Introducing “Ballot Watch”
Frontline October 1, 2014
As the November midterm elections approach, the race for control of the Senate has tightened dramatically. Margins in some key states are so thin that the outcome could be determined by a small number of votes. Who casts those votes is at the heart of a renewed debate over access to the ballot, sparked by lawmakers in the 28 states that have passed new voting laws in the past five years.
To understand the impact of these changes, FRONTLINE is launching Ballot Watch, an interactive database of voting laws nationwide. It’s the beginning of what will be our ongoing effort to provide the most up-to-date picture of where it is getting harder and easier to vote in America.
Among our findings:
· Since 2010, 19 states have passed laws that impose restrictions on who can vote. These laws include new voter ID requirements (passed by 14 states, reductions in early voting hours (6 states) and additional prohibitions on voting for felons (4 states).
· Of those states, 9 have a documented history of discriminating against minority voters.
· 6 states have passed laws that expand access for voters, either allowing them to vote in person before Election Day or offering greater leeway for those who vote by mail. Delaware has restored some voting rights for felons.
· 2 states — Idaho and Rhode Island — have passed both restrictive and expansive laws.
These shifts in the election landscape come against an historic backdrop of racial discrimination in voting — in particular against African Americans, but also Latinos, Asian Americans and Native Americans. In 1965, the U.S. passed the landmark Voting Rights Act, which prohibited such discrimination, and the federal government began to single out states with a pattern of denying the vote to minorities. Fifteen states were ultimately required to submit proposed changes to their voting laws to the federal government for approval ahead of time — an action known as “preclearance” — before they could take effect.
In June 2013, the U.S. Supreme Court overturned that provision in Shelby v. Holder, saying the preclearance requirement was outdated because it judged states on their past actions, not their present behavior. In the wake of the Shelby decision, 6 states — Mississippi, Alabama, Virginia, Texas, North Carolina and Florida — that had been covered under the preclearance requirement implemented new restrictive laws, including stricter voter ID requirements or, in the case of Florida, cutting back on the number of hours during which voters could go to the polls ahead of Election Day. Also, 3 swing states that were not covered under the preclearance rules have passed restrictive laws that have been challenged in court.
· Pennsylvania’s new voter ID law was blocked by the state Supreme Court earlier this year.
· Earlier this month, a federal court allowed a Wisconsin law that introduced new voter ID requirements to proceed in time for the November midterm election.
· On Sept. 29, the U.S. Supreme Court allowed a new Ohio law that imposes cuts to early voting to proceed for the November midterm election.
Voter ID Laws Gain Momentum
All states require voters to identify themselves at the polls. But not all voter ID laws are the same. Some require a name and address, or a signature, while others ask for additional identification, such as a utility bill. The most strict accept only a few specific identification documents.
Around 2010, several states began introducing bills that would tighten requirements for ID at the polls -- so far 14 states have passed such laws. The bills' sponsors said they were concerned about in-person voter fraud, or people misrepresenting themselves at the polls, and that the new legislation would make the electoral process more secure.
Studies have shown that in-person voter fraud is rare. A 2010 analysis by Lorraine Minnite, a professor at the University of Rutgers, found that even after the Justice Department launched an aggressive campaign to root out voter fraud under the George W. Bush administration, more people were charged with violating migratory bird laws and committing national park violations than election fraud. But proponents of these laws argue that even a few cases of fraud are worth putting more security measures in place.
In most states, the laws have raised concerns that some eligible voters -- usually low-income voters, who are more likely to be black or Latino -- might not be able to cast a ballot, either because they can't afford or access the documents needed to procure the necessary ID. In Pennsylvania, for example, one analysis found that as many as 500,000 eligible voters didn't have one of the acceptable forms of identification. In North Carolina, the state board of elections estimated that more than 300,000 voters, a disproportionate number of whom are African-American, lacked a state-issued ID. In Texas, the state estimated in 2012 that roughly 800,000 registered voters, a disproportionate number of whom were Latino, lacked a state-issued ID card.
Civil-rights groups have challenged these laws in court, with mixed results. The U.S. Supreme Court upheld an Indiana law in 2008, determining that it wasn't unconstitutional to ask voters to show ID. In January 2014, a state judge struck down a similar law in Pennsylvania, finding that it put an undue burden on low-income and minority voters. In September, a federal court allowed Wisconsin's law to proceed. North Carolina and Texas are currently defending their laws in court.
Today, 19 states still allow voters to cast valid ballots if they aren't able to procure an ID. In South Dakota, for example, the law asks voters to present a photo ID, but they can also sign their name to ensure their signatures match. South Carolina allows voters who aren't able to procure a photo ID to present a voter registration card, which everyone in the state receives when registering to vote.
Note: Federal law requires first-time voters who did not provide identification when they registered by mail to present identification at the polls. Voters can show either an acceptable photo ID or a government-issued document, such as a utility bill, bearing the voter's name and address.
Absentee Voting Gets Easier
Absentee voting -- by which voters mail in their ballots -- makes the process easier for the disabled, elderly and others who may find it difficult to get to the polls on Election Day. In 2012, nearly 17 percent of the U.S. electorate used absentee ballots during the presidential election.
Absentee voting is particularly popular in western states. More than half the ballots cast in the 2012 presidential election in Arizona, Colorado and Montana were absentee, according to federal election data. Three western states -- Colorado, Oregon and Washington -- now conduct all elections by mail.
Some states allow anyone to request such a ballot -- or even to apply for permanent absentee status, by which voters can receive their ballot and vote by mail every year without reapplying.
Other states are more strict, requiring voters to offer an excuse or restricting the option only to those who are disabled or have a religious objection to voting on Election Day. Nineteen states, largely concentrated in the south and northeast, require voters to provide a reason in order to mail in their vote.
Absentee voting is the only way members of the military stationed overseas, and citizens living abroad can vote. They make up a small fraction of the electorate (0.5 percent in 2012), but their ballots are at higher risk of being rejected, usually because they aren't able to return them in time to make the deadline.
In 2010, Congress passed a new law, the Military and Overseas Voter Empowerment Act, or MOVE Act, requiring that ballots be sent 45 days before an election to give service members enough time to cast their votes. Since then, states have been amending their own laws to comply with the new directives.
Voting Early More Often
Elections in the U.S. are generally held on weekdays -- not, as in some countries, a weekend or national holiday. That means that most people have to juggle getting to the polls with their normal workday and child-care schedule. For those with long or inflexible shifts, it can be difficult or even prohibitive to vote.
Today, all but 14 states -- mostly in the northeast and the south -- have adopted some form of early in-person voting, allowing voters to cast ballots as much as a month ahead of Election Day.
Election administrators in early-voting states say the policy helps cut down on voters' wait times and makes the process easier for poll workers, according to a 2013 survey of early-voting practices nationwide by the Brennan Center, a nonprofit group that advocates for improving the electoral process. States that allow early voting said that poll workers had more time to resolve glitches and ensure that as many people as possible were able to vote.
As more states adopt the practice, more people are choosing to vote early. The percentage of voters casting ballots in person before Election Day nearly doubled to 14 percent, from 2004 to 2012, according to a Brennan Center study found.
Early voters are increasingly becoming more diverse. Until recently, early voters tended to be older and whiter than the general electorate. But in 2008, African-American voters turned out early in large numbers. The Brennan Center study found that the rate of blacks who voted early nearly tripled between 2004 and 2008 in the south, where early voting rates are typically higher than the rest of the country. By 2012, African-American voters made up a disproportionate share of the early-voting population, according to Michael McDonald, a political science professor at the University of Florida who tracks demographic trends.
Since 2010, six states have passed laws to reduce the number of early voting hours, arguing that they weren't necessary. Proponents of these laws say the extra hours burdened state budgets and election administrators.
Who Loses the Right to Vote
Today, an estimated 5.8 million Americans are unable to vote because of their criminal records, according to an analysis by The Sentencing Project. The laws disproportionately affect African-American voters: roughly one-third of the disenfranchised are black, which means an estimated one in 13 black Americans are unable to vote.
All but two states -- Maine and Vermont -- have laws that prohibit people with felony convictions from voting. Some states require felons to apply for clemency from the governor, who decides whether to restore voting rights on an individual basis. Others permanently ban those who have committed certain crimes -- usually violent felonies such as murder, or crimes involving children. Alabama, for example, has a prohibition on voting for those who have committed crimes of "moral turpitude," which include theft, forgery, and drug crimes. Mississippi has a long list of crimes that lead to permanent disenfranchisement, to which it added voter fraud in 2012. In other states, people with convictions are prohibited from voting only while serving their sentence.
Beginning in the late '90s, several states moved toward restoring voting rights to those with felony convictions, either allowing them to vote once they have served their sentence, or when they have completed parole or probation, said Marc Mauer, The Sentencing Project's executive director, who helped push for the change. The shift came amid a broader push to reform sentencing policies, particularly for nonviolent drug crimes, which have disproportionately incarcerated African Americans and overburdened state and federal criminal justice systems.
In the past five years, only one state -- Delaware -- has restored some voting privileges to felons. Four states -- Iowa, Florida, South Carolina and South Dakota -- have made it more difficult for felons to win back the right to vote.