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October 31, 2012

Election 2012: Sneak attack

How big business wants to shrink the electorate

Astonishing. Remarkable. Sinister. Those are words that come up when confronting the wave of voter identification laws that has swept through more than 30 Republican-dominated state legislatures in recent years. The measures sound innocuous enough: When a voter shows up to the polls on Election Day, he or she must present valid photo ID in order to cast a ballot.

The goal, proponents say, is to combat in-person voter fraud — claiming to be someone you’re not and entering a vote in their name. But study after study, including an exhaustive investigation by Arizona State University’s Walter Cronkite School of Journalism and Mass Communication, has found almost no evidence that in-person voter fraud occurs. Culling through 5,000 documents over 10 weeks, the News21 project found only 10 cases of in-person voter fraud since 2000: about one case for every 15 million eligible voters.

What’s more, requiring state or federally issued ID at the polls has been repeatedly shown by independent analyses to impose a disproportionate burden on specific demographics: the poor, the elderly, students and people of color.

“We’ve heard it time and time again; it really is a solution in search of a problem,” said Stephen Spaulding, Washington D.C.-based staff counsel for the nonprofit citizen’s lobby group Common Cause.

“We do have election administration problems in the country — with machines breaking down, assuring that votes are counted accurately — and we need to focus our attention there,” he said. “This threatens everyone’s right to a free and fair election.”

Barred at the ballot box

If there’s anyone approximating a symbol of what’s wrong with what are referred to as “restrictive” or “strict” photo ID laws, it’s Viviette Applewhite. At 93, Applewhite is a black Pennsylvania resident who marched with Martin Luther King Jr. and has cast her ballot in almost every election since the 1960s.

Her purse was stolen years ago, and with it her Social Security card. What’s more, since she was adopted as a child, the name on her birth certificate differed from that used on other official documents. Her adoption itself lacked any kind of record.

Under Pennsylvania’s voter ID law, which was passed in March 2012 and has since become a legal lighting rod in the battle over voting rights, Applewhite could not obtain the required identification to participate at the polls.

Her case, and the case of others similarly affected by the law, was taken up by the American Civil Liberties Union of Pennsylvania, the Advancement Project, the Public Interest Law Center of Philadelphia, and the D.C.-based law firm Arnold & Porter. The lawsuit, which alleged the state’s voter ID law violated Pennsylvania’s constitution by denying citizens the right to vote, was denied a preliminary injunction and bounced on appeal from district court to the Pennsylvania Supreme Court, which sent the challenge back to the lower court for reconsideration.

On Oct. 2, Pennsylvania Judge Robert Simpson granted the preliminary injunction, allowing people like Applewhite to vote in the 2012 election without photo ID and without having to cast a provisional ballot — a measure that in the some states allows non-ID holders to vote, but which requires them to return to the polling place after the election to confirm their identity.

Barring any further litigation, Pennsylvania voters will be required to present photo ID in future elections, but for now Applewhite and others in her situation will be free to vote as they always have. In fact, as the case was being appealed in August, Applewhite received an ID using her 20-year-old Medicare card, proof of address and a state document affirming her name and Social Security number (a process that also required her to take two buses to the licensing office).

That’s a lot of hassle to exercise a right Applewhite has enjoyed for 50 years, but she’s not alone. According to best estimates, strict voter ID laws could disenfranchise millions if adopted nationwide.

According to figures from the Brennan Center for Justice at New York University, as many as 11 percent of adult U.S. citizens do not have any form of government-issued photo identification, accounting for more than 21 million people. Among that group, 18 percent of citizens 65 or older don’t have government-issued photo ID (more than 6 million seniors), and more than 5.5 million African-American adults lack photo ID — 25 percent of eligible black voters. Meanwhile, U.S. citizens, regardless of ethnicity, age or gender, who make less than $35,000 “are more than twice as likely to lack current government-issued photo identification as those earning more than $35,000 a year,” the Brennan Center reported, meaning at least 15 percent of voting-age Americans in the low income bracket lack valid ID.

On top of that, as many as 7 percent of voting-age citizens (more than 13 million) don’t have access to documents proving they’re citizens, further complicating the process of getting valid ID.

“These ID laws, and this notion that they don’t impose a cost on citizens, is farcical,” said Spaulding, with Common Cause. “We know that in some states it costs money to get documents and get an ID. There are a number of voters who are in a catch-22; they’re 90 years old, they were born at home with a midwife, they don’t have a birth certificate. There’s the expense of getting those documents, there’s the expense — especially in rural areas — of making the trip to get the ID. This notion that these IDs are ‘free’ does not pass the smell test.”

But it’s on that notion that voter ID laws have been ruled constitutional.

Indiana’s restrictive voter ID law, which is seen as the test case for similar laws, was upheld by the U.S. Supreme Court in 2008 because it was not found to be burdensome.

“Clearly that’s not the case,” Spaulding said.

The sneak attack

It doesn’t take much analysis to figure out the upshot of proliferating voter ID requirements: fewer seniors, students, people of color and low-wage earners at the polls. And it doesn’t take much to see who would most benefit from a whiter, more middle age, affluent electorate.

“I don’t think it’s a coincidence that the legislators carrying these bills are not Democrats,” said Lisa Graves, executive director of the nonprofit watchdog group Citizens for Media and Democracy.

According to Graves, this newest push to limit the franchise traces its roots to the 1990s and the enactment of the National Voter Registration Act, or “Motor Voter,” under President Bill Clinton. The measure made it easier for voters to register. African-Americans, particularly, registered in high numbers.

“In response to that law, Southern states started proposing changes to the laws to make it harder to register. Those bills went nowhere; they were perceived as racist … and sort of languished for a number of years,” she said.

Then came the election of President George W. Bush, “and the right wing started pushing this theme of voter fraud,” Graves said. The Bush administration even tried to redirect the voting rights section of the civil rights division to push this idea of voter fraud. “U.S. attorneys were fired because they didn’t do enough to assert non-existent voter fraud.”

Despite pressure from the new Bush administration, strict voter ID laws remained few and far between, with only Indiana and Georgia enacting restrictive ID measures in 2005. But, Graves said, “these things were bubbling.”

When Barack Obama won in 2008, it was in large part due to huge voter turnout in cities and among students and African-Americans. Republicans, having lost the White House, also found their party losing ground in state legislatures. According to data compiled by News21, 62 voter ID bills have been introduced in 37 state legislatures since 2009, with the bulk of the measures introduced or adopted in 2011 and 2012. According to the Brennan Center and News21, a handful of states have active, strict photo ID laws for voters and more than a dozen others are pending — either hung up in court, awaiting pre-clearance from the Department of Justice, or too recently enacted to be in effect. (Kentucky does not require photo ID to vote and there is no such legislation pending.)

“It’s remarkable,” said Jennie Bowser, Denver-based senior fellow with the National Conference of State Legislatures. “I’ve tracked election legislation since late 2000 and everything that happened in Florida, and I’ve never seen so many states take up a single issue in the absence of a federal mandate.”

Graves, meanwhile, fingers the culprit.

“Suddenly the Indiana law was dusted off the shelf and put out there as a national model that every state should be pushing,” she said, “and ALEC is behind it.”

The bill mill

ALEC stands for the American Legislative Exchange Council, and according to some, it is nothing less than a shadow lawmaking body that draws its strength from corporate money.

“ALEC isn’t simply a think tank or a gathering of lawmakers, it is a corporate-funded operation that pushes a corporate message and a conservative message,” said Graves. In July 2011, her group, Citizens for Media and Democracy, made public 800 internal documents on its website, AlecExposed.org, proving ALEC’s cloaked hand in crafting “model legislation” meant for introduction in statehouses around the country.

A call to ALEC’s media relations representative for this story went unanswered, but the organization’s ideological bent is clear enough on its website: a “nonpartisan individual membership organization of state legislators which favors federalism and conservative public policy solutions.”

Registered with the Internal Revenue Service as a 501c3 nonprofit, ALEC boasts around 2,000 member legislators — the vast majority Republicans — who pay a nominal fee for membership, and upwards of 300 corporate and other private-sector members who pony up between $7,000 and $25,000 for the privilege of getting together with sympathetic lawmakers at lavish retreats.

Broken up into various task forces on public policy, ALEC members, both from the public and private sectors, write model bills, which are then voted on and, if ratified, carried home by ALEC legislators for introduction. The strategy has been successful. ALEC brags on its website that each year about 1,000 pieces of ALEC-written or ALEC-inspired model legislation end up getting introduced in the states, with an average 20 percent becoming law.

Despite this, and even though the organization has been active for nearly 40 years, ALEC has remained under the radar. Nonetheless, its impact on policy reads like a greatest hits compilation of controversial bills: from changes to U.S. gun laws like the Florida “stand your ground” legislation made infamous by the Trayvon Martin shooting (a measure crafted with help from the NRA, a prominent ALEC member), to state-based efforts to overturn or circumvent the Affordable Care Act, to recent measures limiting teacher union powers and handing portions of student instruction over to for-profit education companies. Even Arizona’s hotly contested immigration law started life as an ALEC-approved “model” bill.

“There’s a whole set of bills that are advancing that corporate agenda to privatize prisons, privatize education,” Graves said. “And by privatize, I mean profitize.”

Profit is the name of the game

According to figures from ALEC’s own IRS filings from the past three years, the organization raked in more than $21.6 million from corporations (with members including Exxon Mobil, GlaxoSmithKline and Pfizer), foundations like the Charles G. Koch Charitable Foundation, and nonprofits including the NRA and Family Research Council. Private-sector contributions account for nearly 98 percent of ALEC’s funding, while the dues paid by member lawmakers, pegged at about $50, came to just $250,000.

In exchange for these hefty — though tax-deductible donations — ALEC’s private sector members get to ensure that individual pieces of ALEC legislation serve a narrow band of specific corporate interests.

More “insidious,” as Graves put it, is ALEC’s drive against voting rights.

“It’s deeply cynical and quite sinister — an outlandish effort by ALEC and others to make it harder for Americans to vote,” she said. “At the end of the day, depending on which analysis you’re looking at … it’s possible that these measures remove maybe 1 percent from the pool of votes that would be part of the election.”

Analysis by News21 found that more than half of the 62 strict ID bills introduced in legislatures since 2009 were based on (or copied from) ALEC’s sample voter ID bill. These measures serve no particular business master, rather, they strike at the final weapon the public possesses to stem the tide of corporate-crafted legislation: the ballot box.

“The essence of a democracy, and the essence of a representative democracy in the United States, is that we elect people to represent people,” Graves said. “The question is whether our representatives are going to represent us, or if they’re going to represent the interests of global corporations and, in some cases with ALEC, foreign corporations.”

As for why big business would support limiting the franchise, it’s simple: Corporations want to bring down barriers to doing business, and Republicans are happy to oblige. If Republicans don’t win elections, then corporations don’t see those barriers lifted. The solution: eliminate the competition. If voting rights get in the way, well, like the notorious mob accountant Otto Berman once said, “Nothing personal. It’s just business.”

“I think it is a little more class-oriented,” said Alexander Keyssar, professor of history and social policy at Harvard. “The core interest in the suppression that’s going on is partisan, it’s not racial. If African-Americans voted predominately Republican, or 50/50 Republican, I don’t think their neighborhoods would be targeted for suppressive efforts. I think that it’s a community that now votes 95 percent Democrat, and if you want to knock out Democrat interests, that’s a good place to start.”

Pushback

With increasing media scrutiny and public outrage, ALEC’s operations — and specifically its voter ID push — may well hurt both its bottom line and the bottom lines of its corporate members.

In the wake of the Trayvon Martin shooting in Florida earlier this year, nonprofit civil rights group Color of Change criticized ALEC for crafting the “stand your ground” law and called on its members to urge corporations to drop their support for ALEC. To date, 41 corporate ALEC members have stopped funding the group, including Walmart, Coca Cola, Kraft, Amazon, Johnson & Johnson, and General Motors.

Following exposés highlighting ALEC’s involvement with voter ID laws, the organization shut down its voting and elections task force.

Losing corporate members and disbanding task forces is one thing, but ALEC may have an even bigger problem. In April, Common Cause filed a whistleblower complaint with the IRS alleging that ALEC’s lobbying activities make it ineligible for 501c3 status. Based on 4,000 pages of internal documents — some obtained through public records requests and others from inside sources — Common Cause maintains that, “The evidence shows ALEC has an agenda, that they track where their model bills are introduced, that they send out ‘issue alerts,’ which include updates that go to state legislators where ALEC bills or ALEC-related bills are being introduced, sometimes targeting committees or task force members and including talking points,” said Nick Surgey, general counsel for Common Cause.

“Essentially, ALEC says they do not lobby. They are a 501c3, which means they’re a charity, and as a charity they’re able to do some lobbying, but it’s limited and you have to disclose it,” Surgey said. “We have 990s going back many years for ALEC, and consistently they tell the IRS that nothing they do is lobbying.”

If the IRS finds ALEC is in breach of the rules, the organization would have to reincorporate as a 501c4 and fully report its activities as lobbying.

Common Cause’s whistleblower complaint is still working its way through the system, and Surgey said these kinds of cases take “quite awhile.” Still, he maintains that keeping pressure on ALEC is important for more reasons than just recouping tax revenue.

“It’s also about making sure that these really important, fundamental debates happen in the open,” Surgey said. “We got into looking at ALEC out of a concern that corporations have too powerful a role in our political system; they have a disproportionate power in the legislatures for a variety of reasons, and ALEC really seems to be the epitome of that.” 

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