Notes on a Theory…

Thoughts on politics, law, & social science

This isn’t like Jim Crow, it is Jim Crow: Disenfranchisment in the Twenty-First Century

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One problem with our general ignorance of history is that you can end up thinking developments are different from the past when they aren’t. I was reminded of this while reading Andrew Cohen’s excellent piece on the disenfranchisement in South Carolina.

On Wednesday morning, [Judge] Beeney questioned Andino [a South Carolina election official] about the status of registered voters who come to vote on Election Day without the new form of photo identification required by the new law. Those registered voters may be permitted — the emphasis is on the word “may” because local officials seem to have a great deal of discretion to make that call — to cast a provisional ballot if they state they had a “reasonable impediment” to getting the new identification cards.

Those provisional ballots, in turn, may then be challenged (by anyone) on the basis that the provisional voter didn’t have a “reasonable impediment” after all. The challenges are heard and resolved on the Friday following the election — one day in advance of the “certification” of the election results that occurs on Saturday. Andino testified that South Carolina notifies provisional voters of this hearing by mail between Tuesday’s election and Friday (which doesn’t leave much time for the postman, does it?).

A provisional voter isn’t told that his or her vote has been challenged. The provisional voter is simply told there will be a hearing. So if that voter wants to defend his or her “reasonable impediment” declaration, the voter has to go to the county seat on the Friday following the election to make sure that his or her vote will be counted. Of course, a lack of transportation, public or otherwise, is likely to have been one of the biggest reasons why that voter could not get his or her new identification in the first place.

It gets worse when he quotes the testimony.

This isn’t like Jim Crow. It is Jim Crow. We tend to think about the explicit racial classifications that drove school segregation as the heart of Jim Crow.  The dramatic Brown decision distorted our view of what Jim Crow was really about.  But in reality, the bigger issue, the one that the 14th and 15th Amendments were designed to address, was this: officials given power to act at their discretion, private individuals empowered to act under color of law, claims of fraud by poor African-Americans being used to commit fraud—defrauding people of their rights and cheating to win elections.  Because of the 15th Amendment, states were not allowed to use race explicitly to deny the right to vote. So they used these very tools to achieve the same ends through allegedly race neutral means. Read the whole piece and tell me: does this sound like to effort to protect the ballot box, or is it an assault on it?

[Update] Just so there’s no confusion, here’s my position – the laws of every state are too restrictive when it comes to democratic rights.  Every citizen over the age of 18 (at least) should have the right to vote.  No rule which makes voting more difficult or more costly should be allowed.  There should be a voting holiday, and absentee ballots should be freely available for any reason.  If a state is going to require registration, it should shoulder all of the burden of making sure all eligible voters are signed up and of enforcement.  Individuals and non-government organizations should have no role in enforcement or registering.  There should be paper ballots only.  No one should be allowed to both administer elections and take part in the campaigns they oversee.  The rules should be drastically simplified and clarified (thereby drastically reducing the role of lawyers).  Attempts to convince people to vote on the wrong day, wrong place or the like should be treated as serious crimes.  (And political parties should connect with voters directly which would allow them to communicate without the filter of the media and would make dirty tricks far less effective.  This would also reduce the importance of money and ads in campaigns, and empower voters).  The status quo is unacceptable, even without these new laws.

[Update 2] I left out an important part of the problematic status quo – the exclusion of DC from representation in Congress, as well as all the overseas possessions like Puerto Rico.  None of this can be justified by a real, small d democrat.

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Written by David Kaib

August 31, 2012 at 2:08 pm

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