The New Poll Tax

One of the recurring scandals in American politics since passage of the Voting Rights Act of 1965 is the discriminatory use of so-called "ballot security" programs. These programs are invariably presented as good government measures necessary to prevent voter fraud, but far too often they are actually designed to suppress minority voting -- and for nakedly partisan purposes. Take, for example, the last election.

Shortly before this November's balloting, the U.S. Department of Justice announced a "Voting Integrity Initiative" to deal with voter fraud. Civil-rights groups raised concerns that the new federal initiative -- like so many local anti-fraud programs -- would unfairly target minority voters. As if to confirm that fear, the new program opened with a joint federal and state investigation of alleged voter fraud in South Dakota counties with significant American-Indian populations. The allegations and the probe, led by the state's Republican attorney general, Mark Barnett, came on the heels of a registration and get-out-the-vote campaign launched by the Democratic Party on South Dakota's reservations, where voters tend to be Democrats and registration has historically been depressed.

Barnett, working with the FBI, announced plans to send state and federal agents to question almost 2,000 new Native-American registrants, many of whom were participating in the political process for the first time. County auditors cooperated by subjecting American-Indian registration to a special level of scrutiny. No similar effort was made to investigate new registrations in South Dakota's other counties, which had few American-Indian residents, even though those counties contained most of the new registrations in the state.

If Republicans meant this investigation to suppress Native-American -- and thus Democratic -- turnout in the U.S. Senate race between Republican challenger John Thune and Democratic incumbent Tim Johnson, they must have been sorely disappointed. It seems instead to have energized American-Indian voters. In Shannon County, for example, which is more than 95 percent Native American, turnout in the 2000 presidential election was 38 percent of registered voters. In the 2002 election, it jumped to 45 percent. Moreover, the increased American-Indian/Democratic vote proved to be decisive for the senatorial election, which Johnson won by just 524 votes.

But there was no missing the potential for abuse in the federal ballot-security program. American Indians were targeted based on fraud allegations that proved to be grossly exaggerated; at the end of the investigation, only one Native American was even charged with a voting-rules violation.

The controversy over the South Dakota ballot-security initiative wasn't the only one that surfaced just before the 2002 elections. In Pine Bluff, Ark., Democrats accused Republican poll watchers of driving away voters in predominantly black precincts by taking photos of them and demanding identification during pre-election day balloting. Democrats in Michigan charged that a plan by Republicans to station hundreds of "spotters" at heavily Democratic precincts was an effort to intimidate black voters and suppress Democratic turnout. In South Carolina, a lawsuit filed the day before the election alleged that officials in Beaufort County had adopted a new and unauthorized policy allowing them to challenge voters who gave rural route or box numbers for their registration address. According to the complaint, a disproportionate number of those affected by the new rule would be African-American voters who lived in the rural areas of the county. (In mediation, Beaufort County officials agreed to drop the rule.)

Yet this kind of harassment of minority voters is scarcely a congressional priority. To much fanfare, Congress enacted the Help America Vote Act this past October to avoid a recurrence of the kind of fiasco that took place in Florida in the 2000 presidential election. Among other things, the act calls for federal payments to help states replace their punch-card voting systems, which were notoriously dysfunctional in the 2000 election, with more modern and reliable technology. It sets minimum standards for voting system accuracy. These are positive measures.

But the act unfortunately contains other provisions that may enhance the opportunities for harassment and intimidation of minorities through ballot-security programs. One section, for instance, requires anyone who has registered by mail and has not previously voted to present on election day a photo identification -- or a utility bill, bank statement, government check or other government document that shows the name and address of the voter. Those who fail to provide the requisite identification must vote by special "provisional" ballot.

The ID requirement is problematic for several reasons. First, minorities are less likely than nonminorities to have photo IDs. The Justice Department concluded in a 1994 study in Louisiana that blacks were four to five times less likely than whites to have a driver's license or other picture identification. The Federal Election Commission noted in a 1997 report to Congress that obtaining a photo ID entails major expense, and requiring it at the polls imposes an undue and potentially discriminatory burden on citizens exercising their right to vote. All the alternatives to photo IDs present similarly unfair hurdles to minority voters.

Second, there is no evidence, other than anecdotal, that the new ID requirement is needed to reduce voter fraud. States with no such requirements have reported no greater incidence of voter fraud than states that have them. The new ID requirement is in reality a solution in search of a problem. It doesn't make it harder to commit fraud; it just makes it harder to vote.

Third, the ID requirement provides another opportunity for aggressive poll officials to single out minority voters and interrogate them, asking humiliating questions such as, "Where's your government check?" and, "Don't you have a bank statement?"

Americans might like to think that discrimination against minority voters ended with the civil-rights movement, but it's been going on in many parts of the country ever since. And ballot-security programs have been the usual vehicle. A notorious "anti-fraud" initiative was implemented before the 1981 gubernatorial election in New Jersey. The Republican National Committee formed a National Ballot Security Force, which mailed letters to registered Democrats in predominantly black or Hispanic areas. Letters returned as undeliverable to the address listed were then used to challenge voters and have them removed from the voter lists as nonresidents.

On election day, the security force dispatched armed off-duty police officers wearing official-looking armbands to heavily black (and Democratic) precincts in Newark, Camden and Trenton. The Republicans also posted signs warning that the polls were being patrolled by security-force members and offering a $1,000 reward for anyone giving information leading to the arrest and conviction of election-law violators. A toll-free number was listed to report possible voter fraud.

The Democratic National Committee filed suit against the New Jersey and national Republican parties, and it was eventually settled. The defendants agreed not to post security forces at polling places or allow any other election tactics that targeted minorities or deterred them from voting.

Despite the agreement in the New Jersey case, the Republicans resorted to similar maneuvers in Louisiana in the 1986 U.S. senatorial campaign involving Democrat John Breaux and Republican Henson Moore. The party sent letters marked "Do Not Forward" to voters in predominantly black precincts and used the returned letters to request that local registrars purge approximately 30,000 names from the voter rolls. In a lawsuit later brought by local voters, a state district court judge said the Louisiana ballot-security program "was an insidious scheme by the Republican Party to remove blacks from the voting rolls. ... The only reasonable conclusion is that they initiated this purge with the specific intent of disfranchising these blacks of their right to vote." The judge ruled that the tactics could not be used again.

Republicans, however, launched still another ballot-security program in North Carolina in 1990, during the heated U.S. Senate contest between Republican Jesse Helms and Democrat Harvey Gantt. The state board of elections had released figures showing a significant increase in black voter registration throughout the state, and The Charlotte Observer had conducted a poll showing that Gantt had an advantage of 8 percentage points over Helms. To counter Gantt's lead, the Republicans adopted a ballot-security program targeting minority voters.

In late October, party operatives mailed out approximately 81,000 postcards to households with at least one registered Democrat in selected precincts throughout the state. Black voters were nearly 94 percent of the registered voters within the selected precincts. The cards were marked "address correction requested" and advised voters -- falsely -- that in order to vote, they must have resided in the precinct for the previous 30 days. (State law, in fact, made various provisions for voting by those who moved from one precinct to another before election day.) The card further warned that it was a federal crime punishable by up to five years in prison to give false information about residence to election officials. A week later, a second mailing of 44,000 similar postcards was sent exclusively to black voters in the state. As part of the ballot-security scheme, the Republican Party planned to use any returned postcards to challenge voters on election day.

After the election -- which Helms won -- the Justice Department sued the North Carolina Republican Party and the Helms for Senate Committee. The defendants, without admitting any wrongdoing, entered into a consent decree in which they agreed not to undertake similar ballot-security programs in the future without court approval.

I was involved in a voting-rights lawsuit tried last summer in South Carolina over at-large elections in Charleston County. A parade of witnesses in the case testified about the Ballot Security Group organized in the county by Republicans, which for two decades targeted black Democratic voters. Truet Nettles, a former state magistrate judge and a member of the county election commission throughout the 1980s and 1990s, explained how the group operated to deny blacks assistance at the polls: "In the African-American precincts, the poll managers who were ... nominated ... by the Republican Party would give the third degree to [African Americans who sought assistance in voting.] 'Why do you need assistance?' [they would say.] 'Can't you read and write? And didn't you just sign in? And you know how to spell your name, why can't you just vote by yourself?'" As a result of "all this hoopla," said Nettles, "some of the voters said, 'Oh, never mind,' and they just turned around and walked out the door."

In 1986, Nettles and the chairwoman of the county Democratic Party, Joye Cantrell, got a restraining order from a local judge prohibiting election officials from interfering with the right to vote and requiring them to provide voters with assistance upon request. But in the elections that followed, the Ballot Security Group ignored the restraining order and went back to its old tricks. And this was in a county touted by its white population for its interracial civility.

In the 1990 election, according to William Runyon, another former member of the county election commission, one Republican poll manager became so aggressive in his efforts to intimidate blacks and prevent them from voting that Runyon had to call the police, who physically removed the poll manager from the precinct. Maurice Washington, a former member of the Charleston City Council who ran for mayor in 1999, testified that on election day his campaign received "complaints all day long coming from [the city's] predominantly black precincts, where many of the black voters complained about wanting to vote for me, but for some reason their voting status was questioned."

Similar treatment was never reported at the predominantly white precincts, according to both Nettles and Washington. The alleged "good government" rationale for Ballot Security Group scrutiny of blacks who requested assistance was to prevent ward heelers from entering the polling booths and manipulating the vote. But whites who requested assistance were allowed to take a person of their own choosing into the booth as a matter of course.

Existing federal laws make it a crime to intimidate or harass minority voters. But given the lax enforcement of those laws -- there is no record of the purveyors of any ballot-security program being criminally prosecuted by federal authorities for interfering with the right to vote -- a more promising way of dealing with the excesses of ballot-security programs may be private damage actions brought by those who have been their victims. In a groundbreaking decision, a federal appeals court in Arkansas this year affirmed an award of damages ranging from $500 to $2,000, payable by individual poll officials to each of seven black voters who had been unlawfully challenged, harassed, denied assistance in voting or purged from the rolls in the town of Crawfordsville. Making poll officials and others pay a significant sum per voter when they interfere with the right to vote could prove to be the best guarantee of real ballot security.

Congress and the states may -- and should -- adopt nondiscriminatory, evenly applied measures to ensure the integrity of the ballot. But laws that impose special burdens on minority voters and that increase the opportunities to intimidate them and prevent them from voting have no place in a democracy. The right to vote, described by the U.S. Supreme Court more than a century ago as "preservative of all rights," is too fundamental to be trifled with.