Restoring the Right to Vote
Crawford v. Marion County [Indiana] Election Board
Florida State Conference of the NAACP v. Browning
In May, Hillary Clinton described many of her core supporters as “hard-working Americans, white Americans.” Primary voting in Pennsylvania, Ohio, and West Virginia confirmed her surmise. Her remark seemed, without saying so, to claim an advantage over Obama that was due to his race. But there’s more we need to know. We can see how being a farmer or a bond trader or a gun collector might influence your vote. And we understand why black Americans would want a person of their race in the Oval Office. But just what is there about being white that might incline someone toward one candidate instead of another?
Senator Clinton implied that this identity was salient for some voters and that she could appeal to it. Polls showed that some 15 to 20 percent of white voters in those three states said that “race” was a factor in their vote, and we are left to wonder just how much of a factor and how many more would have said the same if they had been frank with the interviewer. People are uneasy talking about the subject of race, but the feeling persists that Obama’s half-ancestry could tip the scales on November 4.
Barack Obama can only become president by mustering a turnout that will surpass the votes he is not going to get. This may well mean that more black Americans than ever will have to go to the polls, if only because the electorate is predominantly white, and it isn’t clear how their votes will go. Obstacles to getting blacks to vote have always been formidable, but this year there will be barriers—some new, some long-standing—that previous campaigns have not had to face.
For many years, the momentum was toward making the franchise universal. Property qualifications were ended; the poll tax was nullified; the voting age was lowered to eighteen. But now strong forces are at work to downsize the electorate, ostensibly to combat fraud and strip the rolls of voters who are ineligible for one reason or another. But the real effect is to make it harder for many black Americans to vote, largely because they are more vulnerable to challenges than other parts of the population.
Licensed to Vote
In a 6–3 decision in April written by John Paul Stevens, Crawford v. Marion County Election Board , the Supreme Court upheld a 2005 Indiana law requiring voters in that state to produce a government document with a photograph at the polls. In practical terms, this meant a passport or a driver’s license. Since less than a third of adults have a passport, the Indiana case focused largely on how many adults lack a license to drive. During oral arguments, several justices pressed the plaintiff’s lawyer for an answer. For reasons I cannot fathom, he kept using the number 43,000, for a state whose voting-age population is 4.6 million. In fact, the Federal Highway Administration, in an easily obtained report, says that 673,926 adult residents of Indiana have no license, which works out to a not trivial 14.7 percent of the state’s potential electorate. Had that percentage been stressed, we can conjecture that Justices Stevens and Anthony Kennedy might have shifted their position.
Requiring a driver’s license to vote has a disparate racial impact, a finding that once commanded judicial notice. To apply for the state ID card that Indiana offers as an alternative, moreover, nondrivers must travel to a motor vehicles office, which for many would be a lengthy trip. While licenses do not record race, Justice David Souter cited relevant studies of the race of license-holders in his dissent, which was joined by Justices Stephen Breyer and Ruth Bader Ginsburg. In one survey, made by the Department of Justice in 1994, black residents of Louisiana were found to be four to five times more likely not to have the official photograph needed for an identifying document. (Not to mention access to a car; recall how many couldn’t leave as Katrina approached.) A Wisconsin survey published in 2005 was more precise. No fewer than 53 percent of black adults in Milwaukee County were not licensed to drive, compared with 15 percent of white adults in the remainder of the state. According to its author, similar disparities will be found across the nation. 1
The Indiana decision will not only make it harder to add new people to the rolls; many who had previously voted without photo identification are now required to produce an official photograph. If Marion County (Indianapolis) has the same proportion of unlicensed voters as Milwaukee County, I count it as having more than 44,000 black residents who will be needing transport to motor bureaus to ensure that each item in their nondriver ID application has been properly filled in. Extended nationwide, this means that a lot of on-the-ground assistance is going to be needed.
Purging the Rolls
In 2002, Congress passed the amiably titled Help America Vote Act, presumably to thwart the recurrence of butterfly ballots and dimpled chads. To ensure that voters won’t face problems at their polling place, each state is required to maintain an electronic “statewide voter registration list,” to be linked to every precinct. States were also mandated to keep their lists current, eliminating the people who die or move away. One method is to mail letters to everyone on the rolls and expunge the names on those letters returned because the addressee could not be found. But black families tend to move more, especially in cities, and few think to notify election officials. When Ohio purged 35,427 returned names in 2004, a review found that the addresses were in “mostly urban and minority areas.” 2 Here too, getting back on the rolls can be like mending a mistaken credit rating.
Florida doesn’t depend on mailings. Rather, it uses computers to match registrants’ names against their Social Security numbers, which are then sent to Washington (actually Baltimore) to see if they match. Whoever devised this system should have known that the Social Security Administration is unable to match submitted names with numbers in 28 percent of the cases sent to it: for example, because they are maiden names of women who married or changed them back after a divorce. 3 Not to mention keyboard operators getting a single digit wrong. Florida also uses the help-the-voter act to check felony records, since convicted criminals there can’t vote. Oddly, it only requires that 80 percent of the letters in your name match with the name of someone with such a record. So if there’s a murderous John Peterson, the software disenfranchises everyone named John Peters. In view of the racial rates for incarceration, black voters are more apt to have names closely resembling those with felony histories.
Florida’s system for purging the voting lists was approved by a 2–1 ruling in federal circuit court this spring, Florida State Conference of the NAACP v. Browning . The dissenting judge, Rosemary Barkett, a Clinton appointee, was the only one to spell out the disparate racial impact. She noted that while black voters made up 13 percent of the scanned pool, they comprised 26 percent of those who were purged; while whites were 66 percent of the pool, they were only 17 percent of the rejected group. Again, if you have plenty of time, you can claim that the computer was mistaken and try to find documents that show you exist and were never a felon.
Voteless for Life
Proportional to the population, the United States leads the world in putting people behind bars, and currently has 2.3 million in its jails and prisons. Among inmates, black men and women outnumber Hispanics by more than two to one and whites by nearly six to one. This is another reason why a much higher ratio of black citizens will be unable to vote this year, because they are among either the 882,300 who are currently incarcerated or the two million who have served sentences but continue to be disenfranchised. According to Restoring the Right to Vote , a report by the Brennan Center for Justice at New York University Law School, 13 percent of black men cannot cast votes; in three states 20 percent cannot because they are locked up or formerly were.
Some states specify felonies that condemn the citizen to disenfranchisement for life. Alabama includes soliciting a child by computer, possession of obscene matter, and treason. Yes, some crimes are heinous; but completing a sentence is supposed to signify that a debt has been paid. Indeed, a desire to vote can be seen as showing a willingness to accept a citizen’s obligations. Virginia takes an especially harsh view of drug offenses, which is mainly why so many black Americans are imprisoned there, not least because it’s so easy to make such arrests. Released offenders must wait seven years before they can file a petition for their vote, which must be accompanied by seven documents and several supporting letters, plus another to the governor detailing “how your life has changed” and specifying “why you feel your rights should be restored.”
Mississippi has a similar regimen: with 155,127 men and women released between 1992 and 2004, only 107 petitions to have the right to vote restored were approved. The disenfranchisement of former felons in Kentucky has reduced its potential black electorate by 24 percent. 4
According to the Brennan Center report, only Maine and Vermont allow inmates to vote (as they can in Israel and Canada). Thirteen states, including Pennsylvania and Michigan, allow former convicts to vote upon their release from prison, while twenty-five bar voting until such ex-prisoners have completed their probation or parole. The other ten, like Alabama and Virginia, make the process of reattaining the right to vote so arduous that most people don’t try. Nor does there seem to be much sentiment in those states for removing the bans or lowering the barriers. So allowing one-time inmates to become full citizens will be a long-term campaign; it will not likely have much effect on the next few elections.
While a high black turnout will obviously help Obama, whether he becomes president will hinge on the decisions of white voters. (Most Hispanic-Americans list themselves as white or don’t designate a race.) In all, 94.2 million white Americans took part in the 2004 presidential election, as compared to only 13.5 million blacks; and 58 percent of whites supported George W. Bush against just 41 percent for John Kerry. So the Obama campaign, even if helped by external events, will have to change a lot of white minds.
There are already danger signs. In three states, race will in effect be on the ballot. Colorado and Nebraska are giving their residents a chance to ban affirmative action. The measures in both states carry the title ” civil rights initiative ,” at the urging of the black political activist Ward Connerly, who succeeded in outlawing affirmative action in California and has inspired similar campaigns in other states. The signs are that both measures will pass with votes to spare. This is what happened in California (1996), Washington (1998), and Michigan (2006), which tend to be liberal states. The reason isn’t hard to find. Putting affirmative action on a ballot encourages white majorities to identify themselves by their race. It’s their rights they are voting to restore.
What is seldom openly said is that a lot of white Americans feel racially aggrieved. They were represented by Barbara Grutter and Jennifer Gratz, whose petitions to end affirmative action reached the Supreme Court in 2003. 5 Their claims were that places which would otherwise have been theirs at the University of Michigan were given to less qualified black applicants. Thus, they argued, they were rejected because they were white, and there was an official preference for other races. In separate decisions, the Court narrowly upheld the law school’s affirmative action method, while striking down the undergraduate admissions procedure.
What is rarely mentioned is that neither Grutter nor Gratz were outstanding candidates. To put it crudely, they weren’t high on the “white list.” And a lot of whites see themselves in the same situation. They are the ones who don’t get admission or promotions, and thus feel they bear the brunt of affirmative action. Nor are they wrong about this, as Obama observed in his Philadelphia speech. Moreover, such feelings about affirmative action appear to be nationwide, even in states where it hasn’t been on the ballot. Obama’s word “bitter” may describe a good many blue-collar and middle-income families whose children have been rejected by their state’s university.
This explains why close to 65 percent of white voters in California, Washington, and Michigan supported the bans, and why similar proportions are expected to in Colorado and Nebraska this November. So a task of Obama’s campaign is to ensure that this white cause—which is what it is—does not carry over to the presidential contest. While only fourteen electoral votes are at stake, they could make a difference. Two Democratic senators, Patty Murray of Washington and Debbie Stabenow of Michigan, may have some useful advice. In 1998 and 2006, it was clear that many voters whose support they needed would also be supporting repeal of affirmative action. Yet Murray managed to win with 58 percent of the total, while Stabenow’s margin was 56 percent. How they managed to keep separate their own election and the vote on affirmative action, for example, by emphasizing economic issues, could be instructive.
As I write, several polls give Obama about 47 percent and McCain about 45 percent, a decline of several points for Obama from the polls of May and July. The rest of the respondents say they are undecided. At the same time the state-by-state estimates by pollster.com show Obama leading in electoral votes, with 102 such votes a “toss-up.” The numbers will probably have changed by the time you read this. Yet now and later, there’s a chance that the real percentages will be the reverse of those I’ve cited. Some people who are telling pollsters they’re for Obama could actually be lying.
Such behavior has been called the “Bradley Effect ,” after Tom Bradley, a black mayor of Los Angeles who lost his bid to be California’s governor back in 1982. While every poll showed him leading his white opponent, that isn’t how the final tally turned out. Things haven’t been far different in some other elections involving black candidates. In 1989, David Dinkins was eighteen points ahead in the polls for New York’s mayoral election, but ended up winning by only a two-point edge. The same year, Douglas Wilder was projected to win Virginia’s governorship by nine points, but squeaked in with one half of one percent of the popular vote. Nor are examples only from the past. In Michigan in 2006, the final polls forecast that the proposal to ban affirmative action would narrowly prevail by 51 percent. In fact, it handily passed with 58 percent. That’s a Bradley gap of seven points, which isn’t trivial.
Pollsters contend that respondents often change their minds at the last minute, or that conservatives are less willing to cooperate with surveys. Another twist is that more voters are mailing in absentee ballots, and it’s not clear how those early decisions are reflected in the polls. Yet the Bradley gap persists after voters have actually cast their ballots. Just out of the booth, we hear them telling white exit pollers that they supported the black candidate, whereas returns from these precincts show far fewer such votes. Thus they lie to interviewers they don’t know and will never see again. Barack Obama wants to think “white guilt [over treatment of blacks] has largely exhausted itself in America.” 6 I’m less sure. Almost all people who reject black candidates say they have nonracial reasons for doing so. And many undoubtedly believe what they’re saying. So I’m not persuaded that the Bradley gap won’t emerge this year. The Obama campaign would do well to print signs to post prominently in all its offices: ALWAYS SUBTRACT SEVEN PERCENT!
Since 1968, the Democratic Party has not been able to muster a majority of white Americans. Al Gore fell twelve percentage points behind among white voters in 2000, and John Kerry had a seventeen-point gap four years later. It all started with Richard Nixon’s strategy, which was initially aimed at the South. With the opening of electoral rolls to blacks, the then-dominant Democrats were becoming a biracial party, which disconcerted many whites. So Nixon invited them to join the Republicans, assuring them that they would not press to integrate their party. The formula continued to work when it moved north with the emergence of Reagan Democrats. By the 2000 GOP convention, there were only eighty-five black faces among the 2,022 Republican delegates. Some unknown proportion of white voters doesn’t want to support a party to which black Americans are drawn—“any more,” as Darryl Pinckney has noted, “than they would go on living on a street that got too integrated.” 7
I’ve been careful so far not to use the word “racism.” The term itself has become an obstacle to understanding. Once white people hear it, they tend to freeze, and start listing reasons why it doesn’t apply to them. After all, most Americans admire Oprah Winfrey, like Tiger Woods, and respect Colin Powell. Yet racism persists, albeit not publicly voiced, especially in the belief that one’s own is a superior strain. Here, however, not many whites regard Barack Obama as their inferior; effete or arrogant perhaps, but they don’t fault him on intellect. To some, indeed, he may seem too much the intellectual. Resentment of perceived black privilege is also involved, as we have seen with respect to affirmative action, and even fear of some kind of racial payback. Over half of a largely white sample told a Rasmussen poll that they feel Obama continues to share at least some of Reverend Jeremiah Wright’s positions on America.
On underlying sentiments, surveys aren’t much help. For example, in an ABC News /Washington Post poll in June, 20 percent of the whites who responded said a candidate’s race would factor heavily in their vote, while 30 percent admitted to feelings of racial prejudice. If the Bradley Effect was at work, as many as one third of the voters may count race as important. (We know of whites who are for Obama because they’d like to have a black president, which is also a racial reason.) In July, 70 percent of whites told a New York Times/ CBS News poll that they felt the country “is ready to elect a black president.” Of course; that’s what people feel obliged to say today. Yet some might have followed it up with “but not Barack Obama.” The surveys can’t measure white apprehensions over having a black man at the head of their government.
Michael Tomasky has said that to win, Barack Obama “will need to build multiracial coalitions.” 8 What seems more needed, in my view, are two parallel campaigns: a quiet one to assure a maximum black turnout, and a more public one to make the most of the white backing the Obama-Biden ticket already has. His rallies, appearances, and advertisements would benefit from featuring white faces, and they should be accompanied by endorsements from white military veterans, union leaders, police chiefs, and firemen. His black supporters will know what is going on, and not take this as a rebuff.
—August 28, 2008
John Pawasarat, The Driver License Status of the Voting Age Population in Wisconsin (University of Wisconsin–Milwaukee Employment and Training Institute, June 2005), p. 1. ↩
Reported Instances of Voter Caging , Brennan Center for Justice, June 2007, p. 3. ↩
Mike Slater, Laura Kyser, and Jo-Anne Chasnow, “New Barriers to Voting: Eroding the Right to Vote,” National Voter , June 2006, p. 9. ↩
Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford University Press, 2008), pp. 252–253. See also Jason DeParle, “The American Prison Nightmare, The New York Review , April 12, 2007. ↩
Grutter v. Bollinger , 539 U.S. 306 (2003); Gratz v. Bollinger , 539 U.S. 244 (2003). ↩
The Audacity of Hope (Crown, 2006), p. 231. ↩
Michael Tomasky, “Obama Needs More Than the Black Vote,” The Guardian , July 18, 2008. ↩