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The 2012 election promises to be among the most contentious and closest in U.S. history, but millions of Americans may be denied the right to vote because of insufficient identification. Strict new voter ID laws have been passed in several states, including Pennsylvania, Texas, and Virginia, with some polls showing a majority of Americans favoring the new laws. Alexander Keyssar is the Matthew W. Stirling, Jr., Professor of History and Social Policy and author of "The Right to Vote: The Contested History of Democracy in the United States" (published in an updated edition in 2009).
Q: What is the history behind these new Voter ID laws? Who benefits from these laws?
I think it’s reasonable to say that the origin of the current wave of ID laws resides in the 2000 election, a presidential election that was extremely close. It became very clear to the American people and political professionals that control of the national government could depend on a very small number of votes.
In the wake of that, there were efforts, even in the drafting of the Help America Vote Act in 2002, to install an ID requirement although it was only done partially. Then you started seeing ID and other laws being pressed in state legislatures in 2004 and 2005. It accelerated further following Barack Obama’s election in 2008 and even further following the Congressional and statewide elections of 2010 when Republicans gained control of more state legislatures.
Q: How does this Voter ID movement mirror similar episodes in U.S. history?
Let me say something first about the content of these laws. The simple chronology that I offered doesn’t reveal that this new wave of voter I.D. laws is largely partisan in its intent and consequences. The laws are not a response to electoral fraud, particularly not electoral fraud in the form of voter impersonation, which is the only kind of fraud that photo I.D.s would hope to prevent.
These laws do seem intended to reduce the participation of those who – at least according to their demographic characteristics – would be more likely to vote Democratic than Republican. In that respect, these laws very much resemble electoral laws that were passed in the late 19th and early 20th century which were of two different types.
The most Draconian form took place in the South when laws were passed to prevent African Americans from voting after the Constitution was amended in the late 1860s to permit them to vote. These were the devices that are somewhat famous: literacy tests, poll tax requirements and eventually the white primary in the South.
But I think that the resemblance of current laws is stronger to a parallel wave of legislation that was passed in Northern states in the late 19th century where, for example, anyone who was an immigrant or who might be an immigrant was required to present their naturalization papers at the polls. There were requirements in some states and cities which mandated citizens to register to vote every year, and often they had to register during a work day, which was difficult for many people. There was a law passed in New York state one year in the early 20th century that the day you had to register to vote was either on Saturday – the Jewish Sabbath – or on Yom Kippur.
These laws were not aimed at really wholesale disenfranchisement as the Southern laws were, but they were aimed at reducing the participation of particular groups of people, notably immigrant workers.
Q: You recently wrote a commentary in the New York Times opposing the Electoral College, but changing this system has traditionally been a near impossibility. Do you think it’s possible?
I do think it’s possible to change the Electoral College – or maybe that just proves that I’m an eternal optimist. One thing we should bear in mind is that we came very close to getting rid of the Electoral College in 1969 when a Constitutional amendment passed the House of Representatives overwhelmingly and President Johnson and then President Nixon said they would sign it. The polls looked pretty good, but it was killed by filibuster in the Senate. We’ve come quite close but the difficulties are very severe – so I don’t think this is going to happen right away.
Right now there is a movement and strategy underway for getting rid of the Electoral College which I think has a lot of promise, and that is the interstate compact that has now been approved by a number of states. It’s an agreement that when the requisite number of states have signed on to the compact, they will all cast their electoral votes for the person who is the winner in the national popular vote. If states with a majority of the electoral vote sign on to this national compact, then that could control the election; the movement to do this is fairly far along. I think that they’re within shooting distance of having half the number of Electoral College votes that they need.
If this effort gets close, I think that there will then be a serious effort to amend the Constitution and move us in the direction of a national popular vote. There will be opposition to it, of course, and getting something like this passed may well depend on the occurrence of another crisis such as happened in 2000, and almost happened in 2004, a situation where the person who wins the popular vote does not win the electoral vote.
Q. What if we do get rid of the Electoral College – does that make voter ID laws even more of a hot button issue since the popular vote will presumably have more weight?
I think that if we did get rid of the Electoral College, it would transform a lot of the practice of politics and it might or might not make voter ID laws more of a hot button issue. Maybe it would because people would be focused on the popular vote. On the other hand, a lot of the energy right now has to do with the fact that if you win a state by four votes, you get all of its electoral votes. You’re not just four votes ahead as you would be with a national popular vote.
Accordingly, many experts think that small margins may actually be more important in the Electoral College than the national popular vote.
Q. You have pointed out that there is popular support for voter ID laws. It seems that with very little evidence, the narrative of voter fraud has really taken hold, whereas voter suppression – for which there is of a lot of evidence – has been a hard story to sell. Why?
It’s a very good question. The fact is, there is popular support, and it is commonsensical popular support. People make the case, “well you need an ID to get onto an airplane” or “you need an ID to get into an office building – why not to vote?”
Well, for one thing, getting onto an airplane is not a fundamental right, nor is getting into an office building. But, in fact, my own view is that I would have no objection to a national voter ID. Most countries have them. The question is, how do you go about setting it up and who is responsible for making sure that the entire population has these documents?
You could answer this concern by saying, ok, we’re going to create a voter ID system and each state or the federal government is responsible for making sure that everybody has such an ID; it’s not the responsibility of the 85 year old person who can’t drive to go and figure out where they can get an ID.
On the larger question about why a significant proportion of the population seems to feel or suspect there is voter fraud in the absence of much evidence about it, I think people come to this issue with their own prisms, their own perspectives. African Americans – for whom a history of disfranchisement, of voter suppression is part of their history over centuries and is part of the stories they’ve heard from their parents and their grandparents – are quite ready to see voter suppression as something that’s widespread.
I think among a number of Americans, it has always been easy to see fraud or illegal organized activities among people who are racially or ethnically “other,” and I think that’s a part of what’s going on. We are living in a period where we have an African American population that has, in some respects, more political power than it has ever had in the past and we have an enormous immigrant population, both documented and undocumented, and I think that the presence of both of those groups has created a lot of apprehensions in some segments of American society.
Q. Other countries make Election Day a holiday so that people can vote. Why don’t we do that?
Yes, almost all other countries make Election Day a holiday or hold elections on a Sunday in order to increase turnout. One of the disturbing and remarkable features of the practice of American electoral politics is that, in some ways, the whole system seems designed to reduce turnout rather than to encourage participation.
It has been very difficult to get changes. In 2001-02, I testified before the National Commission on Federal Election Reform, chaired by Jimmy Carter and Gerald Ford. The Commission recommended that Election Day be held on Veteran’s Day, which is already a national holiday in early November so it wouldn’t’ involve changing much on the calendar – and, somewhat surprisingly, there were objections from veterans groups that, somehow, this would detract from the attention given to Veteran’s Day.
Proposals that elections be held on Sundays have always been opposed bysomeparts of the clergy, although as we know there are many countries that are very religious or many countries with long established churches that hold elections on Sundays. So I don’t think that those are insurmountable obstacles if there were a shared agreement in our political system and amongst our political parties that increasing turnout was a goal. Unfortunately I think that political managers who run elections and plan campaigns these days actually prefer to have a known and tidy and not very volatile electorate.