Editor's note: This post first appeared in The American Prospect
With their first-in-the-nation caucuses and primaries, Iowa and New Hampshire generally set the trends for presidential elections. All eyes look to them to see what happens next.
Let’s hope that their influence does not extend to election laws. In the past few months, legislators in both states have introduced—and Iowa lawmakers have passed—bizarre legislation that, if allowed to stand, will keep thousands from voting.
Although courts have issued a handful of strong decisions over the past year defanging comparable bills in states like Texas and North Carolina, some legislators continue to push these restrictive efforts, attempting to do so in ways they believe will pass legal muster.
Iowa Secretary of State Paul D. Pate, who earlier defended his state’s elections processes as “clean and fair,” introduced legislation in January that would require all voters (aside from nursing home residents) to present photo ID before casting a ballot. Pate himself acknowledges that voter fraud is rare. Indeed, an investigation by his predecessor Matt Schultz in 2014 revealed an “infinitesimal number of illegal votes cast and zero cases of impersonation at the polls.” But Pate moved forward anyway, under the guise of instilling “confidence” in the system.
Pate may have been guided by the words of retired Supreme Court Justice John Paul Stevens. In the first Supreme Court case sanctioning voter-ID laws, Stevens concluded that a state’s interest in preserving public confidence in its elections suffices to justify ID requirements, so long as the burden on voters isn’t excessive. Judge Richard Posner, the Seventh Circuit appellate jurist whose decision the Supreme Court’s ruling was based on, has since recognized these laws for what they are - efforts to suppress the vote - and Stevens also now views the laws as problematic. Nevertheless, the court’s ruling remains in force and appears to have bolstered the confidence of legislators and secretaries of state in pushing these bills forward.
As with comparable ID bills passed elsewhere, the fate of the Iowa and New Hampshire bills will likely come down to what the courts say. Recent decisions in Texas, North Carolina, and Pennsylvania indicate that, intent aside, if a voting law discriminates against protected classes, or puts too great a burden on some to vote, it must go by the wayside.
Pate claims his proposal will not disenfranchise anyone, and in fairness to him, voting-rights advocates acknowledge that the plan specifies that the state Department of Transportation will provide free voter IDs to voter registrants who don’t already have state-issued identification. The trouble is, the bill doesn’t go far enough: The provision of those free IDs hinges on the state covering the cost, and nothing in the legislation suspends the ID requirement if funding dries up.
Whether Pate intended it or not, there’s a real possibility that voters will end up having to pay for their IDs or that the state will do a poor job of ensuring on-time delivery. That’s exactly what happened in Wisconsin, leaving many on the sideline in a crucial election. (An Iowa voter without ID, moreover, can still vote by provisional ballot under Pate’s legislation, but will need to present ID to the clerk’s office within a specific period for that ballot to count.)
Pate and his colleagues may not be trying to cut certain voters out of the process “with near surgical precision,” as an appeals court found last year in a ruling dealing with the actions of North Carolina legislators. But the law doesn’t have to be nefarious to be damaging, and the courts can find that even well-intentioned laws run afoul of the Constitution.
Iowa’s House File 516 has already been passed by both chambers and will likely be signed by Governor Terry Branstad. If that happens, advocacy groups and the state will both likely, as Saul Goodman’s license plate reads, “LWYRUP.” But what of Iowa’s quadrennial primary partner? New Hampshire’s proposal to modify current voter-registration requirements is scary, too. Senate Bill 3, passed along partisan lines in the state Senate at the end of March, now heads to the House for a vote. Some claim the bill’s purpose is to solidify a 30-day residency requirement before people who have moved in the Granite State can cast ballots. Nothing wrong with that, says the Supreme Court. But the bill goes an outrageous step further.
Unlike Iowa’s bill, New Hampshire’s does not impose a photo-ID requirement; as of 2015, it already has one in place. New Hampshire’s 2015 law requires presentation of one of several specified photo IDs before voting. A registrant with no ID may still vote if an election official on site vouches for his or her identify or if the voter submits a “challenge affidavit” and then poses for the camera. How this prevents illegal voting is anyone’s guess. But with a recent ID law already under its belt, the New Hampshire legislature took voter suppression a step further by introducing new registration restrictions, the first hurdle to the ballot box.
If SB3 passes, voters who register ahead of time or on Election Day will have to provide one of several pieces of documentation demonstrating residency. While several acceptable forms are relatively easily accessible (utility bills, for example), the penalty for failing to mail an approved form to elections officials, assuming the information is not supplied at the time of registration, is steep enough to deter many would-be voters from participating. In fact, an individual who registers and then fails to provide the documentation within the allotted time, for whatever reason, not only risks a possible visit from law enforcement but also risks a fine of up to $5,000.
What this bill does is raise mistake to the level of criminality. And more than anything, it would deter people from registering to vote for fear that, if they make a mistake, police could show up at their doorstep. That’s particularly problematic in African American and Latino communities that already have tense relationships with law enforcement. This move does nothing to assuage fears that the government is there to protect them. It’s seen as a scare tactic, pure and simple. The aim is to keep away new voters, particularly low-income and minority populations who have long been thwarted in exercising their right to vote. New Hampshire has a small number of black voters, but the number of voting-eligible Latinos is steadily growing. So is this the backlash?
Legislators who’ve introduced these bills in Iowa and New Hampshire, like their counterparts across the country, are driven by a desire to suppress votes. They’ve bought into the false fears many Republican leaders have stirred for years about illegal voting and have decided to stoke fear’s flames for political profit.
There are good people in politics who try to call out these lies as fast as they tumble through Twitter feeds. The problem is, when folks cry “bogeyman” long enough, other people start believing the bogeyman lives under their beds. As President Trump and his propagandists know well, “Repeat a lie often enough and it becomes the truth.” There’s a band of scholars, journalists, advocates, courts, and others who routinely counter the lies with facts. Now it’s time for elected officials, as stewards sworn to public service, to snap to and do the same—regardless of party.
Allegra Chapman is Common Cause’s director of voting and elections.
Issues: Voting and Elections