Michigan: No ID for Mail-In Voters as Economic & Racial Discrimination?
Post originally published on https://www.3PMonline.com, Third Party Mechanic (Nov. 16, 2020)
No matter one’s partisan affiliation or beliefs, it is troubling on behalf of all voters that it is possible poor minorities (who voted by mail) were treated differently than poor non-minorities (who voted in-person) for Michigan’s 2020 election. Should the manner of voting dictate the gated requirements for casting a ballot? Given our nation’s history, should it matter, or have chickens come home to roost?
In the weeks preceding the 2020 general presidential election, commentators widely acknowledged that there would be an unprecedented surge in mail-in ballots nationwide due to the pandemic. In anticipation, several states relaxed the procedural rules for voting to allow for greater ease of access. In numerous “battleground” states, the shifting standards have become a flashpoint for scrutiny post-election, especially as the outcome remains uncalled in various states. More broadly, however, is the issue of whether the patchwork of rules impacts not only the counting of votes (e.g., which ballots are “legitimate”), but also which voters were “eligible” to cast a decision. We look at Michigan.
TWO SETS OF RULES
On November 6, 2018, Michigan passed a constitutional amendment (“Voting Policies in State Constitution Initiative”), which permits no-excuse absentee voting. Any citizen who elects to vote by mail may do so.
What is of note is that, since 1996, Michigan has also required all voters who cast a ballot in-person to present photo or government identification. The state’s Supreme Court upheld the legitimacy of that procedure in 2007. Qualifying proof of identification includes:
· Michigan driver’s license or state-issued ID card
· Driver’s license or personal identification card issued by another state
· Federal or state government-issued photo identification
· U.S. passport
· Military ID with photo
· Student identification with photo from a high school or accredited institution of higher learning
· Tribal identification card with photo
If a voter does not have proof, he can still submit an affidavit swearing to his identity under threat of perjury, and stating he cannot meet the requirement. Michigan will then count the vote.
Critics often compared Michigan’s ID requirement to a “poll tax” because it more greatly impacted elderly, low income and minority voters, who are less likely to have ID. In the state Supreme Court decision upholding the practice, Justice Robert Young Jr. instead focused on the affidavit procedure as a savings clause, which ameliorates the otherwise restrictive effect of the screening measure. The dissenting justices wrote: “[T]he state has no compelling interest in requiring ID because there isn’t any evidence that in-person voter fraud exists in Michigan.”
In 2016, Michigan’s Republican-led House passed an even more stringent screening proposal, whereby voters submitting affidavits and provisional ballots would have had to return within ten (10) days to a local clerk’s office to provide proof of identification.
- SEE: Strict Voter ID Law Approved in Michigan House, The Detroit News (Dec. 7, 2016)
As recently as Spring of 2020, the United States Commission on Civil Rights issued a report advising the state of Michigan that the affidavit procedure could still impact elections because voters who lack ID, or who cannot readily access it, simply do not understand the procedure or find it discouraging:
- Voting Rights and Access in Michigan, A Report of the Michigan Advisory Committee to the U.S. Commission on Civil Rights (April 2020).
The Commission quoted a voting rights strategist who testified that:
“[E]ven though Michigan’s photo ID law allows use of an affidavit to substitute for a photo ID, it has negatively affected voting rights in two ways. First, many voters have complained . . . in every election about election officials and poll workers who violate Michigan’s photo identification laws by failing or refusing to offer the affidavit to voters who lack photo ID. Secondly, imposition of even a somewhat lenient photo ID law creates confusion among voters that is likely to depress turnout.”
The significance of these observations is that the vast majority of one major party’s votes (Democrat Joe Biden) in the 2020 general election were by mail, while the overwhelming majority of the other party’s (Republican Donald Trump) were in-person. The result is a bifurcated system where one party’s voters were required to present identification at the polls, whereas the other party did not have a screen.
TWIN DEMOGRAPHICS
Although commentators and experts identify elderly, low income, and minority voters as being disparately impacted by ID requirements, their emphasis is generally centered on low income minority voters. However, candidate Donald Trump had a distinction that has bedeviled the traditionalist of his party since his 2016 bid for the presidency: Trump’s base includes a heavy concentration of low-income non-minority voters, including the elderly.
- SEE: Where is Voter Discrimination the Worst?, PBS Frontline (Aug. 6, 2014) (“We need to look at what we call ‘second-generation barriers,’ how laws have a negative impact on minorities’ ability to vote, and what that means.”).
- SEE: Voting Rights in the Modern Era of Minority Disenfranchisement (2017), available at: http://digitalcommons.law.msu.edu/king/255. (“Minorities overwhelmingly vote [D]emocratic. Compared to Republicans, Democrats hold an 80% . . . advantage among blacks. Therefore, disenfranchising minorities benefits the Republican Party.”)
- SEE: Leahy Chairs Senate Judiciary Committee Hearing on Deceptive Voter Practices and Intimidation Tactics in Federal Elections (June 26, 2012).
In 2012, Leahy stated: “According to the National Conference of State Legislatures, since 2001 nearly 1,000 voter ID bills have been introduced in 46 states. Only three states . . . do not have a voter ID law and did not consider voter ID legislation last year. Recently passed laws make it significantly harder for millions of eligible voters to cast ballots in 2012. These include young voters, African Americans, those earning $35,000 per year or less, and the elderly.”
Thus, we have to ask how did the ID requirement affect turnout among those citizens who supported Donald Trump? One could also question whether any in-person voters who arrived to vote in 2020 were turned away, as cautioned in the US Commission’s report.
The US Commission’s report (p. 16) states, “People of color are more likely to lack photo identification.” Yet, that conclusion does not disclose how the Commission parsed economic data, as well as racial demographics? If we were to take only low-income non-minorities, will the result more closely approximate those in minority communities? If so, what are the implications for the Michigan 2020 vote? What lessons for both parties?
If security is such a tremendous concern, why did the Republican-led legislature not also require identification or affidavits from those filing absentee ballots? It is counterintuitive for identification to be required if one appears, but not required if one is not present to be verified. If one accepts the premise that ID requirements are “poll taxes,” then the Michigan 2020 vote warrants another look.
Commentators have observed that the patchwork of voter ID laws nationwide and the resulting inconsistent legal holdings in state courts leave room for “as applied challenges” to voting requirements. A ourt may still declare a voter ID law unconstitutional “as applied to the particular facts that a case presents” if there is sufficiently compelling evidence that the law burdened the rights of individual voters. For example, is it legitimate that those who mailed-in ballots do not need ID, but those who walked-in were required to produce one, if the impact split starkly along racial and/or economic lines?
We cannot know at this point whether such evidence has been accumulated, and whether it approximates patterns and arguments that those who advocate for expanded voting rights for racial minorities have made for decades? Accordingly, it is not clear to what extent the lawsuits pending nationwide will thrust the Republican Party’s challenger into the position of having to craft arguments that his own party has historically refuted, thereby reshaping their bargain with the poorer members of their electorate? Perhaps, once an “outsider,” always an outsider (even after 70-plus million votes).
Post originally published on https://www.3PMonline.com, Third Party Mechanic (Nov. 16, 2020)
