In the wake of the Supreme Court’s disgusting Shelby decision, Representatives Keith Ellison (D-Minn.) and Mark Pocan (D-Wisc.) have proposed a new Congressional Constitutional Amendment, which has been endorsed by the Democratic National Committee. The text of their proposed amendment:
Section 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.
Section 2. Congress shall have the power to enforce and implement this article by appropriate legislation.
Although many Americans don’t realize this (although I think most “Alas” readers do), the Constitution does not explicitly protect a right to vote.
There’s no chance of the Right to Vote Amendment (RIVA?) passing Congress (let alone two thirds of Congress) anytime soon, because virtually all elected Republicans oppose it.
In Slate, Jamelle Bouie argues that Democrats should fight for a constitutional right-to-vote amendment.
…the Constitution allows voter suppression as long as it doesn’t trip any of its race or gender wires.
The goal of a right-to-vote amendment is to change the dynamic and place the burden on restrictionists. In a sense, it would make the pre–Holder v. Shelby Voting Rights Act a standard for the entire country. States and localities would have to make voting as accessible as possible, with a high standard for new barriers.
And while the odds of winning a right-to-vote amendment are low—one reason Democrats should invest more effort in state elections—there’s tremendous value in mobilizing around the issue. A movement for a right-to-vote amendment could encourage laws and norms that expand participation irrespective of an amendment in that direction.
Scott Lemieux argues that such a Constitutional Amendment wouldn’t do much good:
The framers of the Fourteenth Amendment… thought that bad judges were a much bigger problem than textual lacunae, and there’s a great deal of truth in this. It’s very likely that the Roberts Court would uphold most contemporary vote-suppression laws even if a right-to-vote amendment was passed.
Moreover, in all likelihood these vote-suppression techniques already violate the existing text of the Constitution. A federal district judge, for example, found that Texas’ draconian voter ID law was racially discriminatory in both effect and purpose, and also functions as a poll tax. If these findings are accurate, the Texas law already violates the Fourteenth, Fifteenth, and Twenty-Fourth Amendments.
None of this is to deny that changes in textual language could matter at the margin. I can imagine certain judges, particularly moderate Democratic nominees, who would uphold voter ID requirements under the current constitution, but not under an amended one. However, the track record of textual protections for the right to vote is generally poor.
Derek Muller, a law professor at Pepperdine, raises some interesting issues, including:
1. Can felons and ex-felons convicted of election-related crimes be prohibited from voting? The proposed amendment would probably extend the right to vote to all felons imprisoned (currently disenfranchised in 48 states) and all those paroled, on probation, or ex-felons (currently disenfranchised to varying degrees in many states), extending the right to vote to five or six million new voters. […]
2. Could the state prevent the mentally handicapped from voting? Most states have some kind of rule preventing the mentally handicapped from voting. Once voting is deemed a “fundamental right,” will these laws, as they presently exist, stand? What kind of rewriting or retailoring would be necessary?
A couple of thoughts:
1) How infuriating is it that one of the two major parties will not support a Constitutional Right to Vote?
2) Even though the Amendment can’t pass in the immediate future – and that’s a shame, I’d love to see felon disenfranchisement ended – it is still worth fighting for, as a mobilization tool to help build support for state-level voting-rights laws.
While I do not have a problem with such an amendment, i don’t think it precludes Voter ID. The devil is in Section 2 of the Amendment. Congress could require Voter ID to implement it. Why? Well, Section 1 protects the right for: 1) every citizen; 2) of legal age; 3) to vote where they reside.
You want to vote? Prove 1-3. Section 2 could easily allow Voter ID.
Tangentially related, it appears that there are 6.5 Social Security numbers out there for people over the age of 112.
While I would bet such numbers are being used for benefits fraud or employment eligibility, I would not be the least bit surprised if some of those 6.5 million numbers have somehow been used to commit voter fraud.
-Jut
I don’t think the purpose of such an amendment would only be to prohibit voter ID laws, nor do I think “designed to prohibit voter ID laws” is a particularly good use of such an amendment. Besides, voter ID laws can be found illegal for all sorts of reasons, as this post discusses; and it’s possible to construct voter ID laws that wouldn’t result in widespread disenfranchisement of certain groups. (The current laws are not those laws.)
I’m sure some of them have. The question would be, have they been used for voter fraud that would have been prevented by the voter ID laws proposed recently in many conservative-leaning states? And I’m comfortable saying the answer is “effectively no”, since the vast, vast majority of voter fraud is either committed by absentee ballot or is mistaken voting by people who didn’t know they couldn’t vote (or couldn’t vote at that location), and neither of those get caught by recent voter ID laws. (One study that attempted to count this found 10 confirmed cases of in-person voter fraud from 2000-2012, for example, a period of time in which 475 million votes were cast in presidential elections alone.)
Jut, first, what Harlequin said. :-)
Second, it’s possible that there’s someone out there voting with the SS number of a dead 112 year old citizen. It’s a really big country.
But there have been a few cases of Republicans alleging that the dead were voting in large numbers, and therefore we need voter ID. When large-scale investigations are launched, they always find the same thing: clerical errors plus living voters with the same names as dead voters and no verified cases of fraudulent dead votes. Here’s one recent example: The case of ‘zombie’ voters in South Carolina.
If this is a real problem, why hasn’t anyone been able to document it yet? (I mean, with documentation that stands up to independent vetting.)
If this was a real problem, the solution isn’t voter ID, which as Harlequin points out can’t work on absentee ballots. To really prevent dead voters from voting involves spending money on effort to make the voter rolls more accurate, not useless voter ID laws.
Why on earth would Republicans want to increase voter turnout and participation? How would that benefit them?
Copyleft:
Why on earth would Democrats want to take steps to ensure the integrity of the voting process?
How would that benefit them?
-Jut
Even though it won’t pass, it seems like a reasonable way to start a national conversation on
1) who should be denied voting and who should be allowed;
2) How should we distinguish between then; and
3) How we should balance between “allow,” “enable,” “distinguish,” and “deter.”
It’s politicized, of course. Mostly based on trust. There’s a large political contingent of liberals who don’t seem to think that it’s all that bad if some illegal immigrants or felons, end up voting, or if people commit absentee ballot fraud, so long as there’s not too many of them. And there’s a large political contingent of conservatives who don’t seem to think it’s all that bad if some otherwise-eligible people are literally or functionally denied the opportunity to vote, so long as there’s not too many of them.
Neither side is doing much to consider the other side’s interests, so compromise is unlikely.
IOW, the only success is likely to come from
a liberal group who started out by acknowledging that illegal voting is bad and needs to be avoided, and who specifically discusses ways to prevent it as part of their proposal; or
a conservative group who starts out by acknowledging that voting suppression is bad and should be avoided, and who specifically discusses ways to prevent it as part of their proposal.
Good luck getting 3/4 of the States to ratify this – especially considering that it would enable Congress to invalidate their Voter ID and felon-disenfranchisement laws.
Editorial glitch:
Should that read “Constitutional Amendment”?
Feel free to delete this post.
G-i-W:
“a liberal group who started out by acknowledging that illegal voting is bad and needs to be avoided, and who specifically discusses ways to prevent it as part of their proposal;”
That would help. But there are a groups billing themselves as “progressive” who have publicly called for permitting both illegal and resident aliens to vote, granting illegal aliens a path to citizenship, etc., and that has caused tremendous mistrust among conservatives against giving any ground at all on this.
Yes, I know. There are also conservative groups who have called for measures that they claim are necessary but which seem mostly designed to prevent legal voting.
Neither of those groups are trustworthy. That was why I made that point.
g&w @7:
And, most (I believe because this is my position and I believe that my view is representative of the way everyone should think) proponents of Voter ID acknowledge that if the cost of an ID is prohibitive for a poor person, they should be subsidized in some way so as not to disenfranchise an eligible person.
-Jut
Harlequin @ 2 and Amp @ 3:
I did not mean to suggest that there are 6.5 Million voters using stolen SSNs. I used the word “tangentially” for a reason. Poorly kept voter rolls are part and parcel of the same incompetence that leaves you with 6.5 million SSNs that are likely being used fraudulently.
And, I am not suggesting that Voter ID is a panacea, but it is a good step to protect the integrity of the franchise.
And, you may say that there is no proof that the problem is widepread or that IDs would fix the problem.
But, the problem is really perception. If 10,000 votes were illegally cast for Obama in 2012, it sucks, but it was not outcome determinative. Likewise, if Romney had gotten 10,000 illegal votes, it suck, but, again, it was not outcome determinative.
But, if we are talking Bush and Gore in 2000, it makes a huge deal. It is precisely when elections are so very close that we need to have strong confidence that there is no foul play. Minnesota and Washington, I believe, have had very close Senate elections recently. Those are the cases where the perception of fairness is critical.
No one worries when there is a landslide.
-Jut
I think this would be good. I agree that it would not prohibit voter ID laws, but it would frame the discussion of access in a much more sensible way.
I also think it’s not likely to pass, but it’s not a bad plan.
yrs–
–Ben
Nobody commits voting fraud by voting twice in person. Just imagine trying to do it on a level sufficient to create a 1% shift in even a medium sized suburban election. There were some local issues in my area where only 3000 votes were cast. To affect a 1% change, you’d need to cast 30 fake ballots. That’s a logistical nightmare. Not only would you need 30 dead registered voters, you’d need enough personnel to vote 30 times without ever sending someone to the same place twice. And that’s assuming your personnel all prepared in advance by voting absentee, otherwise you’d need even more people and time to cover the additional legitimate votes.
And don’t get me started on the fraudulent arguments conservatives put forth in supporting it. Every election year in my state, conservatives take a particular report created during the voter registration process and try to characterize it as attempted voter fraud. It’s literally a report created to document and prevent voter suppression, but they’re dishonest enough to represent it as the opposite and their constituents are gullible enough to buy it.
The TLDR is that voter registration non profits could engage in voter suppression by “helping” people to register to vote, then throwing away the registration papers. The hopeful voter would go to the polls, and find themselves unregistered. So all registration forms must be turned over to the state, by law. But some of those forms aren’t valid- they’re incomplete, were filled out by people who meant to change an address but used the wrong form, they’re filled out by jackass college kids in the name of Seymour Butts, you get the idea. So the state requires the non profits to spend their time and money doing a preliminary sort. Then the state receives a box of proper forms, and an envelope marked to show that the contents are probably screwed up. The state does it’s own double check, and that’s the system.
And every election the conservatives get ahold of that damned envelope and claim that the non profits tried to file fraudulent voter registration forms. It’s disgraceful.
But again: if 10,000 votes were illegally cast, then all the available evidence says about 9,950 of those were cast in ways that voter ID would not catch. It is totally useless at fixing the problem of fraudulent/illegal votes (and, as we have previously discussed, does great harm).
And what’s more, when researchers attempted to study this, they found zero evidence that voter ID laws decrease the perception of fraud–perhaps because of the rhetoric used to justify those laws in the first place, which increases mentions of voter fraud. So even the weak justification that voter ID laws are useful because they increase voter confidence is not true.
I’d agree that 10,000 illegal votes per national election is a problem (even though it would be less than 0.1% illegal votes), but I’ve never seen any credible evidence that the rate of illegal votes was that high. Last time I went looking (after guessing that the rate was probably around 1,000 illegal votes per national election), the best estimate I could find was in the low hundreds (nationally). At 10,000 illegal votes, I’d be concerned that those illegal votes would be clustered somewhere where someone was running an election fraud scheme, rather than just a few random people making really bad decisions (which is what a few hundred people out of a few hundred million people looks like).
Wait, is the 10,000 illegal votes based off of this article in the Washington Post (actually, that article estimates 100,000’s of illegal votes)? If so, if that study were accurate, I’d agree that non-citizens voting is a problem, since it is illegal, although it is one best solved by (a) restoring the right to vote to non-citizen residents or (b) education programs (the article mentions that ID requirements are not effective in preventing non-citizens from voting). Also, the study has significant methodological problems and hinges on 12 participants in an opt-in survey.
As Harlequin says, of the few hundred fraudulent votes, only a few dozen are in-person vote fraud, so imposing ID requirements on 200 million people to try to catch a dozen criminals a year seems excessive (particularly since fake ID aren’t that hard to get for anyone truly committed to the idea of voting in-person illegally, and absentee ballots are easy to get for anyone generally committed to illegally voting). I’m in favor of improving efforts to signature check absentee ballots (anywhere where it isn’t already being done effectively), and I’d be in favor of improving interstate cooperation on identifying cross-state double voters (although this seems to be mostly a problem of voter error) except that I suspect the problems with false positives would swamp the few actual positives and I’d be concerned that the false positives would produce significant harm to individual innocent voters, while the true positives would produce a negligible benefit to everyone else.
Meanwhile, tens of thousands of people were wrongfully removed from the voting rolls in Florida in 2000 because their names resembled those of convicted felons, and those people were disproportionately Democrats. Florida still hadn’t fixed the problem four years later in 2004. Somehow, it just didn’t seem to be a priority to a Republican controlled state government.
To demonstrate the difficulty of attaining what you want, would the people here who are arguing against voter suppression like to try to suggest a way of doing this which maintains the “illegal voting is bad and this is how we will prevent it” part?
Because to the degree that people think illegal voting just isn’t (and won’t be!) a problem**; and that even if it was it wouldn’t really be a big deal; and that it wouldn’t have much of an effect; and besides, shouldn’t we just let people vote even if they’re not citizens; and if not, surely just educating them would work….
well, those are certainly valid views but they aren’t views which incline folks to trust the speaker with ensuring that people don’t vote illegally.
**This one gets really important to think about. The question isn’t only “how many people vote illegally,” it’s “how many more/less people will vote illegally AFTER the change.”
But…there’s nothing that would actually change with this amendment. Like, it provides a better way to challenge future discriminatory voting laws, but in itself it doesn’t do anything to the current system.
I’m not really sure what you mean when you separate “problem” and “big deal” here. To clarify my own position, at least, I think that illegal voting is, well, illegal and should be stopped if possible, but is so infrequent that the cost-benefit analysis means most ways of stopping it do more harm than good; the less true that is, the more of a big deal it is. There’s not a conceptual separation between “I don’t care much” and “it doesn’t happen very often”–those things are directly linked; my amount of caring is tied to the amount of illegal voting. Did you mean something else by this statement?
Well, so far in this thread, we’ve had me:
Amp:
and Charles:
I would need to do more research to figure out what steps are effective to reducing illegal voting: it’s never been a particular priority of mine.
G&W- what change? The “stop voter suppression” crowd is mostly a defense of the status quo, or the pre voter suppression status quo.
Actually identified vote fraud is mostly absentee ballot fraud or dual voting by people with multiple residences. The best way to deal with absentee ballot fraud is probably signature checking (as shown by the fact that it leads to arrests). This article in the Washington Post argues that same day registration is also a good preventative for any large scale absentee vote fraud (something that hasn’t happened, but is probably worth protecting against). For dual state voting, multi-state sharing and coordination of voting rolls is the main way to catch people engaged in this.
If that one dodgy study were supported by anything else and significant voting by non-citizens were demonstrated, then we’d need to find a solution to that. We should probably (a) demonstrate that it is actually a significant problem and (b) try education and enforcement of existing laws before going to more draconian solutions. Some form of national ID for citizens program would be a possibility for a draconian solution, but the problem it was created to deal with would need to be larger than the problems it would create.
There is no evidence that early voting increases vote fraud (there isn’t even an argument, as far as I know). Extensive early voting is a good way of increasing voting, but requires no counter-balancing anti-fraud measures beyond what already exists.
There is no evidence that vote-by-mail increases vote fraud (indeed, it is guaranteed to end the already exceptionally rare in person vote fraud). Obviously, it requires beefed up security around signature checking, outreach for reporting vote tampering, etc. I’m in favor of those improvements.
There is no evidence I’m aware of that same day registration increases vote fraud (although one can imagine that it might). Indeed, the article I linked at the top argues that same day registration decreases the opportunity for fraud by increasing voter-registrar contact and providing an excellent opportunity for voters to update and correct their registration information.
Investigation in Ohio by a Republican AG turns up 27 non-citizen voters and 145 non-citizen registered to vote. The illegal voters were referred for prosecution, the incorrectly registered were sent letters asking them to please de-register (education).
“The 145 represent about 0.002 percent of the 7.7 million registered voters in Ohio.”
As Charles says, even if those 27 people committed voter fraud, that doesn’t mean there’s a significant voter fraud problem in Ohio. (If 25 muggings happened in a year in Ohio, we would say that each of those 25 muggings were serious crimes, but we wouldn’t say that Ohio has a significant mugging problem.)
However, it’s important to realize that the 27 have only been accused of illegally voting. So far, the only evidence of illegal voting is that two lists – the list of non-citizens with drivers licenses, and the list of people who voted in Ohio – overlap on those 27 names. That’s not enough to say that illegal voting definitely occurred in those 27 cases, because in the past these overlaps often turn out to be clerical errors, or to be separate people who happen to share a name and birthdate.
Also from the article Charles links:
I don’t know if Clyde’s allegations are true or not. But if she’s right, then thousands of legitimate ballots being thrown out would be a more significant problem than 27 people being accused of voter fraud.
Not the most unbiased source, but I assume this is accurate:
“In the 2012 Ohio presidential election, 34,322 provisional ballots went uncounted – 28 percent of them because people were in the wrong precinct. Historically, if a voter was in the wrong precinct, you simply wouldn’t count the incredibly rare precinct vote normally one voting an area dry. Not even “Precinct Captains” who work for political parties are voted for at a precinct level. They are appointed by the party central committee ward representatives.”
[I can’t comment on whether or not Husted has a soul.]
Also, this may be what Rep. Clyde was specifically referring to, in terms of illegal discarding of provisional ballots, rather than just immoral but legal discarding of ballots.
Also, you are right that I shouldn’t be so credulous as to assume that name matches actually mean person matches, although I assume they are matching on more than just name or they’d get more matches. On the other hand, it is certainly likely that there are at least a few cases where citizen Sonya Perez is living at the same address as her mother Sonya Perez (or where citizen John Smith is living at the same address where non-citizen John Smith just moved out), so name + address still wouldn’t inspire confidence in a zero false positive rate.
The fact that the AG doesn’t know the status of the 17 suspected illegal votes in the previous election does seem suspicious that he knows better than to follow up on them and find out how many were false positives.