In the end, the voter-fraud scare didn't help Missouri Republicans. Schlozman may have been filing indictments, but the state Supreme Court had struck down Missouri's new voter-ID law a month before the election, finding that it contravened the state constitution. On Nov. 7, Democrat Claire McCaskill defeated incumbent Republican Jim Talent by fewer than 50,000 votes out of more than 2 million cast. The voter-ID law would've required about 170,000 registered voters to apply for a new ID just to be allowed to vote again.
We can't count on the U.S. Constitution to protect the election process. The Constitution does not explicitly protect the right to vote, and the conservative majority on the Rehnquist and Roberts courts has proved friendly to anti-turnout measures. As Mark Graber of the University of Maryland pointed out recently, the court echoed right-wing rhetoric about voter fraud in a little-noticed 2006 opinion allowing Arizona to implement its restrictive voter-ID law. "Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised," the court's per curiam opinion stated. This is the argument that voter-restrictionists have fallen back on. There may be no voter fraud, but if people think there is, then we should tighten up anyway. That's the argument used in Missouri (with support from the White House), where studies showed elections were mostly clean. As Graber noted, to restrictionists, "such a 'feeling' offsets the interests of voters who are disenfranchised by voter-ID laws by actually driving honest citizens out of the democratic process!"
So we can't count on federal courts; and not every state constitution contains a guarantee as specific as Missouri's provision guaranteeing the vote to "all citizens of the United States." In 2007, the right to vote is a little like the swimmers in the film "Open Water" -- still afloat, but encircled by hungry sharks who sooner or later will move in for the kill.
The answer is in the hands of the new Democratic majority in Congress. Though most Americans believe that the states are in sole charge of voting and elections, the framers at Philadelphia recognized that state officials might abuse their authority over voting. That's why Article I, Section 4 of the Constitution gives states the initial power to supervise federal elections -- but adds that "Congress may at any time by Law make or alter such Regulations." This provision was hotly debated during ratification; but federalists insisted that Congress needed this backstop power to protect the republican character of the new government against state meddling.
The new Congress so far has considered only a few measures to protect the right to vote: Rep. Rush Holt, D-N.J., has proposed a bill to require voting machines to keep paper trails; Sen. Barack Obama, D-Ill., wants to outlaw certain deceptive practices aimed at voter suppression.
But such defensive measures amount to little more than swatting sharks' noses. We're going to need a bigger boat. In the 1970 case of Oregon v. Mitchell, a fractured court approved a statute lowering the voting age to 18 in federal elections, even if states insisted on keeping it at 21 for state voting. (The 26th Amendment subsequently lowered the age to 18 for all elections.) How about a bill making clear that every American who is not under active sentence for felony has a right to vote for those who will govern the country? The bill could go on to say that states could require reasonable identification for new registrants, but outlaw onerous provisions like Missouri's, which would, for example, have required that married women produce legal documentation of their name change. (I reviewed the Missouri law with my mother, who has voted in every election since 1944. We determined that, had she lived in Missouri, she would have been barred from the polls in 2006.)
For that matter, why not just move the entire country to the vote-by-mail system we use in my home state of Oregon? It's quick, it's convenient, it leaves a paper trail, and we have had no credible accusations of voter fraud since it was adopted during the 1990s -- and a stunning 86 percent of registered voters cast ballots in the 2004 presidential election.
Voter fraud is a phony issue, and if restrictionists shape the dialogue, sooner or later our right to vote will become property of the Karl Roves, who will use the machinery of the criminal law to recreate the electorate in their own image.
The real issue is the right of every American citizen to vote, the right of the people to choose their rulers, rather than the reverse. Who can really oppose that, if asked about it in the light of day?
About the writer
Garrett Epps is a Virginia native and a former reporter for the Washington Post. He teaches constitutional law at the University of Oregon. His new book is "Democracy Reborn: The Fourteenth Amendment and the Fight for Civil Rights in Post-Civil War America" (Henry Holt & Co.)
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