By Bill Boyarsky
If Barack Obama, the presumed Democratic presidential nominee, is to defeat John McCain, he’d better get started organizing teams of election law attorneys and other specialists to guard against efforts already underway to disenfranchise Democratic voters.
State laws imposing strict voter identification requirements have proliferated. They will be used by Republicans in battleground states to challenge low-income voters, usually blacks and Latinos, needed by Obama. Nonresident college students, another part of the Obama constituency, will probably also be challenged.
This means the election may have to be decided in state courtrooms and by local election boards around the country. Scenes we remember from Florida’s 2000 election could be repeated in many places.
Hilary O. Shelton, director of the NAACP’s Washington Bureau, told a House committee in February that ” ... The NAACP, as well as representatives from almost every other civil and voting rights organization, all report an increase in the number of Americans—primarily racial and ethnic minority Americans—who say they have been denied their constitutional right to register and vote.”
This is called voter suppression. Republicans used it with great success in Florida in 2000 and in Ohio four years later. Those contests, won by President Bush, featured shortages of voting machines in minority areas; lost, discarded or rejected ballots; and many challenges to voter eligibility. In 2004, the Bush administration added to the mix by demanding prosecution of ACORN, a grassroots group that works to register poor people to vote. U.S. attorneys who wouldn’t go along were fired in one of the administration’s nastier scandals.
This year, Republican voter suppression seems to be taking a new and more sophisticated turn. Republican-led state legislatures are adopting strict laws requiring voters to present identification at the polls. In April, the U.S. Supreme Court upheld Indiana’s tough law, which requires government-issued identification, such as a driver’s license, a passport, or a state or military ID card.
Robert Barnes wrote in The Washington Post, “The ruling bodes well for other states that require photo ID and for states that are considering doing so.”
The Web site electionline.org reports that Florida and Georgia, in addition to Indiana, require photo IDs. In four states, polling officials ask for—but don’t require—photo IDs. Eighteen states require either photo or non-photo IDs, and their requirements vary wildly. It’s challenging to read just the summaries of these state laws on electionline.org.
Worse yet, most of these laws are administered by partisan state election officers and county officials who may owe their loyalty to some local party or neigborhood political boss—or who may simply be governed by their own prejudices or ignorance.
Professor Richard L. Hasen of Los Angeles’ Loyola Law School, one of the nation’s foremost election law scholars, said in a Stanford Law Review article that 33 chief state election officers were chosen in partisan elections. “In many ways, save technological improvements in the casting and counting of votes, the situation is worse than it was in 2000. Election administration today is more partisan and more contentious than it was before the public had ever heard of ‘dimpled chads,’ ” Hasen said.
I asked Hasen what form he thought voter suppression would take in 2008. He said he didn’t think we were likely to see a “mass campaign against minority voters.” That, as the U.S. attorneys’ scandal showed, was the Republican game plan in 2004.
Rather, he said, there will be “individual instances” of voter suppression. These will take place in countless polling places, be initially judged by local election officials, and then move up to the state chief election officers, mostly partisan, and finally to the courts, often run by political judges. In other words, political hacks administering incomprehensible laws.
“The most successful way of keeping minority voting down is [using] the law,” Hasen said.
To counter such moves, he said, candidates needing minority votes, such as Obama, must put field workers and election lawyers into the field to educate voters on the complexities of their local laws. They must make sure voters have the required ID. And they must be ready to go to court in an instant when someone spots a dirty trick. “These kind of things have to happen now,” he said.
An area of immediate concern should be the Western battleground states of Colorado, Nevada and New Mexico, with a total of 19 electoral votes. Latino voter turnout will be important there, and intensive get-out-the-vote efforts by the Obama campaign are planned in Latino communities in those states. But Antonio Gonzalez, president of the Southwestern Voter Registration Education Project, told me that anti-immigrant sentiment may hurt the turnout.
In Colorado, for example, he said that 15 to 20 percent of the Latino community is foreign-born, where once it was 10 percent. In New Mexico, he said, the foreign-born Latino population has risen from 5 percent a few years ago to 10 to 15 percent today. Clearly, a combination of Republicans and anti-immigrant activists—sometimes the same people—could put together a strong voter intimidation campaign targeted at Hispanics.
Dirty tricks could be one of this year’s most important election stories. So far, it’s been too complicated and distant for a political media hooked on instant thrills. Only a few bloggers are on the story, such as New York University media professor Mark Crispin Miller and journalist Brad Friedman. Loyola Law School’s Professor Hasen offers an excellent combination of information and analysis.
At this point, what’s more important than the coverage is that Barack Obama and his staff hustle election specialists to the battleground states. There’s not much glory in nosing around a Colorado county courthouse—but that’s where this election may be decided.
AP photo / Lauren Victoria Burke
Starting early: Democratic presidential candidate Sen. Barack Obama listens as Sen. Charles Schumer testifies before a Judiciary Committee hearing last June on legislation to prevent voter fraud.