Interview: The laws that keep poor people of color from voting in the US

June 12, 2016

Why participating in the 2016 election will be easier for some would-be voters than others.


Many states in the United States make voting harder than it has to be. Atiba Ellis conducts research on voting rights law, particularly the exclusion of voters on the margins. He explains why some policies—like requiring certain types of ID and banning those with criminal backgrounds from the polls—unnecessarily exclude poor citizens in general, and poor minorities in particular.

By Atiba R. Ellis

The world has been focused on the 2016 election in the United States. While the election contest between Donald Trump and Hillary Clinton has generated significant interest, attention has once again come on the question of whether all Americans can equally participate in the voting process. Many worry that voting rules unnecessarily exclude the poor, and in particular poor African Americans and Latino Americans. Some see the recent rules concerning voter identification and old rules regarding felon disenfranchisement as ways of effectively keeping poor citizens of color from voting.

They claim these rules, though they are not discriminatory on their face, put the ability to participate in the political process beyond the reach of poor Blacks and Latinos. Such exclusion is often referred to as voter suppression, and the concern is that voters who otherwise ought to be able to vote cannot, and thus the electorate is not representative, and in extreme cases, election results end up being skewed.

To understand this, it is important to know first that individual states run elections in the United States. Moreover, unlike other countries that provide for automatic voter registration, readily available identification cards, or public holidays to encourage voting, every state in the US requires a citizen register with the state in order to vote, and that Election Day takes place during a work day. Political science research has shown that these facts make voting in the United States difficult.

Yet some states make voting even more difficult. To register, a citizen must prove their identity, their residency, and in some states, their status as a citizen before they can vote. A number of states have made these registration requirements more onerous by limiting the types of identification documents that support voter registration. Also, over half of the states require a state-issued photographic identification card to prove a voter’s identity. Over a dozen states make such photo-id requirements the near exclusive way of proving voter eligibility. These states (which are mostly in the control of the Republican Party) have justified these laws on claims of needing to protect the electoral process from the threat of fraud due to voters impersonating other registered voters. Yet, research has shown that such voter fraud doesn’t exist.

“Obtaining the supporting documents can be too expensive for poor voters.”

Opponents of these “photo-id laws” worry that these rules disproportionately make it more difficult for poor minority voters to participate in the franchise. Political science research suggests that these rules form a strong disincentive to political participation for those who are socioeconomically disadvantaged. As I have argued in my own research, obtaining the supporting documents can be too expensive for poor voters.

An individual must prove they are entitled to an identification card. To do so, they must they must obtain (at their own expense) a certified copy of their birth certificate, their marriage license, and all other relevant documents necessary to prove their legal identity and their citizenship. States are under no obligation to issue these documents for free. Additionally, most persons must take time away from work (with the lost wages that come with time off) to obtain their identification card from an issuing agency (usually the agency that issues driving licenses).

The poorest Blacks and Latinos live in largely segregated communities in rural parts of the United States due to the ramifications of racial segregation policies of the nineteenth and twentieth centuries. Governmental services in these areas are sparse compared to those in more affluent areas. For the poor areas, the closest identity issuing agency is often quite distant from their homes. This requires added expense just to get to the office since many of these citizens do not have an automobile or other ready access to transportation. And to compound all these other difficulties, the issuing agencies in the poorest areas of the country are often only open two to three times a week (to minimize governmental costs), creating additional timing costs for obtaining even the most basic government-issued identity card.

While precise numbers as to how many are affected by these laws are difficult to obtain, the Brennan Center for Justice has stated that these stringent voter identification requirements will disenfranchise thousands, including low-income citizens, the elderly, and especially minorities. Indeed, according to recent US Census figures, over 21 million citizens do not possess appropriate government-issued photo ID, and most of these people are racial minorities. Because of this, opponents of these photo-id laws claim that they are racially discriminatory.

“The Sentencing Project estimates that 5.8 million Americans are barred from participating in elections due to having a felony conviction.”

Additionally, 48 of the 50 states continue to enforce some form of felon disenfranchisement laws. While these laws vary, the rules disqualify otherwise eligible voters due to having been convicted of a crime. The rules are ancient in origin, and were used in the nineteenth century in the Jim Crow south to shut out African American voters. And yet they continue today.

Many US states require ex-felons who are free from punishment to nonetheless go through a detailed and difficult process of restoring their voting. The Sentencing Project estimates that 5.8 million Americans are barred from participating in elections due to having a felony conviction. And nearly 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws. This ratio rises to one in five African American bared by felon disenfranchisement laws in Florida, Kentucky, and Virginia.

The cumulative effect of these two policies is that a political underclass continues to exist in the United States. These policies affect the poor generally, but their particular impact on poor people of color further marginalizes an already historically marginalized political community, and it is an affront to the civil rights movement that sought to make good on the promise of political equality for all citizens.

While the solution necessarily must vary from state to state—not all states have the strictest rules described here—the ultimate solution to this problem of voter suppression is to elect governmental officials who will seek to make elections more inclusive. Politicians in a handful of states have already sought to take steps to either eliminate the effects of felon disenfranchisement laws or to promote automatic voter registration processes to limit the effects of photo identification laws.

“More steps can and should be taken.”

But more steps can and should be taken. Congress should restore Section 5 of the Voting Rights Act, which allowed the federal government to insure that states with a history of racial discrimination in voting could not repeat their discriminatory practices. State legislators should change the rules of registration to provide voters more options for registering and voting than the strict photo identification requirements. And legislators and the public should consider felon disenfranchisement laws a relic of a discriminatory past that ought to be abolished in their entirety.

But none of this can happen unless and until voters make the ending of voter suppression a priority for their elected officials. Though individual lawsuits under current anti-discrimination law can sometimes address the problem, only a long-term movement that forces politicians to be accountable for making elections accessible to all voters will end the problem of voter suppression.

A democracy is fair only if all free citizens can participate.

Abita R. Ellis is a professor of law at West Virginia University. His research was cited and quoted in a recent opinion by the Iowa State Supreme Court discussing felon disenfranchisement laws.

Featured image courtesy of the IIP Photo Archive.

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