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U.S. Department of State

Diplomacy in Action

Voting Rights in the United States

Wendy R. Weiser, Director, The Brennan Center for Justice Democracy Program; Lawrence Norden, Deputy Director, The Brennan Center for Justice Democracy Program
New York, NY
October 1, 2012

State Dept Image/Oct 01, 2012/New York, NY
Date: 10/01/2012 Location: New York, NY Description: Wendy R. Weisner and Lawrence Norden, The Brennan Center for Justice Democracy Program, brief at the New York Foreign Press Center on ''Voting Rights in the U.S.'' - State Dept Image

12:30 P.M., EDT


MODERATOR: Today we are back on our election coverage and we are joined by Wendy Weiser and Larry Norden who are respectively the Director and Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University’s law school, and they are here to talk to us today about U.S. voting rights.

I want to remind everybody that the views expressed by our briefers do not represent the views of the U.S. Government. We’ll have Wendy and Larry start, and when they finish opening remarks, we’ll move to questions.

MS. WEISER: Thank you very much and thank you all here for joining us. We are – for those of you who are not familiar with the Brennan Center, we are a nonpartisan public interest law center and think tank associated with NYU’s school of law. We work on fundamental issues of democracy and justice, and among other issues, we’ve been focusing on voting rights and legal changes that we’ve seen across the country relating to voting rights, and it’s one of our big project areas.

So I’m happy to answer more questions about our work, but today we’re going to talk a little bit about what the battle over voting rights has been over the past two years in the lead-up to the 2012 election, and some of what to expect in the coming weeks on the voting rights front.

I wanted to start by giving a little a bit of a background on the U.S. system or on some of the key features that will help explain some of these battles, some distinct features. First, the United States, unlike the election systems in many of your countries, has a highly decentralized system of election administration. We don’t have a national election administration body or, for the most part. The rules of how we vote aren’t set at the national level. They are set largely at the state level by 50 state legislatures, and they are administered in more than 4,600 separate election jurisdictions which are at the county and local levels within the state. So we have a very diverse and decentralized election administration system.

The rules of election administration are creatures largely of state law. There are a few federal laws, and a few constitutional requirements that set – lay some baseline groundwork, but it is a state-by-state system and some of these battles that you’re hearing are all happening in the states on what the rules are going to be in those states.

For the most part, our election administrators are not elected as they are in many countries around the world, aren’t selected in a nonpartisan process. They don’t go through a professional election administrator training. They are actually either elected or appointed usually in partisan processes at the state level, often at the state-wide level, and it is often a position that is a state-wide position that might be the – somebody who’s seeking higher political office, potentially a governorship or a congressional office. So those are who runs the elections in the United States, though they are bound by and typically do run the elections in a neutral way, in a nonpartisan way, they are selected and run and often function as partisans as well.

A few other features, our voter registration system, unlike that in the rest of the world, is self-initiated by voters. That’s another thing that’s important. Voters have to sign themselves up on the list as a – and it’s through a often quite antiquated paper-based system, and so the United States has a extraordinarily low voter registration rates compared to our counterparts around the world. We typically have around 50 million eligible citizens who are not registered at any given time. The registration rates typically are about 70 to 75 percent in presidential election years, and that’s in contrast to other states where the government takes responsibility for building the lists that you – in other democracies, you get lists up to 90 or 95 percent registration.

And the last decentralized feature about the system that’s worth noting as a background is the United States does not have a national ID card, so there is no one piece of documentation, no citizenship card that everybody has. That, too, is decentralized. Lots of people have lots of different IDs and IDs with photos on it, but it depends on the state that they’re in and their circumstances. People have IDs to vote, they might have IDs as a feature of their military service, and many people don’t have any IDs at all, which we’ll talk about later.

So that’s a little backdrop about how the system works. And another backdrop about the right to vote in the United States, it has been contested from the founding of the United States, but it is – a history of United States is one of increasing access to the franchise. The United States started off with a white male property ownership. Universal suffrage has, over time, dropped the property ownership qualifications after the Civil War, got universal male suffrage for it as part of the Civil War amendments after slavery was abolished. And eventually women, 18 year olds were also added. These are all now enshrined in the United States Constitution. There are all these grounds that the right to vote cannot be denied on the basis of. There is actually interestingly no affirmative right to vote articulated in the Constitution, though the Constitution does protect the right to vote indirectly in the United States.

There are a number of federal laws also that is useful to know, that do protect the franchise. The most significant one that we’ll tell you about is called the Voting Rights Act of 1965. That was passed in the Civil Rights era, and that’s been in play a lot this year, and that is – was responsible for dismantling the Jim Crow-era laws that had kept African Americans from voting, despite the fact that in – after the Civil War, they were formally granted the franchise. So for about a century, they were not actually given access to the franchise as a result of state laws that were imposing hurdles on the ballot.

And the last background fact by way of introduction to this topic is since the election of 2000 in the United States we’ve seen an increasing politicization of the rules of election administration. In 2000 there was a highly close election that many of you will remember between George W. Bush and Al Gore that was decided ultimately in Florida by 537 votes, and the country, at that time, looked very closely for the first time at the rules of election administration because it was highly contested.

You might have remembered the hanging chads and the butterfly ballots and a whole bunch of administrative errors that were – large-scale purges of the voter rolls, removing supposedly ineligible people from the voter rolls that swept ineligible people. People looked and discovered just a host of problems. The system was really a mess, and it actually had room, also, for partisan manipulation. It led to a lot of mistrust and it led to some positive reforms as well. But one of the negative legacies of that is I think it taught the country that the rules of election administration can be – can really make a difference in election outcomes, and it opened the door to increase politicization of those rules, and that’s going to come into play a lot.

This year, we really saw that movement towards politicizing the rules of how we vote, who gets to vote, and what they do to vote, really went into overdrive this year, and so we’re going to start by telling you a little bit about that.

MR. NORDON: Thanks, Wendy. Can we get the first slide? Good afternoon, everybody. So this is a map of restrictive voting legislation introduced in the United States in the past legislative session since 2011. As you can see, almost every state in the union had new restrictions on voting introduced by legislation – 41 states, in fact. There are different kinds of restrictions that we’ve identified in this map.

If we could go to the second slide.

Obviously, not everything that’s introduced is passed. This map shows the 19 states where introduced legislation actually became law introducing new restrictions on the franchise in the United States. And this can be broken down into about five or six categories.

The first type of new restriction that we’ve seen in large number in this last legislative session is probably the most well-publicized one. It’s the requirement for – to produce a certain kind of ID when a person votes. And the discussion – I think, unfortunately, the discussion of this kind of law in the United States has become a little bit muddled. The real controversy around these laws is the extremely rigid and restrictive ID laws that say if a person doesn’t produce a certain government-issued photo ID, a certain kind of government-issued photo ID, their vote’s not going to count, period; there’s nothing else they can do to get their vote counted, except produce this kind of ID. There are lots of states in the United States that require or request all kinds of IDs.

The reason that these particular laws – and there were eight new laws passed this year with this requirement – are so controversial is, basically as Wendy mentioned, we don’t have a national ID in the United States. They picked the IDs that people could use. They were usually a driver’s license and maybe one or two or three other kinds of IDs that people could use to vote. Obviously in dense urban areas and in some very rural areas, there are a lot of people who don’t have IDs. So even people who have been voting all their lives – let’s say with a veteran’s card or something like that – suddenly they won’t be able to use that when they go to vote in these states.

In addition to the ID laws, there have been restrictions on registration. Wendy mentioned that in the U.S. it is the citizen that needs to initiate the registration; the state does not keep a list of citizens for voting purposes and doesn’t – when somebody moves, their registration is not updated. And these laws made it more difficult for people to register in a number of ways, maybe by requiring proof of citizenship before allowing somebody to register, sometimes by making it extremely difficult for independent groups that register people, like the League of Women Voters, which is a very big organization in the U.S. that has traditionally done registration drives, making it very difficult for them. In fact, there was a law that was passed in Florida. The League of Women Voters and many other registration groups said this is so onerous, we’re just shutting down our registration drives while that law was in effect.

And other restrictions, like making it more difficult for people – putting stricter deadlines on when people could register. There are some states that had previously allowed people to register at the polls and vote that same day, and we had a couple of states try to eliminate that kind of what we call same-day registration.

Two other categories of new restrictions that were introduced in the U.S. that are pretty important. One is there were two states that made it much more difficult for people who have had felony convictions, that have now served their time, to get their voting rights back. And finally, this has been extremely controversy – controversial, particularly in Florida, there were two states, Ohio and Florida, where early voting was substantially cut back under the law. And in particular weekend early voting was a point of controversy, because weekend early voting was used heavily both in Ohio and Florida in 2008. And there are a number of studies that show black and Hispanic voters in particular use those days to vote.

Do you want to go ahead and talk about what happened after these laws were passed?

MS. WEISER: Yeah. This movement has been very controversial. There was a fairly large outcry in response to it. A lot of these laws do disproportionately impact – if they are allowed to go into effect – specific demographics in the U.S. on population. They would fall most harshly on voters with lower incomes, minority voters, older voters, including many older veterans and students. And this is true across most of these new restrictions. And so that prompted a lot of outcry that they were politically motivated, but also that they would actually be especially harmful for certain communities of Americans who typically actually face the most hurdles to access to the polls.

And I – before we announce the dismantling of democratic participation, there’s good news on the next slide, which is there’s been a significant pushback to this effort, and that’s really the news of this fall. And in many places, as it turns out, the system has checks. We do have perhaps politicians who actually create the rules of the – who create the laws potentially to benefit themselves or their own parties, but when they go too far the system has significant checks, and they’ve been really working also in overdrive this year against this push against voters.

And so I’ll start with the courts. That’s been one of the most significant checks. Many citizens have gone to court challenging these new restrictions because they will exclude many voters if they were allowed to go into effect. And I will talk about some of the court cases. We just heard a law in Florida, for example, that had shut down citizen-based voter registration drives across the state. The impact of that had – was actually really enormous. There was a study that was done by the Florida Times-Union that found that in – from July to July leading up to the 2008 election, 355,000 people had registered to vote in the state of Florida, and from that same time period, July to July while this law was in effect in the lead-up to this election, only 135,000 people had registered to vote, so more than 200,000-people difference. So these are very significant, the impact of that.

And the League of Women Voters of Florida and Rock the Vote and Florida PIRG went to court. The Brennan Center represented them, among others, and a court actually blocked that law, said that this was actually – violates the First Amendment to the U.S. Constitution, this violates the principles of free speech and political participation and free association. And so that is now permanently blocked. Those restrictions will not be in effect in this election.

There were photo ID laws that we just mentioned. Some of the new highly restrictive photo ID laws have been blocked by courts in Wisconsin, for example. Two separate state courts blocked that state’s photo ID law. The supreme court of that state has just announced this past week that it will not be reviewing those decisions, at least before the election. And so that law will not be in effect for the 2012 election.

In Arizona, a federal court sitting en banc on the – a large panel of appeals court judges blocked a law that would have required citizens to show proof – documentary proof of citizenship in order to register to vote. We have actually liberalized voter registration requirements in part because they’ve been such a barrier to political participation so that people typically do register by mail, and most – at least 7 percent of Americans do not have documentary proof of citizenship, and so that law was actually blocked as inconsistent with the Federal Motor Voter law by a court of appeals in Arizona.

So these are just some of the cases. Overall, almost every single court – new restrictive law that’s been considered by a court has been blocked by that court. I mean, it’s been a real tremendous pushback in the courts. There were, I think, eight courts in six states that have blocked laws.

I’m going to tell you about another category that has blocked. Another source of this pushback on one of the checks is actually the Department of Justice. I mentioned the Voting Rights Act of 1965 as a very important piece of civil rights legislation in the United States. That law has a unique feature that states that have a history of discriminating on the basis of race in their elections and in voting actually have to get approval before making voting changes either from the Department of Justice or from a federal court. There is a presumption that they have to overcome, and they have to demonstrate that the laws won’t discriminate against minorities.

And there were three states that went to the Department of Justice to get approval of their new laws, and each case the Department of Justice did not approve those, and then they went to court. Those states are – and the court has – in two of those states have already supported that decision and didn’t approve those as well. That’s Texas, which passed a restrictive – one of the restrictive photo ID laws. And Florida, they – there were a number of new changes in Florida’s new law that were – went before the Department of Justice and the court, but the court ruled on its effort to cut back on early voting days. So the Department of Justice has been a real bulwark here, and it has been defending those decisions in court. There’s one decision that we’re awaiting in South Carolina.

Another source of the pushback has been citizens themselves. There are some states where citizens can actually challenge legislation or legislation like this by putting it on – putting it to the ballot. In Maine, the legislators had repealed the very highly popular 40 year-old election day registration regime in that state, which was responsible in part for that state’s much higher voter participation rates than other states across the country. And voters vetoed that. They put it on a ballot initiative, and they – and in November, they actually voted that law out, and so that restriction is not in place.

In Ohio, there was a similar effort. Ohio had a very big law that was passed that would have made a whole number of changes that we didn’t discuss already that would have made it harder for people to vote. That law was the subject of an effort – an organized effort to repeal by ballot initiative. There were several hundred thousand signatures that were obtained to get this approved to go on the ballot for November 2012, and there was such an outcry that the legislators themselves repealed that law rather than see it go to the vote – voters for a vote. So that law will not be in effect. Unfortunately, there are some restrictions in Ohio that did remain in a separate law. They had cut back on early voting. That was blocked recently by a court.

So we are seeing a real – and then I just want to say the last area of pushback where we’ve seen is the media and a – the media just by calling attention to what’s been going on. And reporting on this has helped make people aware and make people get involved and make people – many Americans have been calling for – stepping up and calling for restoration of their voting rights. And we’ve seen that that’s also led to legislators and governors across the country also to reject the legislation, and that’s some of the – you can see some of the laws were actually vetoed, including recent last-minute attempts this summer to pass new voting restrictions.

Some really notable ones were a veto in Michigan by a Republican governor blocking a law that would have cut back on voter registration drives. And in Virginia, another Republican governor actually sent back a voter ID law because it was too harsh and restrictive, and it was actually tempered by the legislature before it passed. And so that is some of the pushback we’ve seen, and I want to just switch to the last slide.

So this is where there are going to be laws still in place for the 2012 election, and some of these – and as you see, they’re in two different colors. The red are the ones that are the more restrictive laws, and the pink ones are the laws that have either already been tempered by court decisions or that weren’t as restrictive to begin with. And some of these are actually – might be subject to change, and in particular Pennsylvania is one of the red states, and we’re awaiting a decision today from that state as to whether or not the harsh voter ID law for that state passed will be in effect.

So as you see, the big map with a lot of states that passed when you go into 2012, many of these have been now blocked by courts, citizens, governors, or other efforts. I will add that there’s a few that have a – or at least one that has an effective date for after this election so that it’s not blocked. It’s not on here, but we’ll see this going forward.

MR. NORDEN: So the main – I think the main takeaway from the past few months for us, Wendy and I wrote a report – when was that –

MS. WEISER: October of 2011.

MR. NORDEN: October of 2011 with – we were kind of at the height of the passage of these restrictions. The last few months have really seen a pushback – a successful pushback against them. So we’re not – the electoral landscape, although I think it’s going to be more difficult for some people in the U.S. to vote than it was four years ago, is not nearly as bad as we might have thought just a few months ago. We’re not – it’s kind of amazing we’re only a month away from the presidential election, and people are already voting. But not all of these issues have been resolved. So I think we’re going to have a decision today from a court in Pennsylvania on whether or not the new ID law that they passed will be in effect.

We also have continuing court battles in Ohio over early voting and whether or not people will be able to vote the last weekends before the election, on how certain ballots in Ohio should be counted. There are two separate cases in Ohio, and we still don’t know whether or not the South Carolina ID law will be in effect this November, and we’re expecting to hear from a federal court on that shortly. And of course, as Wendy mentioned, some of these battles are going to continue on after the election. So we’re really talking about – and that last map that she showed was what’s going to be in effect this November, but this is unfortunately an ongoing – we’ve seen probably an ongoing battle in the U.S. over voting rights, and not least of which is the battle over the Voting Rights Act itself. Wendy mentioned that that was probably the most important single piece of federal legislation related to voting rights, and there are many who would like to see that law – at least certain parts of it – overturned, and we expect that there’s a good chance that that’s something that the Supreme Court might hear in the next year.

I just want to briefly mention some – while the battle over voting laws for this November has largely wrapped up, that doesn’t mean that there aren’t things that we’re going to be watching for and that we are concerned about coming into Election Day. First and foremost, we’re concerned about voters and poll workers being confused about what the law is in their state and county. There has been a lot of publicity about this in the U.S., and the story has changed very quickly, and the truth of the matter is that most people aren’t paying as close attention to it as we are at the Brennan Center. So you can get poll workers confused about what rules they’re supposed to be enforcing, and you certainly can have voters confused about when they can vote, about what they need to bring with them when they vote. And so I think for us, voter and poll worker education is going to be very important over the next month.

A few other issues that we’re looking for – some of you may have heard about what are known as challengers. There are some independent groups that have said that they are going to come to the polls and challenge the right of certain people to vote. That is something that is allowed in certain states in the United States, and while every state’s rules are different, most – the vast majority of people will be able to vote even when they’re challenged, but we are concerned that this could be intimidating to voters and can create problems at the polls, frankly. Election Day especially, there are long lines in many places, and having independent citizens acting in this kind of capacity can sometimes create problems.

A couple of other things. We have seen in past elections purges of the voter rolls. This is removing people from the voter rolls on the theory that they’re not supposed to be there. We clean our rolls all the time in the United States to make sure that they’re accurate. But we have seen people taken off – legitimate voters taken off by mistake recently, and we’re certainly – are hoping that we won’t see any of that in large numbers, but it’s always a concern prior to Election Day.

Finally, a couple of things. As we mentioned, in some places like Ohio and Florida there’s going to be a reduction in early voting days. In Ohio in 2004, there were very long lines on Election Day, and that – in fact, that prompted a lot of states to move to greater early voting, because some people weren’t able to vote because the lines were so long. At the same time, many states like Ohio and Florida, because early voting was so successful, have reduced the number of polling places that they have. So now in states like Ohio and Florida, we have fewer polling places, but also fewer voting days. So that’s a concern and certainly something that we’re going to be watching out for, whether or not this is going to lead to longer lines on Election Day and in those states in particular.

And finally, Wendy started off this talk talking about the butterfly ballots and hanging chads in Florida. Ballot design is still a big issue in the United States. We do have 4,600 separate election jurisdictions in the United States, and each one of them designs their own ballot. And unfortunately, these ballots can be very complicated. They can have dozens of contests on them, and we have seen, even since 2000, pretty much in every federal election, some problem somewhere with ballot design that has caused problems in the election. So that’s also something that we’re concerned about looking forward to the election.

MODERATOR: Okay. So with that, we will open the floor to questions. Please make sure to wait for the microphone before you ask your question, and please state your name and media organization.

QUESTION: Hi, Paul Toohey, News Limited, Australia. Can you just explain how you get on a voter roll – what I’d call an electoral roll – in the first place, please?

MS. WEISER: For most people, what they do is they fill out a form, a voter registration application form, and they hand it in to state officials. They often do it at their driver’s license bureau because under federal law, the driver’s license bureaus are required to make available those forms. There are other agencies that are required to accept them. Or they mail them in to their election officials, to their county election officials, or they can have an individual assist them to fill out the form and take the form and submit it on their behalf.

So that’s – but it all starts with a – and for the most part, a paper form that the individual – application that the individual submits.

QUESTION: Is ID required at that stage?

MS. WEISER: No. There is no ID required, but what is required at that stage is that the individual put a unique identifying number. So they either have to put their driver’s license number on the document or the last four digits of their Social Security number. And when the state then processes that application, they are required to run a match on – either against the driver’s license record or the Social Security records to see that this person actually exists as a real person with that correct number. And if they don’t have the match, then the individual is required before they vote for the first time to provide some form of ID. But if there is a match, there’s nothing – you don’t have to hand anything physically to the election officials upon registration. The number is the process.

QUESTION: I’m with People’s Daily of China. I’m wondering the – who are the forces behind the more restricted voting registration, and who are for the pushback? And which party will suffer if there was no pushback for the restrictive registration?

MR. NORDEN: So as a general matter, this past election cycle, almost all of the restrictive voting laws were introduced and passed by Republican legislators and signed into law by Republican governors. It was almost without fail. There was a fairly stark party line divide on these laws, especially the voter ID issue but not only on the voter ID issue. It has been – Democrats have been almost universally opposed and Republicans have been – legislators in the states have been almost universally for that.

Again, there’s been shift, though, in momentum. As I’ve mentioned, there have been – Republican governors have started rejecting laws that have been proposed more recently. And there have been – so it hasn’t been – we’re now seeing some people from both political parties across the country pushing back against these efforts. But it has been a complete party line split, and we don’t know what the impact will be. But the assumption by the political parties are that this will benefit the – those who are most likely to be excluded by these new voting hurdles tend to lean more Democratic in their voting. And so that – the assumption is that this will benefit Republicans and not Democrats. That is – and that’s been one of the legislators – the house majority leader in Pennsylvania, for example, has claimed that in his state they passed voter ID to enable Romney to win that state. So there is certainly that belief among at least some of those involved that it will have a partisan impact.

But again, it is – but it is not an exclusive partisan impact. The people who would be excluded are from all political parties and –

MR. NORDEN: One thing I would add is that this partisan divide over these issues – that is – there is such a stark difference is a relatively recent thing. And if you look at, for instance, in Maine where the legislature overturned this same-day registration that they had – Election Day registration, that was passed by an all-Republican state legislature. It was repealed by an all-Republican state legislature. And early voting has expanded under many Republican legislatures, but this year we saw Republican legislatures pulling back on early voting and restricting the number of days for early voting.

So it really is, as Wendy mentioned, to a large extent a post-2000 phenomena that these – the rules of elections themselves have become part of the partisan game between the parties.

MODERATOR: We’re going to take a question in D.C., and then we’ll come back to New York. Sir, you can ask your question in Washington.

QUESTION: Hi, my name is Andrei Sitov. I’m with the Russian News Agency ITAR-TASS here in D.C. Thank you for doing the briefing, thanks for the FPC for inviting me, us both in New York and in D.C.

I wanted to ask about the voting fraud issue, because obviously, the people who impose all those new restrictions argue that they are looking to ensure that the people who vote actually have the right to vote. You have described what is required for a person to register. What is required for a person to actually vote? What do I need? Suppose I am a foreign citizen, I’m not an American; I show up at – and I happen to know somebody’s Social Security number. What – can I vote? What do I need to show that will allow the officials there to see that I am not supposed to be doing this?

So basically, my questions are: How widespread is fraud? What specific types of fraud exist to the best of your knowledge? And also I noticed today that as you describe, this issue seems to be polarized, politicized along party lines. But it seems like in Florida they now have allegations of fraud against the Republicans. A group there was registering, doing something illegal. I’m not sure I understand what they were doing. If you could explain that, that would be helpful. Thank you.

MS. WEISER: Sure. Why don’t I take fraud, and you can take the ID? That way we can – or I’ll take them both.

So thank you very much for that question. I’ll start with the – on the fraud issue, the United States actually has remarkably fraud-free elections. I mean, there are a lot of laws in place and there are very, very few scandals of election fraud in history. There is some – there has been some fraud over time; it is of – but not the kind of fraud that are targeted by these kinds of laws that we’ve been talking about. So the restrictive voter ID laws, for example, are trying to target a certain kind of fraud – impersonation fraud that you were alluding to of somebody showing up at the polls and pretending to be another person. That, as it turns out, is so extraordinarily rare that an American is more likely to get struck by lightning than to be found to have committed that kind of fraud. It is a fraction of a – I mean, a small thousandth of a percent of the votes cast are cast in that way.

It is – there have been lots of commissions and investigations to try to identify this kind of fraud. There are ways to catch it, and they’ve all come up empty-handed. The Department of Justice, actually from 2002 to 2007, had a five-year priority program to actually look for and prosecute this kind of voter fraud. They – to any kind of voter fraud, actually, but in terms of this kind of voter fraud, they came up with zero cases. They came up with 86 cases over a – that period of other kinds of fraud. Most of those – and I will tell you what other kinds of fraud do exist – they’re also extraordinarily rare, but they are voter registration fraud, and that’s what you just heard about happening in Florida.

There was a group that was allegedly – we have not investigated this one; I’m just telling you what the reporting is – is that there was a group that was hired by the Republicans to register voters. That group was supposedly found to have submitted false voter registrations, voter registrations in fake names. People often joke about Mickey Mouse being registered to vote. Those get caught because there’s a system to check those registrations, and they were found to have submitted, I think, more than a hundred of them. And they were caught and that is – and that gets prosecuted, it is against the law, it is voter registration fraud, is prosecuted in the same way that voter fraud is. And it has never led to – and nobody’s ever found a case of voter registration fraud that’s ever led to an actual voter fraud, a person voting improperly.

The few other kinds of fraud that happen – absentee ballot fraud has been a problem especially in some local elections. That’s where people are, for example, stealing absentee ballots from nursing homes and submitting – and voting in the names of those people. That is something that has happened and it has – in some local elections has made a difference over the course of U.S. history. Vote-buying is another issue that has been found to happen where people are – actually sell their vote, and especially if you have an absentee ballot, the --

MR. NORDEN: That’s for the vote-by-mail, otherwise it’s --

MS. WEISER: Yeah. That is a form of the absentee ballot fraud that has happened, where people sell their vote and show the vote, that they voted correctly on an absentee ballot and get paid for that. So those are the kinds of fraud that have happened. Again, all of those are very rare because there are a fair number of protections in place in the U.S. system against fraud. It is reasonably easy to get caught. And especially with the impersonation fraud, which is what a lot of the talk has been about, that somehow ineligible people are going to be going in droves to vote, that’s – there have been some concerns that have been drummed up that are – that don’t pan out.

In fact, that is something that would be an incredibly ineffective way to try to make a difference in an outcome in an election. It’s very easy to get caught. You need to have thousands of people helping you in order to get enough votes to make a difference. And the fines are just tremendous, and you can face five years in prison as well. So this is not something that happens in U.S. elections.

MR. NORDEN: On the ID question, as with so many things in American elections, it’s not an easy question to answer, because as Wendy mentioned, we are so decentralized. We don’t have a national ID, so there’s no – it’s not as if a national ID can be required of citizens. It really depends in the state what you have to offer once you come to vote. It really depends on the state. As I mentioned, many states require or request some kind of ID, and if a voter doesn’t have an ID, they may have to fill out some kind of affidavit to state who they are.

The real – and almost every state requires a signature, and so in fact, when Wendy is talking about all these investigations done into in-person voter fraud, it’s actually a very easy – if it happened, it would be a very easy crime to catch. There’s a signature left behind, and if somebody was voting under a dead person’s name or somebody else that later came in to vote, there would be a record of that.

So in terms of what’s controversial over the ID issue, again, what’s really been controversial is, I think in large part because we don’t have a national ID in the U.S., frankly, limiting the IDs in these states to just one or two things that 11 percent of Americans don’t have.

MODERATOR: Did you have a follow-up question, sir? In Washington?

QUESTION: Just one second. Yes. Sorry to interrupt, but if – suppose I’m a legitimate voter and I don’t have those documents that you referred to; I’m one of the 11 percent who are undocumented. So how do I prove that I actually have the right to vote when I come in?

MR. NORDEN: Frankly, that’s the --

QUESTION: Whatever state is closer to you, please take that as an example.

MR. NORDEN: Go ahead.

MS. WEISER: What you use to show your identity does vary state by state, because every state has different requirements. In most places before these restrictive identification requirements were put in place, there was a much more flexible set of identification requirements where you had a range of different documents that you can use to show your identity.

Under federal law, for example, those people who have not been identified through a numerical match can show any state-issued photo ID or a government document that bears their name and address that’s a non-photo ID. So a number of states have that as a requirement. States also ask you questions when you have to identify your address also at the polling place, and they match your signature on the poll book. So there are a variety of different checks that happen in place. They do vary state by state, how many of them are in place. But unfortunately, there isn’t a national answer to that. That is the – that is part of what’s confusing about our system here.

MR. NORDEN: But I – the one thing I wanted to add that I think was implied in that question is in the states with these very rigid ID laws – and this, frankly, what we see as a problem – if you don’t have that ID, there’s really nothing you can do. If you show up at the polls and you don’t have that ID, there’s nothing you can do to get your vote counted. And that’s why the Brennan Center and other groups find those laws so objectionable.

MS. WEISER: If you get on an airplane without – and don’t have a state-issued photo ID, you can go through extra screening and still board that airplane for the most part. And that is not true now if you go to a polling place, if these laws are in effect in those states.

MODERATOR: Back to New York.

QUESTION: Janine Harper, Fuji TV. Of course, you mentioned that there has been a lot of news about the increased requirements for IDs for voting. I just wanted to know if you can explain, particularly for communities of elderly and low-income people, what are some of the obstacles for them getting the necessary ID since they’ve had some time now, in time for the election?

MR. NORDEN: Right. Well, I mean, actually, unfortunately, in some places, they haven’t had that much time. For instance, in Pennsylvania, we still don’t know – it’s only a month before the election – whether or not this law is going to be in effect or not. But the obstacles are – there are several. First of all, for elderly people, one of the things about these ID requirements is they require a current ID. So for elderly people, many of them may have had driver’s licenses at some point, but they’re – for many of them, they’re expired, and they won’t be able to use them. And for an elderly person, it may be difficult to travel the distance to the office and wait in line to get a new ID in order to vote.

One of the examples that I use in talking about the Texas ID law is of a man who had voted all his life, but was now wheelchair-bound to use his – I’m not sure which – Texas already had an ID law, so I don't know if he was using his veteran’s card or his former state employee ID card, but whatever it was, he used what he had been allowed to use before with no problem. Now Texas changed its law. In order to get to an ID office, he would have had to – he didn’t have a car. He would have had to travel on three different buses to get there, a many-hours trip. And he was in a wheelchair.

So that’s a real challenge, and that’s a real challenge for real people, particularly that are older that don’t have IDs. In very rural areas – remember, this is necessarily people who aren’t going to have driver’s licenses. In very rural areas, people are often 30, 40, maybe even a hundred miles away from the nearest ID office. It may only be open a couple of times a month. It may require them to take off work. And in addition, often these laws require, in order to get an ID, some kind of backup documentation to get it, like a birth certificate, maybe a marriage license if their name had been changed. And some of this documentation – and a divorce decree, if they had been divorced and changed their name back – some of this documentation can be expensive for people to get, and for certain segments of the population, maybe impossible to get, particularly for older African Americans who were born in the south. Many of them weren’t born in hospitals, so they don’t – they can’t even get the birth certificate that they need to get the identification to vote.

MS. WEISER: Yeah, and that – I think that that’s something that’s probably hard for many people in other countries to understand, that we don’t have an ID – a national ID system. And so this – it is dependent on the vagaries of the different state ID requirements. And some will require your original Social Security card and four other points of documents that you may or may not have. Those documents often cost money. So even though they’re required to provide the ID for free, you have to go buy other documents in order to get to that supposedly free ID. And so it ends up being – the Pennsylvania lawsuit actually demonstrated very starkly that there were many people that couldn’t obtain even the free IDs that they were creating. They actually had to create a new ID midway through the lawsuit that might actually be something that people could obtain.

QUESTION: Yeah, hi. Martino Mazzonis from L’Unita Italian. Two follow-up questions: One on the Florida – yeah, this issue in the newspapers these days, why would someone – some organization register people – more people than they actually register? And then do states inform of legislative changes directly? I mean, do they send you a letter? You’ve been voting for all your life with that document and you might show up the day – third, sorry, it’s short questions after all – what happens at the polling center? I’ve been visiting polling centers around South Side of Chicago four years ago and in South Carolina. I mean, that doesn’t seem – it’s not so institutional sometimes. So how things develop when you show up and –

MR. NORDEN: I’ll do – I’m not sure if I understood the third question, so let me take one and two if you –


MR. NORDEN: On why anybody would commit voter registration fraud and submit fake names, it’s a very good question, particularly because now we have in place, since 2002, a very good way of catching that kind of problem. I think what may have happened in Florida and has happened in some places in the past is that, first of all, the workers who are registering people often have no idea what kind of security mechanisms there are in place, and they’re – unfortunately they can be incentivized to produce as many forms as possible. They may think that they’re under some kind of quota where they have to produce a certain amount by a certain time or they’ll get fired. And so that can lead to this kind of problem with people submitting fake names. They may feel like – that they’re going to get some kind of reward for putting in extra names. And they may have no idea that actually there is in place a very good system for catching this kind of thing.

In terms of updating people of changes in the laws, unfortunately, states don’t do a very good job of that. They’re not always required to, and even when they are, I think studies have borne out that they don’t – they’re not very good at it, and one of the things that came out in the Pennsylvania litigation was how many people thought they had the right kind of ID to vote this November, but under the law, wouldn’t have a very large percentage of people who didn’t actually have the kind of ID, assumed that they did. So it really is a problem with these kinds of changes.

MS. WEISER: I’m not sure I understood the last question either. Was it a question about notifying people of the rule changes at the polling place?

QUESTION: Yes. What – are there civil servants? I mean, what – who is there, and now – does the process happen if there is a problem?

MS. WEISER: It’s another challenge in the U.S. election system is that the elections are staffed by volunteer poll workers. They’re employees for a day. They do get paid, but they are employees for a day. They are trained in advance, often in very short trainings. Some poll workers might have only an hour training, or two-hour training, and all they – and some have better training. There’s been a real crisis in recent elections in trying to actually recruit new poll workers. They – those who are doing poll working – worker – work are really aging, when there aren’t new poll workers coming in. And the rules keep changing, and so people who have been doing this for some time are now getting new rules, new equipment each time. So there is a lot of confusion. They do have election officials that they can contact, the – either local election officials or the state election officials with questions during the course of the day. And increasingly we’re seeing a lot of nonpartisan groups that are – that volunteer to provide assistance at the poll to do observations and to do – troubleshoot if any problems arise, to actually assist voters.

And we are part of a coalition, for example, at the Brennan Center, called – a nonpartisan coalition called Election Protection, which is a hotline, so voters who experience problems can call and get assistance by nonpartisan volunteers. We are not affiliated with any state election officials, but we do – there are trained lawyers with booklets explaining the rules of elections in every state who can walk voters through and provide that assistance because we don’t actually have a good system in place to provide that on behalf of the state.

QUESTION: Thank you. Daisuke Nakai, Asahi Shimbun. One quick follow-up on the voter fraud issue: Is this recent that all these people are claiming that all these frauds are ongoing? It seems to come up all the time. But is that a recent phenomena after this post-2000 environment, or has that been there before?

And the other question is – might be slightly different from what’s you’re talking about today – but it seems that the whole self-registration business is sort of at the heart of all of these problems. And can you just possibly tell me why it continues to be the tradition of self-registration, if there’s ever been movements, like other countries, to make the system more modern, or to not use antiquated paper voter rolls? I mean, that would seem to clear up a lot of problems. Has there been any movement towards that?

MS. WEISER: I’ll start with the second one. There is, in fact, a movement towards that. This is something that we certainly agree with you is a direction that the country should be going in, and we’ve seen now about 19 states, in some form or another, have started to automate the voter registration process at their motor vehicle offices so that it’s less reliant on paper so that they – that registration information is electronically transferred from one government list to another of consenting citizens.

And hopefully there’s a movement to expand this to all the other agencies that potential voters interact with, so – and we certainly agree that the voter registration rolls is really – we can solve the – all the problems that everybody is concerned about, whether it be reducing the potential for fraud or expanding access, getting rid of errors in the system, and saving money. If we used more of these automated systems that we’re seeing around the world and if the government took responsibility for making the list and making sure that it’s accurate based on existing records – and there really is widespread support for that, especially among election officials. In the states it’s bipartisan support. This is not a partisan issue. It sometimes gets more partisan when it hits the legislatures, but when it’s administrators who are trying to run an election system and have a business that works, there’s no party divisions and supporting for these kinds of reforms. That is a good government, good business kind of reform. We are seeing – there are some bills, actually, pending even in Congress right now to make that a national requirement and movement. So hopefully that is where the country will be going, going forward, and hopefully that will dampen a lot of these debates and the politicization of the process. So I think that that’s definitely the right direction.

QUESTION: Why in the U.S. is there such --

MS. WEISER: Resistance?

QUESTION: Resistance. Or why – I mean, self-registration is supposed to be sort of this --

MS. WEISER: Some of it is inertia – that’s the existing system – and we have now, as we mentioned, 4,600 or so officials who are – who administer those systems in 50 different states who also administer those systems who run elections and have status quos and existing power structures that are based on that system. So there’s generally resistance to large-scale changes.

There was some – previously, I think there was some concern that this might be expensive. The experience in the states has shown that it is not expensive. It’s a small expense, but at the current point, even small expenses have – had some obstacles in the states – it’s an expense that actually saves a lot of money. So after one election cycle, they’ve recouped the funds and have saved going forward. But that’s been another source of resistance. And then sometimes there’s political resistance from folks who think that there might be winners and losers in that system. And that’s something that we hope gets overcome.

QUESTION: Hi. I’m Luo, come from Jiefang Daily. I have a question just – are there some restriction to voting law for those overseas voters? There are many polling station overseas and some come from those state who need a photo ID to register for voting, and some don’t need and have this – about this oversea voters. (Inaudible.)

MS. WEISER: There have been two recent laws that actually improve access to the franchise for overseas a military voters in terms of getting easier access to registration. Also moving – changing the deadlines for having ballots sent to them. The – many of these new restrictive laws had exceptions that applied to certain overseas and military voters especially – and so it does vary state by state. There is no federal law that applies equal ground rules on – for overseas voters. They too are covered by the state law of the state from which they either originally come from or which their vote will be sent.

MR. NORDEN: They should say – Wendy referenced this, but one big change for overseas voters – we lump generally, in federal legislation, military and overseas voters together – is that there is now a federal requirement that they are allowed to vote beginning 45 days before the election. So people overseas are already starting to vote in the U.S. election and they are not impacted by this change in early voting rules around the country


MS. WEISER: And what is the – whether or not these requirements will apply in overseas polling stations, I’m not sure I know the answer. I believe – I don’t believe that they do, but we can get an answer afterwards and would be happy to – would pass it along if you give us your card.

QUESTION: Hi. Beatriz Barral from Cadena SER in Spain. We’re talking about – a lot about the importance of the Hispanic vote for this election, and one of the key things is their turnout. So I was wondering, how is this going to impact the Latinos going to vote in this election? I read this morning that, like, 1 million potential voters could be affected. I don’t know if you have that figures or –

MS. WEISER: Well, I’ll start by saying that many of these laws are not going to be in effect. So even though these laws would more – would disproportionately harm Latino voter participation, these laws aren’t going to be in effect. And so hopefully that will not be a problem. There are some concerns that there will be a lot of misinformation out there that certain requirements will be imposed on Latino voters even though they’re not the law, and this is something that we’ve seen studies in – recent elections have shown that voter ID requirements are often discriminatorily applied. And many people across the country, especially minority voters, are asked to show IDs that aren’t required by their state laws by poll workers. They may or may not know the requirements. It may not be purposeful, but that is something that we do see and is certainly a concern for Latino voters.

Another concern is – Larry mentioned that there are going to be political operatives from independent groups that are mounting voter challenge operations, and there’s a concern that those are going to be targeted in Latino communities. That is something that we saw a little bit of in 2010. And based on some of the public remarks that these groups have made – and again, we don’t know what they’re going to actually do – there is a concern that those voters will face those kinds of challengers, and that often does devolve into voter intimidation. Voters can find that intimidating, and they might be given misinformation and otherwise – or their voting process might be slowed down, which might create long lines and harm their participation. That’s something that we certainly hope doesn’t happen, and there are a lot of groups that are going to be there on the ground to try and stand up for those voters and prevent those kinds of abuses from happening on Election Day.

But that is certainly a concern, and it’s a concern that people are mobilizing to prevent, and I think election officials are concerned as well, and they’re going to be setting processes in place as well.

MR. NORDEN: I would have – a last thing that might be a particular concern for Latino voters is the purging of voters. We’ve seen problems with this in the past. We had a couple of states, in particular Florida and Colorado, where a secretary of state or a governor claimed to have found tens of thousands of non-citizens on the rolls. These were disproportionately Latinos. And as it turned out, now that we’re getting information, almost all, if not all of them, were clearly citizens. But there is a concern always that there’s the potential that people’s names will be taken off the rolls when they shouldn’t be, when they are legitimate voters.

MODERATOR: Okay. Final question.

QUESTION: Yeah. Your green pushback map, is there a common theme or a common legal principle among your judiciary that they have relied on to knock back the red states?

MS. WEISER: Yeah. That’s a very good question. Actually, no. There have been a range of different lawsuits under – in a range of different jurisdictions, under a range of different laws, and there have been very few that have been decided on the same basis. That is there’s been clear – it’s been very clear that the courts have seen that – have found these laws illegitimate and lacking, and there is certainly a desire by the courts to push back. This is against the American legal tradition of full participation and expansive franchise.

That said, the – what has been notably lacking are cases brought under the U.S. constitutional protections for the right to vote, because there was a Supreme Court decision in 2007 that had a much more constrained interpretation of how, under the U.S. Constitution, courts would analyze laws that make it harder for people to vote. There have been a range of other cases, a whole bunch of federal laws, state constitutional protections that protect the right to vote. And so these cases have been brought and decided under those other laws and protections. The one unifying protection would be a federal constitutional protection, and we haven’t seen any decisions or cases actually brought under that theory yet this year.

MR. NORDEN: Yeah. There are two additional points I would make. Again, you come back to the fact that the United States is so decentralized. So there are claims brought under state law and state constitutions, claims brought under federal law, as Wendy said, and it’s different in every state, and obviously the plaintiffs were looking for what they thought would be their strongest claim. And that is going to vary from state to state and depending on what kind of federal laws they’re covered under.

In addition, I would say if there is one common theme, it’s not necessarily a legal principle, but clearly the courts have seen many of these laws as being politically motivated, political manipulation to interfere with the tradition in the United States of equal accessibility to elections. And that is a very important principle whether you’re a state court or a federal court. And I think the tenor of many of these opinions makes clear that they are bothered by this kind of political manipulation of the election rules.

MODERATOR: Please join me in thanking our briefers from the Brennan Center for Justice at New York University School of Law, Wendy Weiser and Lawrence Norden. Thank you very much for being with us today. (Applause.) That concludes our briefing.

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