take a look at the voting laws. There are currently 13 states that have passed strict voter ID laws, according to Keesha Gaskins, senior counsel at the Brennan Center for Justice. (Some of those laws haven't gone into effect yet, or are facing legal challenges, but for the purposes of this exercise, we'll treat them as if they're in place.) These kinds of laws are the most restrictive type of voting legislation around. While federal law requires some kind of ID, it could be a utility bill, student ID or, in some cases, even a signed affidavit attesting to your identity, among other things. But in strict voter ID states, it has to be a government-issued photo ID, and some states, like Texas, don't even allow out-of-state IDs. These restrictions can be a big burden for millions of people who don't have driver's licenses or birth certificates, or who lost them, or who don't live near a DMV, etc.
As for guns, under federal law, you can buy a gun through a private seller without even showing an ID. And assault weapons have been fair game since the ban on them expired in 2004.
States can add their own restrictions on top of that, but only about a third have. “Under the law in 33 states, it is legal for a person to purchase any kind of assault weapon (assault rifle or assault pistol) without any kind of background check or even showing ID, so long as the seller is not licensed as a dealer,” explained Lindsay Nichols, an attorney at the Law Center to Prevent Gun Violence, which tracks firearms regulations.
And while it takes just a few seconds to complete a background check in more than 95 percent of cases, it can take hours of work and days of waiting for someone to acquire the ID they might need to vote.
Scoreboard: There are 33 states where you can buy an assault weapon without ID, versus zero states where you can vote without providing some kind of ID -- it's federal law. Meanwhile, there are 43 state where you can buy an assault weapon with an ID, and, and 37 states were you can vote without a government-issued ID. [Salon, 8/29/13]
Conservative Federal Appellate Judge Richard Posner: The Idea That You Need Photo ID To Fly Is “A Common Misconception.” After the 7th U.S. Circuit Court of Appeals declined to rehear a case involving Wisconsin's restrictive voter ID law, Judge Richard Posner dissented, arguing that the court's suggestion that “obtaining a photo ID to vote can't be a big deal, because one needs a photo ID to fly” was “a common misconception.” Posner went on to explain that photo ID is also not required to open a bank account, buy a gun, or to enter the Supreme Court building:
The panel opinion suggests that obtaining a photo ID to vote can't be a big deal, because one needs a photo ID to fly. That's a common misconception. Since, despite the 9/11 attacks that killed thousands, a photo ID is not considered essential to airline safety, it seems beyond odd that it should be considered essential to electoral validity.
The panel piles error on error by stating that “photo ID is essential [not only] to board an airplane ... [but also to] pick up a prescription at a pharmacy, open a bank account ... buy a gun, or enter a courthouse to serve as a juror or watch the argument of this appeal.” In 35 states, including Wisconsin, you don't need a photo ID to pick up all prescriptions. Bank customers do not need a photo ID to open a bank account. Federal law does not require a photo ID to purchase firearms at gun shows, flea markets, or online. It's true that our courthouse requires a photo ID to enter, but the Supreme Court requires no identification at all of visitors. [Frank v. Walker, 10/10/14]
Right-Wing Media Claim Legality Of A Voter ID Law In Indiana Means Every Strict Voter ID Law Is Acceptable
National Review's John Fund: Supreme Court Upheld “The Constitutionality Of Laws Requiring Voter ID At The Polls.” In a column for National Review Online, Fund falsely claimed that the 2008 Supreme Court case of Crawford v. Marion County Election Board was a ruling on the constitutionality of voter ID in general:
In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana's voter-ID law: He found that the Court could not “conclude that the statute imposes 'excessively burdensome requirements' on any class of voters.”
But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others. [National Review Online, 1/19/14, via Media Matters]
Fox's Brit Hume: “The Fight Has Gone On Despite” Supreme Court's 2008 Voter ID Decision. In an October 21 segment on Special Report, senior political analyst Brit Hume suggested that the Supreme Court's decision in Crawford v. Marion County Election Board upholding a voter ID law in Indiana should have been the end of “the fight” over ID requirements at the polls, even though the case was applicable only to Indiana. [Fox News, Special Report with Bret Baier, 10/21/14]
But That Case Was “State-Specific And Record-Specific” And Not Applicable To All Voter ID Laws
U.S. District Judge: Supreme Court “Did Not Hold That All Voter Photo ID Laws Are Valid.” In her extensive findings of fact and law that struck down Texas' voter ID law due to its racial discrimination, U.S. District Judge Nelva Gonzales pointed out Crawford was not necessarily controlling. As the judge explained, voter ID laws may be flawed for a variety of reasons, and the evidence about voter ID laws and their disenfranchising effect is far more developed now than it was in Crawford:
Understandably, Defendants rely heavily on the Supreme Court of the United States' Crawford v. Marion County Election Board opinion. That case involved a facial challenge to the Indiana voter photo ID law, with the argument that it imposed an unconstitutional burden on the right to vote. The Supreme Court upheld the Indiana law, but it did not hold that all voter photo ID laws are valid. This case is different because the Indiana law is materially different from SB 14, this is an as-applied rather than a facial challenge, there are substantial differences in the evidentiary record developed in this case, and this case includes claims of discriminatory effect, discriminatory purpose, and a poll tax, which were not present in Crawford.
Even more compelling, however, is the difference in the record developed by the parties. In Crawford, the Court was confronted with sparse evidence. An expert report was deemed unreliable and the number of voters potentially disenfranchised in that case was estimated at 43,000 or 1% of eligible voters. Here, Plaintiffs' experts were abundantly qualified, produced meticulously prepared figures regarding voters who lack SB 14 ID, and that number is estimated at 608,470, or 4.5% of registered (not just eligible) voters. Unlike the record in Crawford, the experts here provided a clear and reliable demographic picture of those voters based on the best scientific methodology available.
And while the Crawford case apparently had no evidence of a single actual voter who was disenfranchised or unduly burdened, this record contains the accounts of several individuals who were turned away at the polls, who could not get a birth certificate to get the required ID, or for whom the costs of getting the documents necessary to get qualified photo ID exceeded their financial and/or logistical resources. [Veasey v. Perry, 10/9/14]
Former Supreme Court Justice John Paul Stevens: “My Opinion Should Not Be Taken As Authority That Voter-ID Laws Are Always OK.” In a 2013 interview with The Wall Street Journal, former Supreme Court Justice John Paul Stevens said that his majority opinion in Crawford should not be misconstrued to mean that all voter ID laws pass constitutional muster. Stevens went on to suggest that the dissenting opinion by Justice David Souter “got the thing correct”:
In an interview this week, Justice Stevens said he isn't “a fan of voter ID” and wasn't in 2008. But he said his opinion was correct because the challengers failed to present enough evidence showing the requirement suppressed poor and minority voters. “My opinion should not be taken as authority that voter-ID laws are always OK,” Justice Stevens said. “The decision in the case is state-specific and record-specific.”
“I have always thought that David Souter got the thing correct [in his dissent], but my own problem with the case was that I didn't think the record supported everything he said in his opinion,” said Justice Stevens, who retired in 2010. “He got a lot of stuff off the Internet and inferred things and so forth.” But “as a matter of actual history, he's dead right. The impact of the statute is much more serious” on poor, minority, disabled and elderly voters than evidence in the 2008 case demonstrated, he said. [The Wall Street Journal, 10/17/13, via Media Matters]
WSJ's Gigot: Paul Gigot: Voter ID Laws Have Had “Zero Effect On Turnout.” Appearing on NBC's Meet the Press on April 13, Wall Street Journal editorial page editor Paul Gigot claimed voter ID laws have had “zero effect” on minority turnout because “African-American turnout was so much greater in 2012” than it had been previously. [NBC's Meet The Press, 4/13/14, via Media Matters]
But A Recent GAO Report Found Decreased Turnout Among People Of Color Was Attributable To Voter ID Laws
Wash. Post: “Turnout Dropped At Least 1.9 Percentage Points In Kansas And 2.2 Percentage Points In Tennessee Thanks To” Voter ID Laws. As The Washington Post blog The Fix reported, a Government Accountability Office report looked at the potential effect of voter ID laws and turnout and found that turnout decreased in Kansas and Tennessee “thanks to the laws.” Furthermore, the decrease was worse among people of color, young voters, and newly registered voters:
In response to a request from a group of Democratic senators, the nonpartisan Government Accountability Office analyzed the effect of voter ID laws in Kansas and Tennessee on 2012 turnout. Their findings? Turnout dropped at least 1.9 percentage points in Kansas and 2.2 percentage points in Tennessee thanks to the laws. By our calculations, that's 122,000 fewer votes.
The 200-plus-page report looks at several issues related to laws aimed at tightening rules around voting. The GAO compiled detailed data on various demographic groups in states that changed their laws, reviewed past studies on the effects of new laws on turnout, and attempted to gather data on instances of voter fraud, the rationale usually provided for changing voting rules. Democrats counter that the laws are thinly veiled efforts to reduce the number of their supporters that vote, by adding additional obstacles to black and young voters.
The GAO report suggests that, intentional or not, that's what happened in Kansas and Tennessee.
According to data from the states (here and here), turnout dropped 5.5 percentage points overall in Kansas and 4.5 percent in Tennessee. With registered voter pools of about 1.77 million and 4 million, respectively, that means that 34,000 Kansans and 88,000 Tennesseans likely would have voted if the new laws weren't in place.
The effects of the change weren't evenly distributed. ... Young people, black people, and newly registered voters were the groups that were more likely to see bigger drops in turnout. [The Fix, The Washington Post, 10/9/14]