National News

Black Turnout in Alabama Complicates Debate on Voting Laws

Posted December 24, 2017 3:11 p.m. EST

MONTGOMERY, Ala. — Even before a defiant Roy Moore stood at a lectern this month and refused to concede the Alabama Senate race, one political reality was clear: An extraordinary turnout among black voters had helped push Doug Jones to a rare Democratic victory in this state.

That turnout, in which registered black voters appeared to cast ballots at a higher rate than white ones, has become the most recent reference point in the complicated picture about race and elections laws.

At issue, at a time when minorities are becoming an increasingly powerful slice of the electorate, is how much rules like Alabama’s voter ID law serve as a brake on that happening. The turnout by black voters in Alabama raises a question: Did it come about because voting restrictions were not as powerful as critics claim or because voters showed up despite them?

Whether blacks and other minorities vote has become an evermore crucial element in the national political calculus. Minority voters, who lean overwhelmingly Democratic, were 29 percent of eligible voters in 2012 and 31 percent in 2016; by 2020, the figure is expected to rise to nearly 34 percent.

LaTosha Brown, an Alabama native and a founder of the Black Voters Matter Fund, which backed voter-mobilization efforts in the Senate contest, said the impact of voter suppression in Alabama was real, but that the policies were sometimes a motivating factor.

“Historically and traditionally, there has been a strong voice of resistance to those that are undemocratic,” she said. “I don’t think that this is new; I think that has always been the role that black voters, particularly in the Deep South, have played.”

But research, particularly of voter ID laws in Texas, Wisconsin and other states, provides an imprecise picture of how much similar laws suppress turnout. And Eitan Hersh, a Tufts University political scientist who contributed to the analysis of Texas’ strict voter ID law, said research indicated that voter ID laws could alter very close elections but might not be as influential as some critics claim.

“These laws are complicated to assess,” Hersh said. “Alabama was a place where there was a lot of campaigning, and when campaigns liven up, you have a lot of mobilization efforts” that could offset the effect of an ID law on turnout.

Alabama, where a bloody history of battling for the right to vote gave birth to the Voting Rights Act of 1965, and a lawsuit led to the 2013 Supreme Court case that dramatically weakened the law, is seldom described as a model for voting rules.

Like only 12 other states, Alabama does not permit early voting, which is disproportionately used by minorities and the poor. Its restrictions on voting by people with felony records were recently relaxed, but remain among the nation’s toughest and likely curb black turnout. The state’s voter ID law, which was challenged in federal court, threatened to disenfranchise at least 100,000 registered voters, many of them black or Hispanic, according to the NAACP Legal Defense Fund. And a panel of federal judges ruled this year that 12 state legislative districts had been gerrymandered to dilute African-American voting power. The congressional map is also gerrymandered.

Since 2010, 23 states, mostly under Republican control, have enacted laws requiring voters to show identification before casting ballots, all in the name of curbing a voter-fraud threat that almost all experts and election officials say is largely mythical. Six states have reduced early voting days or hours, seven have stiffened requirements to register and three states have made it harder for people with felony convictions to regain the right to vote.

A lawsuit challenging aggressive purging of voter rolls in Ohio, where thousands of legitimate voters have been removed from the rolls, will next month go before the U.S. Supreme Court; the case could give similar plans a red or green light. The court is also considering arguments over the constitutionality of partisan gerrymandering, which computer technology has turned into an evermore powerful tool.

On the other hand, in many states, most of them divided or Democratic leaning, access to the franchise continues to expand: Since 2015, nine states have passed laws to automatically register new voters when they interact with government agencies. Colorado, Oregon and Washington have moved almost entirely to mail-in ballots and turnout has bumped upward as a result. Nearly three-quarters of states allow early voting, no-excuse absentee voting, or both.

In the Alabama vote, there were reports of scattered troubles, including technology problems, voter ID disputes, issues with voters improperly classified as inactive and long lines at many polling places.

But the gravest fears of Alabama’s critics were not realized. Some of that reflected years of advocacy by voting rights groups, including the concerted pushback that led the state, in 2015, to back away from a plan to close 31 driver’s license offices in rural areas, many of them predominantly black.

Alabama’s secretary of state, John H. Merrill, said allegations of irregularities, from the left and right, in the Dec. 12 election were not borne out. “It’s just people making things up, and they think they can because of what they’ve observed that happened before or what our history has been,” said Merrill, a Republican.

Still unclear is what role voting restrictions, including voter ID, are playing on turnout here and elsewhere. Exit polls are preliminary, but the ones available in Alabama suggest the share of blacks who cast ballots — roughly 41 percent of the African-Americans voters — exceeding the 35 or so percent of whites who turned out. The divide likely reflects a robust black turnout and modest participation from whites who were unenthusiastic about Moore, whose already controversial candidacy was dogged by accusations of sexual misconduct.

One recent academic study concluded that the historic turnout gap between white and minority voters increased sharply — as much as fivefold — in states with the strictest voter ID laws, producing a “clear partisan distortion” favoring Republicans. In Texas, where federal courts have invalidated parts of one of the nation’s toughest ID laws, a detailed analysis concluded that 3.6 percent of white registered voters in Texas lacked any legally acceptable ID — and 5.7 percent of Hispanic voters, and 7.5 percent of African-Americans. But among more likely voters who cast ballots in the 2010 and 2012 elections, only 1.4 percent lacked a valid ID. An estimated 600,000 registered voters lacked a photo ID that qualified them to vote under the law.

Still other studies in Texas and Wisconsin concluded that confusion over voter ID laws meant that more people who actually had valid IDs but believed they did not stayed home on Election Day than did voters who actually lacked identification.

The Wisconsin study suggested it was mathematically possible — though far from certain — that the number of voters who stayed home in the 2016 general election exceeded Donald Trump’s 22,748-vote margin of victory there. Some critics of voter restrictions took that as proof of the impact of such laws, but among scholars, caution is more the rule.

“It depends on where, and it depends on who,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who also oversaw voting-rights issues in the Obama administration Justice Department. “There are real, live instances where positions are taken to keep eligible people from showing up at the polls or to make it needlessly harder to vote. But it’s not nationwide, and it’s not all the time.”

Benard Simelton, president of the Alabama branch of the NAACP, said he believed that the voter ID law had led some people, many of them poor, to stop trying to participate in elections at all.

“As long as that’s a requirement, what are people to do if they haven’t been able to obtain the required voter ID?” Simelton said. “My gut tells me that people who don’t have it have given up.”

Some voting rights advocates stress that the relevant measure should be whether people were unable to vote, not whether particular policies determined the outcome of the election.

“Voter suppression might not be attributable in every instance to changing an election outcome, but it’s significant to people who have barriers in front of them at the ballot box,” said Myrna Pérez, deputy director of the democracy program at the Brennan Center for Justice at the New York University School of Law. She added: “The country is going to be poorer if we only care about voter suppression when it affects the outcome.” The outcome, however, is increasingly the standard by which voting-rights cases are decided. The Supreme Court’s Shelby County v. Holder decision, which dramatically scaled back the Voting Rights Act, relieved scores of states and local governments with a history of bias from the need to prove that new election rules did not discriminate. Since 2013, the burden of proving discrimination — and the cost of detecting and litigating it — has been shifted to minority voters and the groups that represent them.

To many, that’s a standard that rankles.

“I do think that very committed, focused people will find a way” to cast ballots, said Brown, co-founder of the Black Voters Matter Fund. “But is that fair? If you put a rock on my foot and I beat you in the race, that still doesn’t make it OK that you put a rock on my foot.”