[EL] Up to 1 Million Voters Face Disenfranchisement

Sun Sep 16 10:30:32 PDT 2012

Given the power of the word "disenfranchise," we are stuck with the task of deciding what counts.  I understand Rick's concern about "diluting" the term, but there is also a serious problem in the other direction, with defining disenfranchisement so narrowly that only insurmountable burdens count as disenfranchisement.  I think that definition is problematic for many reasons, including that it is disconnected from the modern history of disenfranchisement in the U.S.

To keep it simple, consider two groups.  Rick mentioned in an earlier post that someone who "cannot afford" to pay a poll tax is disenfranchised.  That much is hopefully uncontroversial.  So consider

(1) People who literally did not have $2 (or whatever amount) to their name at the time the tax was due, and had no way to obtain credit;

(2) People who had $2, or had a way to obtain it, but of whom it can fairly be said that the poll tax caused them not to vote.  For this second, larger group, the burden was not insurmountable, but it was significant enough that the authorities could be confident that this group would not be voting because of the poll tax.  

(Group 2 would include, among many others, most of the poor white women mentioned by Morgan Kousser, whose households concluded that it was worth it to pay the poll tax for the husband but not the wife.)

Group 2 contains most of the people the poll tax disenfranchised -- at least as I would use that term.  If we define disenfranchise so narrowly that only group 1 counts, I think we've made a serious mistake and lost sight of how disenfranchisement actually works.

Joey

Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu

On Sep 16, 2012, at 11:45 AM, Rick Hasen wrote:

> I'm going to be out of pocket soon for the next few days and won't be 
> able to comment more.
> 
> To clarify, my definition of "disenfranchisement" is not a legal 
> definition.  But I do think that when people throw around that word to 
> mean anything from outright barring of someone to vote to a change in 
> registration rules to require registration to be within 30, rather than 
> 15, days of the election, then the term gets diluted and loses its 
> meaning and becomes empty rhetoric.
> 
> There are lots of recent changes to voting which I believe are 
> ill-advised as a matter of policy (such as cutting back on early voting 
> in states which have seen long lines and problems on election day) and 
> which may be unconstitutional because they are not justified by a strong 
> enough state interest (such as onerous voter identification laws, but 
> see Crawford), but which I would not classify as "disenfranchising" (on 
> voter id, at least to the vast majority of voters in a state).
> 
> Rick
> 
> 
> On 9/16/12 8:51 AM, Douglas R. Hess wrote:
>> It seems Rick's definition of disenfranchisement draws a line where perhaps
>> it is better to see a sliding scale of difficulty. With enough time, skill
>> (including knowing what to do), money, many without the right ID, of course,
>> could get the ID. That's not the issue. The question is: How are these
>> difficulties distributed AND how steep is it for various people? Hard to
>> measure. (In some states people have noted the costs of certain hurdles.)
>> 
>> So we may have people in various categories harmed by the law, including
>> people who
>>  (1) know what to do but cannot afford to do it (in some sense of "afford");
>> 
>>  (2) misunderstand the law and end up wrongly thinking they have the ID
>> (Lori's point, which I think is strong and this really needs more
>> attention);
>>  (3) misunderstand the law and don't try to get the ID (if they could or
>> not);
>>  (4) people who will face confusion or discrimination (intentional or not)
>> on the part of poll workers regarding new ID requirements.
>> 
>> Are there other categories?
>> 
>> I would also note that people are not wrong to use the word
>> disenfranchisement in a way that conflicts with what may be a legal
>> definition...if there is one (or is this your own definition, Rick?). To
>> mean something like "targeted for additional burdens" may not be ideal in
>> court, but ultimately this is a value expression and judgment. That some
>> political operatives are trying to keep other people away, and other people
>> are ignorant of the hurdles they are building that are unfairly distributed,
>> amounts to a result that is disenfranchisement to me.  The history and
>> intent of the NVRA to lower hurdles (not just in registration, btw) to
>> federal elections (hurdles that were unevenly distributed) seems to point to
>> this conceptualization of the term.
>> 
>> -Doug
>> 
>> 
>> -----Original Message-----
>> From: Lorraine Minnite [mailto:lminnite at gmail.com]
>> Sent: Sunday, September 16, 2012 12:31 AM
>> To: law-election at department-lists.uci.edu
>> Subject: Re: [EL] Up to 1 Million Voters Face Disenfranchisement
>> 
>> One of the problems highlighted in the Pennsylvania case is that there are
>> people who think they have the ID, but in fact, what they have would not
>> comply with the state's new rules.  According to the Barreto/Sanchez survey
>> results presented in court, 12.1 percent of registered voters (or
>> 997,494 people) thought they had the proper ID, but actually do not.  If
>> these people believe they are in compliance and they are not, when they go
>> to the polls, they risk disfranchisement.  If they believe they are in
>> compliance, they are not going to do anything to obtain the proper
>> ID.   If nothing happens between now and the election and these people
>> go to the polls and are turned away or don't get provisional ballots counted
>> because they can't produce the requisite ID in time, aren't they
>> disfranchised - at least in this election?
>> 
>> On 9/15/12 11:47 PM, Rick Hasen wrote:
>>> If someone cannot read and cannot pass a literacy test, that person is
>>> disenfranchised by a literacy test.
>>> 
>>> If someone cannot afford to pay a poll tax, that person is
>>> disenfranchised by a poll tax.
>>> 
>>> There are other reasons to object to the use of these tests applied to
>>> others aside from actual disenfranchisement.  For example, literacy
>>> tests and poll taxes might be seen as not rationally related to the
>>> exercise of the franchise.  This is the position I take.  The Supreme
>>> Court split on that question, upholding literacy test (in Lassiter in
>>> 1950) and striking down poll taxes (in Harper in 1966).
>>> 
>>> In addition, literacy tests also were administered in racially unfair
>>> ways, and were often administered in an arbitrary way.
>>> 
>>> Under my view, a person who does not have an i.d. and has to go
>>> through the hassle of getting the i.d. is not disenfranchised, but a
>>> person who does not have an i.d. and cannot afford the underlying
>>> documents to the i.d. is disenfranchised.  There are be line drawing
>>> problems in deciding whether someone is too poor to afford the
>>> underlying documents, but there will clearly be people on the side of
>>> the line who could afford the i.d. and those who cannot.
>>> 
>>> 
>>> On 9/15/12 8:33 PM, Michael McDonald wrote:
>>>> By this logic, literacy tests didn't disenfranchise anyone, only
>>>> those who were unduly burdened because they didn't learn how to read.
>>>> Nor did poll taxes, since a poor person who wanted to vote could just
>> skip a few meals.
>>>> And if you want to flip it around for contemporary Republican
>>>> constituencies, keeping in mind that literacy tests and poll taxes
>>>> were originally aimed at Southern African-American Republicans, our
>>>> military personnel in war zones were not unduly burdened by
>>>> registration laws that required applications to be notarized since
>>>> they could take extraordinary measures to get the notary.
>>>> 
>>>> But, perhaps you have another word for "disenfranchised" that
>>>> describes people in these situations?
>>>> 
>>>> ============
>>>> Dr. Michael P. McDonald
>>>> Associate Professor
>>>> George Mason University
>>>> 4400 University Drive - 3F4
>>>> Fairfax, VA 22030-4444
>>>> 
>>>> 703-993-4191 (office)
>>>> e-mail:  mmcdon at gmu.edu
>>>> web:     http://elections.gmu.edu
>>>> twitter: @ElectProject
>>>> 
>>>> 
>>>> -----Original Message-----
>>>> From: Rick Hasen [mailto:rhasen at law.uci.edu]
>>>> Sent: Saturday, September 15, 2012 11:12 PM
>>>> To: mmcdon at gmu.edu
>>>> Cc: law-election at UCI.edu
>>>> Subject: Re: [EL] Up to 1 Million Voters Face Disenfranchisement
>>>> 
>>>> Based on a conversation with a voting rights activist last week, I
>>>> think part of the issue here is definitional.  I define a person as
>>>> "disenfranchised" by a voter id law if that person literally cannot
>>>> vote because of the law but who wishes to cast a valid vote.  The
>>>> most important cases would be: (1) a person who cannot get the
>>>> underlying documentation needed to get a state issued i.d. (such as
>>>> there are no birth records); (2) a person who cannot afford to get
>>>> the underlying documentation or get to the location to get the i.d.;
>>>> and (3) a person who has a physical impairment or religious objection
>>>> which prevents getting the i.d.
>>>> I would not include within this definition people (many, many people
>>>> in Pa., apparently), for whom getting the i.d. would be a big hassle,
>>>> and who may be deterred by this hassle.
>>>> 
>>>> While the numbers show that there are many people who currently lack
>>>> the i.d., it is actually very hard to find many actual people who (1)
>>>> lack the i.d., (2) cannot get the i.d. because of the reasons listed
>>>> above;
>>>> (3) cannot vote some other way without i.d. (such as an absentee
>>>> ballot for need in PA); but (4) want to vote in the election.  If
>>>> this is our universe of "disenfranchised" voters, it is clearly much
>>>> smaller than 1 million voters in PA.
>>>> 
>>>> If you count as disenfranchised those other voters for whom getting
>>>> the i.d. would be a big hassle, and who may deterred from voting by
>>>> this hassle, then the numbers are undoubtedly higher (and my sense is
>>>> that Democrats are much more concerned about this group than the much
>>>> smaller group of the people i would consider disenfranchised by a
>>>> voter id law).  But I don't count these voters are actually
>> disenfranchised.
>>>> To be clear, I don't support the idea of putting voters through this
>>>> hassle on the state level given the paltry evidence of the law's
>>>> supposed anti-fraud benefits.  But that's a different question from
>>>> the number of "disenfranchised" voters.
>>>> 
>>>> 
>>>> 
>>>> On 9/15/12 7:35 PM, Michael McDonald wrote:
>>>>> Not sure who the "we" is. The 1 million number is consistent with
>>>>> what was presented by plaintiff's expert witness, Matt Barreto. With
>>>>> approximately
>>>>> 9.5 million eligible voters in Pennsylvania, and if the survey
>>>>> evidence is correct that 10% do not have the forms of id required by
>>>>> the state, you
>>>> get
>>>>> a number of up to 1 million disenfranchised.
>>>>> 
>>>>> Perhaps what Rick means is that, well, the turnout rate among those
>>>>> individuals is exceedingly low, so they have already disenfranchised
>>>>> themselves by not registering and voting. This is what I find to be
>>>>> most pernicious about the district court's logic and weighing of the
>>>>> evidence, that it is acceptable to erect high barriers to voting
>>>>> among those with
>>>> low
>>>>> turnout rates because they already do not vote. The judge, for
>>>>> example, dismissed Barreto's survey because the sample frame was of
>>>>> eligible
>>>> voters,
>>>>> not registered voters.
>>>>> 
>>>>> ============
>>>>> Dr. Michael P. McDonald
>>>>> Associate Professor
>>>>> George Mason University
>>>>> 4400 University Drive - 3F4
>>>>> Fairfax, VA 22030-4444
>>>>> 
>>>>> 703-993-4191 (office)
>>>>> e-mail:  mmcdon at gmu.edu
>>>>> web:     http://elections.gmu.edu
>>>>> twitter: @ElectProject
>>>>> "Could Pennsylvania Voter ID Law Help Romney Win Race? Up to 1
>>>>> Million Voters Face Disenfranchisement"
>>>>> Posted on September 15, 2012 5:37 pm by Rick Hasen Here is a link to
>>>>> a Democracy Now! program.  I haven't had a chance to listen to the
>>>>> program but the 1 million disenfranchised voters seems quite high
>>>>> and not supported at all by what we know.
>>>>> 
>>>>> 
>>>>> _______________________________________________
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>>>>> Law-election at department-lists.uci.edu
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>> 
>> 
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> 
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
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> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
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