Jonathan P. Baird

As we head toward the general election, voters on both sides of the political divide bring their own sense of paranoia to the process. Each side is worried about the other side cheating. The Republicans concern has been voter fraud. On the Democratic side, the concern has been voter suppression.

John Lennon once described paranoia as a heightened sense of awareness. So you have to ask: whose paranoia is more justified?

I don’t think the answer is close. Concerns about voter suppression have a substantial basis in fact. The same cannot be said about voter fraud. In our historical period, in the United States, almost all allegations of voter fraud have turned out to be baseless.

While Donald Trump has said that you have people fraudulently voting many times, there is zero evidence that is true. In 2014, Justin Levitt, a law professor and now an assistant attorney general at the Department of Justice, surveyed more than a billion votes cast in general, primary, special and municipal elections across the United States from 2000 through 2014. He found only 31 credible instances of voter impersonation. Statistically, that is an infinitesimally small number.

Levitt has written that voter impersonation is rarer than being struck by lightning.

Other types of voting fraud – voting in the name of dead people and voting by foreign nationals – have not been substantiated. Saying there is fraud does not make it so. Those concerned about voting fraud have not made a case based on evidence.

On the other hand, concerns about voter suppression do have a basis in fact and that can be easily demonstrated. Seventeen states have new voting restrictions in place for this upcoming presidential election. This is the first presidential election without the full protection of the Voting Rights Act. Also, this is one of the first elections in the aftermath of the Citizens United decision from the U.S. Supreme Court where the full power of Big Money can weigh in. And that only scratches the surface.

I would begin with voter ID laws. They are now in place in 33 states. Although they are justified as a way to insure election integrity, there is evidence that the photo ID requirement discriminates against groups that are less likely to possess photo IDs. Typically these voters are poor, Black, other minority, elderly or disabled.

On July 20, this argument received powerful validation from an unexpected place. The full United States Court of Appeals for the Fifth Circuit, widely seen as a very conservative court, ruled that Texas’ voter ID act had a discriminatory impact on minorities and did violate the Voting Rights Act.

A 2011 study from the New York University’s Brennan Center had previously shown that 6-11% of the U.S. population that is voting age lack a government issued photo ID. A more recent 2014 study by the Government Accountability Office found that voter ID laws in Kansas and Tennessee reduced turnout by 1.9 and 2.2 percent respectively compared to four states that did not pass voter ID laws – Alabama, Arkansas, Delaware and Maine. The report found that young people, black people and newly registered voters were most likely to see reduction in turnout.

A second cause of concern is early voting cutbacks. States vary dramatically as to when and how much early voting can go on. For example, in 2012, Florida cut early voting from 14 to 8 days. In 2013, North Carolina cut early voting from 17 to 10 days. It seems to me there should be some national standard so there is uniformity among the states. In the absence of a national standard, cutting voting days seems both arbitrary and destined to deflate voting numbers.

States also vary on same day registration which allows any qualified resident of a state to go to the polls on election day, register that same day and then vote. States with election day registration have 5-7% higher turnout. At present 13 states plus the District of Columbia offer same day registration. New Hampshire, to its credit, does. Procrastinators and those who wait until the eleventh hour benefit from same day registration.

We have witnessed the repeated embarrassing spectacle of voters standing in line for many hours waiting to vote. In March, during the Arizona primary, people waited five hours to vote. Many disgusted voters left without casting a ballot. The cause: election officials reduced the number of polling places by 70% from 2012 to 2016. The officials said they wanted to save money.

In Florida, in the 2012 general election, people waited up to seven hours to vote. In this instance, the lines disproportionately affected African American voters and other minorities. The question arises: how could this be happening in Florida, the state of Bush v Gore ? And how many more times is this going to happen? The track record of too many states, especially Southern states, is not reassuring.

While many may not remember or may not want to remember, in 2000 then-Florida Secretary of State Katherine Harris had ordered the removal of over 57,700 “ineligible” voters from the voter rolls. Harris had claimed the voters were ex-felons and ineligible to vote. It turned out, after the election, that the scrub list distributed by Harris was full of errors. She disenfranchised up to 12,000 legally registered voters, 41% of whom were African-American. That was an election Bush won by 537 votes. That was the margin in Florida.

That election remains the classic example of how small manipulations in the electoral process can make a huge difference.

I would be remiss if I did not mention both voter purges and felon disenfranchisement. While states have an interest in accurate and correct voter rolls, too often legitimate voters disappear from the rolls, show up election day, and can’t vote. As for felon disenfranchisement, even though many states have moved forward and removed archaic state statutes, it remains a big deal. One in every thirteen Black adults cannot vote as a result of a felony conviction. Nationally, an estimated 5.85 million voters are banned from the polls. States vary significantly in their rules about when the voting ban is invoked but, bottom line, these rules still affect millions.

To appreciate the historical background of voting suppression, all the restrictions I have mentioned must be understood inside the context of the struggle over the Voting Rights Act. In his book, Give Us the Ballot, the writer Ari Berman shows how these issues have played out since 1965. We have moved from poll taxes and literacy tests to voter ID and subtler ways to discourage the vote.

I am struck by how much more attention gets paid to the question of who people are going to vote for rather than the question of whether every eligible voter will be able to cast a ballot. Just considering the experience of Bush v Gore, we appear to be sleepwalking.

With voter turnout so low in the United States (only 57.5% of eligible citizens voted in 2012) it is past time to work to increase voter participation and to modernize voter registration. Many states still rely on outdated paper records.

I would make the case for universal automatic voter registration at age 18. Unless the potential voter chooses not to be on the rolls, the government would automatically register eligible citizens. If this vision was fully implemented it would add 50 million voters to the rolls. There is something wrong with the perspective that hopes to win by minimizing the vote.

If the election this fall is close, voter suppression could be quite consequential. We should not have elections decided by a concerted effort to keep the turnout down.

I saw this quote from James Madison which seems especially apropos now:

“Who are to be the electors? Not the rich, more than the poor, not the learned, more than the ignorant, not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.”