Rocking the Vote

As we have noted previously, 2011 saw a dramatic retrenchment of restrictions on voting and voter registration throughout the United States. Ostensibly designed to address the (nonexistent) problem of voter fraud, these laws contain numerous draconian measures that, at bottom, make it harder to register to vote and harder for citizens to exercise their fundamental right to the franchise. In Florida, for example, the State now requires all voter registration forms to be returned to local election boards within 48 hours of collection. Failure to do so, will result in the collector being fined. As early as last September, the Brennan Center was able to report that the League of Women Voters, a group that has been registering Floridians to vote through all-volunteer efforts since 1939, was suspending its voter registration efforts in Florida. 

Today, the New York Times reports:

Florida, which is expected to be a vital swing state once again in this year’s presidential election, is enrolling fewer new voters than it did four years ago, as prominent civic organizations have suspended their voter registration drives because of what they describe as onerous restrictions imposed last year by Republican state officials.

Florida is likely not alone. It is likely that, unless a number of these laws are overturned, November 2012 will see fewer registered youth voters, voters of color, and unmarried women voters than would otherwise be expected. Worse yet, a smaller percentage of these will cast ballots. And, to make matters even worse, these effects will be likely be most pronounced in traditionally conservative states that have seen the most rapid growth of minority populations. You see, as the population of older White men and married White women is eclipsed nationwide, Republicans have determined the only way for their party to hold onto power is to suppress the vote of these non-White and non-married women populations.

Fortunately for our Republic, a number of these states are covered by the Voting Rights Act and the Justice Department has already refused to clear certain vote restriction laws in covered states. Unfortunately, many more of these states aren't covered. And those states justify their laws as does Florida:

The state took issue with what it called the “pervasive sky-is-falling hyperbole” of the civic groups, saying that the new law does not impinge on their free speech rights. The state said that the law was designed to make sure voters had their registrations handed in quickly and that outside groups did not overwhelm local elections officials by hoarding their registration forms and delivering them all at once near the deadlines.

This formulation--painting new voting restrictions as necessary to ensure orderly elections and election administration--has been well received by the judiciary, especially in ballot access cases. Here, as in there, the state must make defend its actions as being narrowly tailored in the service of a compelling state interest--and that its measure is not overly burdensome on the citizen. The compelling interest is orderly elections. And, though one can think of numerous other means by which the state may more narrowly achieve this end--particularly given that overwhelmed Boards of Election are few and far between and could be remedied by hiring more staff temporarily--the judiciary is likely to endorse it because, historically, the courts have been unmoved by the notion that larger costs imposed on civic organizations for pursuing their ends (signature gathering, voter registration gathering) are overly burdensome.