1 Life After the Voting Rights Act Life After the Voting Rights Act – Identifying Partisan and Racialised Trends in the Proposal and Passage of Restrictive Voter-Access Policy in the United States of America A dissertation submitted by 64111 to the Department of Government, the London School of Economics and Political Science, in part completion of the requirements for the MSc in Political Science and Political Economy. August 2017 9,960 words
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1
Life After the Voting Rights Act
Life After the Voting Rights Act – Identifying Partisan and Racialised Trends in the Proposal and Passage of Restrictive Voter-Access Policy in
the United States of America
A dissertation submitted by 64111 to the Department of Government, the London School of Economics and Political Science, in part completion of the requirements for the MSc in
Political Science and Political Economy.
August 2017
9,960 words
MSc Political Science and Political Economy: Candidate 64111
We are the only country [the USA] in the advanced world that makes it harder to vote rather
than easier. And that dates back. There’s an ugly history to that that we should not be shy about talking about.
(Former President Barack Obama - January 18, 2017)
The African-American community was great to us. They came through, big league…if they had any doubt, they didn’t vote, and that was almost as good because a lot of people didn’t
show up. (President Donald J. Trump - December 15, 2016)
To make it hard, to make it difficult almost impossible for people to cast a vote is not keeping with the democratic process.
The vote is precious. It is the most powerful nonviolent tool we have.
(Congressman John Lewis, Georgia: 5th District – 2012 & 2016)
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Life After the Voting Rights Act
Abstract The 2016 U.S. presidential race was the first in 50 years without the full protection of the
Voting Rights Act, which has key implications for American democracy. Over the last two
decades, there has been a dramatic increase in the proposal and passage of voter-access
policies. As of 27 March 20171, nearly a hundred bills to restrict voter-access have been
introduced in 31 states. The most common examples of restrictive voter-access policies
include photo identification and proof of citizenship requirements as well as registration,
absentee, and early voting restrictions, policies proven to disproportionately target minorities
and depress turnout with “surgical precision.” 2 Proponents argue that these policies
effectively deter voter fraud, while opponents assert that they demobilise voters who
traditionally favour the political left. Democracy is the cornerstone of the American
Experiment, but substantial portions of eligible voters have been barred from participating.
By building on the foundations of Bentele and O’Brien’s (2013) Jim Crow 2.0? Why States
Consider and Adopt Restrictive Voter Access Policies, I expand their study, in light of the
success of voter suppression policy over the past six years. Using random and fixed effects
Pooled-Poisson modelling approaches of publicly available state-level panel data, I identify
relationships between the count of proposed and passed restrictive state voter-access laws and
a variety of explanatory state factor variables. In order to determine which effects increase
the likelihood of participating in the latest Interstate Voter Registration Crosscheck Program,
I provide a model using a binary outcomes regression analysis. The results reveal strategic,
partisan, and racialised trends in the proposal of policy and participation in Crosscheck,
exposing significant weaknesses in the American democratic process.
1 The most current map can be found in the Appendix as Figure A.1. 2 Judge Diana Gribbon Motz (July, 2016) on North Carolina’s 2013 strict ID law
MSc Political Science and Political Economy: Candidate 64111
Table of Contents
ABSTRACT 3
LIST OF TABLES 5
LIST OF FIGURES 5
LIST OF ABBREVIATIONS 5
CHAPTER 1: INTRODUCTION 6 BACKGROUND AND MOTIVATION 7
CHAPTER 2: LITERATURE REVIEW 10 HISTORICAL BACKGROUND 10 THE DEBATE – VOTER FRAUD VS. VOTER SUPPRESSION 13 EMPIRICAL EVIDENCE AND MOTIVATIONS 16
CHAPTER 3: STUDY 19 RESEARCH QUESTIONS 19 METHODOLOGY 20 DATA AND SOURCES 21 DEPENDENT VARIABLES - TEXTUAL ANALYSIS 21 INDEPENDENT VARIABLES 26
CHAPTER 4: RESULTS AND ANALYSIS 28 PRESENTATION OF RESULTS 28 PROPOSED LEGISLATION 28 PASSED LEGISLATION 32 INTERSTATE VOTER REGISTRATION CROSSCHECK PROGRAM 35 FUTURE RESEARCH AND CONCLUSIONS 37
List of Figures Figure 1: Proposed Policy Between 2012 and August 2017
Figure 2: Passed Policy Between 2012 and August 2017
Figure 3: Voter Registration
List of Abbreviations ACLU: American Civil Liberties Union
ALEC: American Legislative Exchange Council
B&B: Bentele & O’Brien (2013) Jim Crow 2.0?: Why States Consider and Adopt
BC: Brennan Center for Justice at the New York University School of Law
Crawford: Crawford v. Marion County Election Board, 553 U.S. 181 (2008)
Crosscheck: Interstate Voter Registration Crosscheck Program
GOP: Grand Old Party
HAVA: Help America Vote Act
ID: Identification
NCSL-ELD: National Conference of State Legislatures’ Elections Legislation Database
POCR: Proof of Citizenship Requirements
RVAP: Restrictive voter-access policy
Shelby: Shelby County v. Holder, 570 U.S. 2 (2013)
SoS: Secretary of State
VRA: Voting Rights Act (1965)
U.S.: United States
MSc Political Science and Political Economy: Candidate 64111
Chapter 1: Introduction On November 8, 2016, 79,646 votes3 across three swing states, Michigan, Pennsylvania, and
Wisconsin, delivered 46 electoral votes to Donald Trump and thus the presidency of the U.S,
without a majority of the popular vote. While this margin was not as extraordinary as
Florida’s 540-vote margin that swung the 2000 Election, it represents the latest episode in a
trend of heightened competition in electoral victories. Crucially, it demonstrates that policies
designed to impact the voter franchise, with even trivial effects, could pose serious
consequences on electoral outcomes with limitless implications.
Between 2012 and August 2017, 84 restrictive voter-access policies were passed across 27
states. Bills have ranged from reducing early voting periods and registration restrictions to
the most stringent photo identification (ID) requirements, which set the stage for the latest
revamped effort to demobilise and disenfranchise American voters. These efforts to
manipulate the franchise have intensified in recent years, represented by the sheer volume of
legislation attempting to restrict electoral access. Most of which comes as a direct
consequence of the Shelby County v. Holder case, a landmark Supreme Court decision that
invalidated key provisions of 1965’s Voting Rights Act (VRA) and continues to present
significant concerns for precedent in American democracy.
In contemporary politics, a direct attack on voting rights would not be politically tolerated;
however, targeting voters throughout the registration and voting process under the guise of
ballot security remains feasible. At the centre of these legislations, there exists an on-going
war waged amongst academics, policymakers, and pundits alike on the trade-offs between
voter fraud and ensuring election integrity versus voter suppression. This has resulted in an
increasingly partisan issue, where Republicans primarily have adopted the former platform
and Democrats the latter.
In this dissertation, I argue that these policies are exclusionary reforms, strategically enacted
to establish a partisan advantage. The latest episode in U.S. history to manipulate the
electorate could be provoked by the warped incentives of parties to establish control of the
3 (Bump, 2016)
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Life After the Voting Rights Act
policy space, in light of demographic and political changes. I assess the validity of these
claims, by investigating their legitimacy empirically.
Background and Motivation This dissertation defines restrictive voter-access policy as any attempt to place restrictions on
either the registration process or opportunity to cast a ballot. This includes, but is not limited
to: voter-ID laws, proof of citizenship requirements (POCR), restrictions to early and
absentee voting, registration, and felon and social minority disenfranchisement. These tactics
represent new, fundamental features of the modern U.S. election system. State legislatures
continue to increase the hurdle for voters, where direct and indirect costs place
disproportionate burdens on certain segments of the electorate. This typically includes young,
old, ethnic minorities, and lower socio-economic groups.
Meanwhile, it is important to highlight recent trends in the electorate, which became more
salient following Barack Obama’s victory in 2008 that may provide insight into the
aggressive activity of restrictive legislation. This is representative of the electorate who stand
to gain or lose from these policies. Conventional wisdom acknowledges that Democrats
benefit from diversification and high turnout in elections.4 While the electorate becomes
younger and more diverse, party strategies deeply reflect their incentives to win elections, by
either recruiting new voters or minimising the turnout of the opposition. Coupled with the
significant tightening of electoral victory margins, this could mean a growing necessity to
renew these policies, going beyond a simple justification to ensure election integrity.
Over the last six years, the renewed struggle to shape voter-access intensified, as these trends
became more apparent. With new data, academics and legislators are able to contend more
confidently that voter fraud is not a widespread epidemic. In fact, these policies have proven
to depress turnout, by targeting certain groups with “surgical precision,”5 which have held up
in several federal court cases. In total, 569 policies were proposed and 84 passed across all 50
states (see: Figures 1 and 2).
4 Beaulieu (2014) 5 Motz (2016) on North Carolina’s 2013 ID law
MSc Political Science and Political Economy: Candidate 64111
Figure 1 – Proposed Policy Between 2012 and August 2017
Figure 2 – Passed Policy Between 2012 and August 2017
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Pivotally, the 2016 Election represents the first in 50 years without the full coverage of the
VRA, signalling one of the greatest levels of unchecked policy freedom between federal and
state powers. For this dissertation, such structural change provides the necessary justification
to re-examine these policies.
While several studies have looked at the consequences of these policies on turnout, few have
taken a macro-overview approach to examine their implementation. None, to my knowledge,
are published utilising the latest data from the 2016 Election and state legislature databases. I
build on the seminal foundations of Bentele and O’Brien’s (2013), hereby known as B&B,
methodological framework from Jim Crow 2.0? Why States Consider and Adopt Restrictive
Voter Access Policies, to analyse this policy puzzle once again, in light of the latest
developments shaping the political landscape, since its findings between 2006-2011. I
analyse two key variables: the effect of partisan control and demographic determinants of the
passage and proposal of restrictive voter-access policy, to test the question of whether these
results have strategic, partisan, and racialised motivations.
By utilising the National Conference of State Legislatures’ Elections Legislation Database
(NCSL-ELD), I categorise and count restrictive policies from 2012 to August 2017. Both the
proposed and passed counts are regressed utilising Pooled-Poisson modelling. These include
partisan control of state legislatures, party affiliations of both the Governor and Secretary of
State (SoS), the difference in party vote share in previous presidential elections, minority
turnout, state demographics, and perceptions of electoral fraud. Additionally, we look at how
these factors influence states’ participation in the controversial new ‘Crosscheck’
programme.
With the knowledge that these policies could depress turnout and have effects significant
enough to determine electoral outcomes, studies like this are necessary to understand these
political interactions. Empirical data regarding the motivation of legislation is crucial to
understanding the ‘new norm’ of American Democracy, especially as federal courts
continuously preside over voter discrimination lawsuits. This legal precedent is crucial for
not only individual voters but also the future legitimacy of the U.S.’s democratic process.
MSc Political Science and Political Economy: Candidate 64111
This dissertation structures as follows:
• Chapter 2 proceeds with an overview of the literature on the historical background of
voter rights, the debate between voter fraud and voter suppression, and the empirical
evidence that motivates this study.
• Chapter 3 outlines the study, including research questions, methodology, and data and
sources.
• Chapter 4 presents the results and interprets the analysis, before providing
conclusions and future research suggestions. Finally,
• Chapter 5 concludes with a summary, array of implications, and what this means for
the issues going forward.
Chapter 2: Literature Review
Historical Background Political scientists emphasise the central tenet of democratic theory, that “elections transfer
the will and authority of the people to their representatives in government, [where]
democratic government rests on the establishment of fair elections that can accurately capture
the will of the people” (Mycoff et al., 2007, p.2). In the U.S., voting rights were first granted
to land-owning white males (ACLU, 2005). While subsequent expansions of these rights
made it legal for more ‘different’ Americans to vote, recent efforts have successfully
minimised the presence of certain demographics at the polls.
Despite being a constitutional democracy, the American Experiment is tarnished by a long
history of restricting civil liberties. The fight to extend voting rights to freed slaves,
suffragists, and the poor has been the clarion call for the American progressive movement; to
many, voting is seen as being not only the cornerstone of democracy, but as a sacred right
and the basis of maintaining an accountable and legitimate government that represents all
peoples. Thus, it has remained a concern that the quality of democracy in America continues
to be threatened by problems of voter suppression, and thus, a defining characteristic of
American identity.
Lanning (2008) accurately characterises the history of extending the voting franchise as one
of “uneven progress” (p.434). For instance, while African-Americans were granted the right
to vote in 1870 with the passage of the 14th and 15th Amendments, it was only decades later
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Life After the Voting Rights Act
that poll taxes and literacy tests6 barred most of the black populace from the polls in the
American South, until the mid 1960s. He establishes a key theme, as history has witnessed
countless removals of voting rights. This is noteworthy “because it serves as a reminder that
progress is not inexorable, and further movement toward democracy is not inevitable”
(p.435).
Ellis (2009) highlights the strategic nature of politicians. Throughout history, there has been a
political struggle between allowing eligible citizens their vote and being “left prey to the
calculations of politicians attempting to game the electorate” (p.1027). Voters are susceptible
to exclusion from voting, which creates “an underclass of citizens…who will remain
marginalized.” Moreover, we are left with a “consistent theme, which underlies both the anti-
democratic history of the right to vote…” (p.1068) and now the future threat presented by the
accumulation of recent policies.
Crucially, the history of voter suppression further alludes to the strategic and racialised nature
of these policies. I argue that political leaders have seized the latest issues as a mechanism to
justify restrictive legislation, as a means to ensure voters’ confidence and election integrity.
This particularly came to a crossroads with the election of Barack Obama in 2008,
hallmarked by grassroots movements and a massive turnout effort, which increased the
number of registered voters by 5%.
However, in light of Democrats taking control of both the executive and legislative branch,
the spectre of voter fraud re-emerged in legislative discussion. In the aftermath of the 2010
Election7, lawmakers ramped up their efforts on proposing and passing restrictive voter
legislation, introducing 395 new restrictions in 49 states between 2011-2015 (Berman, 2015,
p.10). Legislative efforts became subtler, more nuanced and sophisticated with equal support
in the North and South.
While these laws initially faced scrutiny at a federal level, the latest structural transformation
in oversight has permanently altered the supervision of the policy space. The VRA was
painstakingly enacted at the height of the Civil Rights Movement in August, 1965. It was
designed to enforce the voting rights guaranteed by the 14th and 15th amendments of the 6 Direct example in Figure A.2 7 GOP gained 675 state legislative seats (Balz, 2010).
MSc Political Science and Political Economy: Candidate 64111
Constitution, in order to prevent discrimination. Congressman John Lewis called it, “one of
the most vital tools of our democracy” (2013). Its significance on voter registration can be
seen in Figure 3 below.
Figure 3 – Voter Registration (Berman, August 2017, Twitter)
1965 2012
White Black Gap White Black Gap
Alabama 69.2 19.3 49.9 75.6 68.7 6.9
Georgia 62.6 27.4 35.2 72 72.3 -0.3
Louisiana 80.5 31.6 48.0 77.3 77.1 0.2
Mississippi 69.9 6.7 63.2 82.4 90.6 -8.2
South Carolina 75.7 37.3 38.4 73 75.8 -2.8
Virginia 61.1 38.3 22.8 75.8 72.6 3.2
Total Combined 69.8 26.7 43.1 76 76.1 -0.1
Since its passage, the Justice Department stopped more than 3,000 discriminatory voting
changes (Berman, 2015, p.7). However in 2013, federal and states’ rights reached an impasse
at the Supreme Court. While the Act contains numerous provisions to regulate the
administration of elections, Section 4 and 5 instigated the Shelby case. Section 4 contained
the coverage formula, which determined the jurisdictions8 subject to preclearance in Section
5, based on their histories of voter discrimination. In a 5-to-4 vote, the Supreme Court ruled it
unconstitutional, as being out-dated and “no longer responsive to current needs,” placing an
“impermissible burden on the constitutional principles of federalism and equal sovereignty of
the states.” As a consequence, the Justice Department had few legal resources to challenge
election laws. This decision remains a historic blow to voting rights efforts. I stress here the
importance of the ruling in the context of this study, as several state legislatures, once
covered under preclearance, “have been far more active” (Fuller, 2014), passing laws to
purge eligible voters who do not meet the newest requirements.
8 Section 4 mandated Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia in their entirety; parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.
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Life After the Voting Rights Act
Nonetheless, with more young and minority voters coming of voting age, the collective
impact grows. Estimates suggest that in 2020, all Millennials will be of age and comprise
nearly “40% of all eligible voters” (Keyes et al., 2012, p.10). Despite their historical apathy
to voting and low turnout rates, these constituents are notably progressive, and their rising
influence could have “conservatives scared to the point of extreme measures.” This poses
significant reason for such party representatives to minimise the extent of their voting
powers.
When asked why laws are making it harder to vote at such a high rate across the country, Bill
Clinton responded, “This is not rocket science. They are trying to make the 2012 electorate
look more like the 2010 electorate than the 2008 electorate” (2011, in New Yorker, 2012). He
added that the “effort to limit the franchise” has been the most determined “since we got rid
of the poll tax and all the other Jim Crow burdens since voting.” Therefore, today’s struggles
related to voter suppression merely represent the latest episode in a series of efforts to restrict
civil rights, by targeting specific segments of society; an “old poison, in new bottles.”9
The Debate – Voter Fraud vs. Voter Suppression 2016 saw an election of many firsts, as President Trump took to Twitter to claim, “In addition
to winning the Electoral College in a landslide, I won the popular vote if you deduct the
millions of people who voted illegally” (November, 2016). While unverified, it represents the
latest allegation of widespread voter fraud ostensibly plaguing U.S. elections.
Voter fraud is defined as any illegal interference in the election process, to include double
voting, non-citizen or non-resident voting, registration fraud, and voter impersonation
(Ballotpedia). Although this reveals the relative ease in which voter fraud could be
committed, its actual occurrence in elections remains highly controversial and predominantly
partisan. Indeed, two key sides have emerged: those that argue voter fraud is a widespread
epidemic, and that “preventing, deterring, and prosecuting such fraud is essential to
protecting the integrity of our voting process” (Heritage Foundation, 2015), and those that
view it as principally a myth, proven “greatly exaggerated” and a “great deal of smoke
without much fire” (Levitt, 2007).
9 Berman (2015)
MSc Political Science and Political Economy: Candidate 64111
Here arises this “tension in the administration of elections between maximizing ballot access
and minimizing voter fraud” (Atkeson et al., 2009, p.66). It is important in a democracy to
protect voter confidence and ensure integrity, as these concerns significantly undermine the
legitimacy of electoral practices (Pastor, 1999) and reduce confidence in democratic
institutions (Gronke and Hicks, 2009). However, these values are sometimes directly at odds:
policies working towards each value have varied implications for election procedures,
making legislation “usually framed as a tradeoff between the goals of guaranteeing access
and ensuring integrity” (Ansolabehere, 2009, p.127).
The 2000 Election was a watershed moment for election protocol. Amidst nearly two million
disqualified ballots, the Help America Vote Act (HAVA) began to mitigate the
inconsistencies across the electoral infrastructure, to include updating voting technology and
establishing minimum administration standards. However, the specifics were left to each
state, allowing for varied interpretations to implement stricter legislation. Minnite’s (2010)
notes election law, a subject “once about as sexy as patent law” (p.1), has garnered
significant attention. Stewart (2014) insist that HAVA initiated a process that “stoked
paranoia” (in Bowler and Donovan, 2016, p.344) and eventually bipartisan support faded into
the battle between fraud and stolen elections (Fund, 2004) and voter suppression (Overton,
2013).
Prominent conservative think-tank, the Heritage Foundation10, has led most of the efforts to
lobby voter fraud as a “more widespread, frequent and serious problem than many people are
willing to admit” (Snead, 2017) with “mounting” and “incontrovertible evidence.” It is a
problem “as old as the country itself,” one that continues to threaten the legitimacy of “free
and fair” elections. As a result, there are “several policies states should adopt:” simple
“common sense” measures, sold to voters as a necessary burden to instil public confidence in
the democratic process. In the Crawford v Marion County Election Board Supreme Court
case regarding the constitutionality of strict-ID laws, Judge Posner noted how “exceedingly
difficult [it is] to manoeuvre in today’s America without a photo-ID. Try flying, or even
entering a tall building such as the courthouse in which we sit, without one” (2007). Candid
Republican lawmakers have even confessed the motivations for these laws, including
Pennsylvania representative, Mike Turzai, urging in 2012 that ID laws are “gonna allow 10 Paul Weyrich, first director of the Foundation, remarked in 1980: “I don’t want everybody to vote…our leverage in the elections quite candidly goes up as the voting populace goes down” (Blades, 2012).
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Governor Romney to win the state of Pennsylvania” (Weinger). Subsequently, public support
for these laws has followed, as fears have stoked.11
While the Heritage Foundation conducts legitimate research with verified policy solutions, I
argue that it fails to put its findings into context. One examination, finds that between 2000
and 2012, there were 2,068 reported instances of alleged voter fraud amongst 146 million
total voters (News21, 2016), approximately one one-thousandth of a percentage point.
Additionally, “only a tiny portion of the claimed illegality is substantiated” (Levitt, 2007,
p.3), while the rest have been “nothing more than speculation or…conclusively debunked.”
Another investigation finds three incidents of voter impersonation of one billion ballots cast
between 2000 and 2014, the specific voter fraud voter-ID laws are intended to target (Levitt,
2014); a voter is more likely to be struck by lightning than impersonate another at the polls
(Levitt, 2007, p.4). In fact, most evidence that “purports to reveal voter fraud can be traced to
causes far more logical than fraud,” (p.7), including bad “matching” against voting rolls and
common mistakes.
Famighetti et al. (2017) highlights numerous other studies, which “have consistently shown
that elections are not infected by widespread fraud” (p.1), reinforcing the wider consensus
that exists amongst academics. Khan and Caron (2012) pulled records from every state and
found the overall rate “infinitesimal,” while the Government Accountability Office (2014)
conducted a review that consistently found “few instances.” Ultimately, the “verdict is in
from every corner that fraud is sufficiently rare and that it simply could not and does not
happen at the rate approaching which would be required to ‘rig’ an election” (Levitt, 2007).
As a nation with one of the lowest turnout rates, attorney Santiago Juarez jests, “Hell, you
can’t get people to vote once, let alone twice” (2014 in Palast, 2016).
The cost-benefit analysis to commit voter fraud is more inconsequential. Unless done on a
systematic scale, swaying an election is nearly impossible. Individual voter fraud would be a
“foolish and ineffective way” to go about winning elections (Levitt, 2007). Any voter
accused runs the risk of a $10,000 fine and five years in prison (p.7). It is “time consuming,
expensive and scales poorly” (Ahlquist et al., 2014, p.9). From the calculus of voting,
11 Four in five Americans support ID laws (Gallup, 2016).
MSc Political Science and Political Economy: Candidate 64111
Minnite (2010) argues “voter fraud…is even more irrational than the individual act of voting”
(p.5).
Bowler and Donovan (2016) stress, “democracy requires that both winners and losers view
election outcomes as the result of a fair process” (p.341). This has crucial implications for the
functionality of political life with regards to legitimacy and can dictate the policy space.
Voter fraud may exist, but also “makes a popular scapegoat” (Levitt, 2007) to exaggerate and
distract from the real issues elections face. Therefore, voter fraud claims are used as a means
to justify policies that solve a non-existent problem, by empowering acts of widespread voter
suppression. It is nothing more than a “fabricated” reason necessary “to
disenfranchise…certain groups, such as college students, low-income voters, and minorities,
as possible” (Keyes et al., 2012, p.1).
Recent, unsubstantiated claims of voter fraud have come with swift action at a federal level
with the creation of the Presidential Advisory Commission on Election Integrity. This non-
bipartisan panel, vice-chaired by infamous Kansas SoS, Kris Kobach 12 , has been
controversial since inception, investigating “problems with voting that may undermine the
public’s confidence in elections” (Fessler and Neely, 2017). Its first action to request detailed
voter records from all 50 states has been met by fierce resistance amid privacy concerns to
utilise “names, addresses, birth dates, partial Social Security numbers, party affiliation, felon
status…for every registered voter…” (Fessler, 2017). 3,700 Coloradans have already
deregistered amongst thousands others across the country (Siu, 2017), representing one of the
first instances of self-imposed voter suppression. Only time will tell of the Commission’s
success, but it comes at a time when voting liberties are far from secure.
Empirical Evidence and Motivations The empirical analyses below allow us to make conclusions that go beyond the often partisan
and non-evidenced themes utilised by politicians and pundits. However, there are some
difficulties that arise when applying the scientific method to literature in this manner. While
pre-existing studies provide an overarching examination of the effects of restrictive voter-
access policies, the rapidly changing dynamics of the policy space make these findings often
out-dated. Additionally, interpretations of elections, exit polls, and electoral results each have
their own biases. Moreover, it is challenging to derive conclusions that remain relevant from
12 See Gabriel (2014); MacAskill (2012)
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Life After the Voting Rights Act
one election to another, further emphasising the necessity of a study to provide an overview
of the most recent research.
While the consequences of state voter-access policies on turnout are generally well
established13, we know significantly less about which factors lead to the policies’ initial
adoption. Scholars only recently devoted their attention to studying what motivates policy
from a macro-based perspective. The studies presented offer the foundations essential to
pursuing my own research.
Biggers and Hanmer (2015) examine the restrictions on policies that initially increased voter
convenience over the previous four decades (i.e., through early and absentee voting). They
argue that legislation that creates ‘costly voting’ participation have halted a liberalised voting
process, highlighting the “partisan nature of the debate” (p.203) and the correspondingly
“partisan concern about the political consequences of…convenience voting” (p.193). Using
historical data between 1972-2013, they found partisan influence decisions to adopt
restrictions to early voting. While this signals a “modest role” (p.203) on turnout, it reflects
the politicised nature of recent legislative changes.
Hicks et al. (2015) took a similar approach focusing on voter-ID legislation between 2001-
2012. They initially call these laws “an electoral reform that epitomises the partisan battle for
attaining an electoral advantage in contemporary American politics” (p.18). Republicans are
presiding over an “…electoral coalition that is declining in size; where elections are
competitive, the furtherance of restrictive voter-ID laws is a means of maintaining
Republican support while curtailing Democratic electoral gains.” This is especially relevant
following the 2008 and 2012 presidential victories, as Republicans try to “weather” the
demographic shifts favouring Democrats and take advantage of the razor thin margins needed
to tip an election. “Close elections reveal the ugliness of how the political game is played”
(p.18), by systematically expanding and contracting segments of the electorate.
Paraphrasing Schattschneider (1960), it is clear parties have the incentive to either win an
election by garnering more supporters, or have less of the opposition turn out. Consequently,
the efforts of state legislatures to enact heightened voter restrictions are merely “…indicative
13 See Lanning (2008); Cobb et al. (2012); Hajnal et al. (2016).
MSc Political Science and Political Economy: Candidate 64111
of the larger struggle for electoral advantage between two highly polarised and
demographically differentiated parties” (Hicks et al., 2015, p.19). While the exact impact of
strict-ID laws on turnout is not given, in this age of “elite polarisation and
precarious…majorities, a minimal impact may just be enough incentive for partisans to try
and game the system” (p.20). Therefore, instead of expanding mobilisation efforts by altering
issue positions and attracting new supporters, Republicans have turned to restrictive
legislation, proven to disproportionately affect Democratic voters. While this self-interest is
not entirely novel, it is not justified for a party to support institutional rule changes simply to
advantage their party.
Additionally, Hicks et al. (2015) study the contextual factors at a state-level, hypothesising
that partisan competition is the driving force for Republicans to enact these laws: as election
margins decrease, the efforts of legislators increase and are significantly greater in
battleground states. The legislation is not uniformly dispersed, as not all Republican-
controlled legislatures pushed for ID laws. Nonetheless, the “prevalence of Republican
lawmakers strongly and positively” influenced the adoption of ID laws in “electorally
competitive states” (p.18). Interestingly, they highlight the importance of public opinion, as
the majority of voters support laws deterring voter fraud, heightening the incentive for
Republicans to act strategically.
Public opinion can play a key role in this policy space. Beaulieu (2014) emphasises that
politicians are not the only actors that care about winning elections, and we must take into
consideration the voters who are motivated equally along party lines. Their survey-based data
suggests “respondents are able to differentiate between the relative incentives of Democrats
and Republicans where fraud tactics are concerned” (p.24), and whether these tactics are
problematic “…is heavily influenced by partisan bias.” This implies that “individual concerns
for fraud are shaped by a desire for their preferred candidate to win.” In addition to finding
evidence for voters’ bias on this issue, it enriches “our understanding of the forces that shape
voter confidence in the electoral process.” Bowler and Donovan (2016) apply public
perceptions surrounding restrictive laws and confidence in elections, and found that they
were highly conditioned on voters’ party identifications (p.340). Nonetheless, they conclude
that their study reinforces a well-established fact: the electoral process, and the way in which
it is conducted, significantly impacts how people perceive election integrity (p.353).
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Bentele and O’Brien (2013), the basis of my analysis, examines the causal factors in
proposing and passing restrictive voter-access policies. They find that states’ racial
composition, as represented by minority turnout and the proportion of the electorate that is
African-American, is significantly related to the actions of state legislatures between 2006
and 2011. Crucially, unlike the previous studies, none of their measures of partisan control or
electoral competition had a significant effect (p.1097). With respect to passed policies, this is
the opposite, as Republican composition in state legislatures, the presence of a Republican
governor, and competitiveness increased the likelihood of passing restrictive legislation,
coupled with the effects of minorities and current accessibility to the ballot (p.1099).
The importance of these policies and the future of American democracy cannot be
understated. Burden et al. (2014) emphasise how states shape the franchise as “…one of
central interest to political science” (p.107). Atkeson et al. (2009) accentuate that future
research demonstrates “important testaments to how we apply laws and treat citizens, a
fundamentally important question in democratic studies” (p.72). This dissertation narrows the
research gap in a much-needed effort update the data and arguments, in light of the latest
policy developments.
Chapter 3: Study
Research Questions The literature highlights the diverse motivations for the recently rising activity in restrictive
voter-access policies. If these policies could depress turnout and disproportionately affect
certain segments of the electorate, the importance of understanding them at a macro-level is
more critical than ever. Following recent electoral events and policy developments, the
necessity for a renewed examination into the nature of this legislation is significantly
warranted. By employing the foundations of Bentele and O’Brien (2013), we are able to re-
examine several research questions with crucial implications for future elections:
• Following B&B’s initial findings, are the proposal and passage of restrictive policies
still a strategic, partisan, and racialised affair throughout the 2012 and 2016 elections?
• Have the results been biased on the policies that have already passed prior to the 2012
Election? And as a result, have Republicans in primarily Democratic states put forth
more effort to propose legislation?
MSc Political Science and Political Economy: Candidate 64111
• To what extent could the recent intensification and homogenised nature of these
policies become indiscriminate in nature across demographics and partisan lines?
Therefore, the study is revised and expanded with new and updated data to encapsulate the
developments in recent voter suppression policy, especially prominent in the last two
presidential elections.
Methodology This study aims to empirically analyse and establish patterns in the legislative action of the
most common restrictive voter-access policies. While countless studies have attempted to
quantify their effects on turnout, few have examined the origin of the legislation at a macro-
level. This analysis continues a “unique empirical perspective” from B&B, “in which we
systematically examine which political, electoral, and contextual factors are associated…”
(p.1093) with states’ legislation actions on voting policy. By examining the passage and
proposal policy across all 50 states between 2012 and August 2017, I attempt to narrow this
gap with the newest election data, in order to evaluate the latest political agendas. I utilise
state-level longitudinal data through Pooled-Poisson modelling approaches, to examine
trends in the count of legislation and a variety of explanatory variables. Additionally, I
examine what influences participation in the new Crosscheck programme. This is not a
treatment-based analysis looking at legislative effects, but rather “identifies a constellation of
conditions that may shape the policymaking process in this area and subject them to
empirical test.”
The academic literature outlines that restrictive voter legislation could be derived from a
variety of origins: “a response to strategic political calculation…evidence of symbolic
politics and fear, interplay between the structural, partisan, and cultural confines of
policymaking, or all of the above” (p.1093). Consequently, the legislative process to pass
legislation is often constrained within the political context of each state legislature. Some
bills proposed can be expected to fail but are often “motivated by a genuine effort by
policymakers to achieve legislative change or by an interest in engaging in symbolic
politics.” Therefore, by considering both proposed and passed legislation, we can account for
these different perspectives. This, as B&B notes, makes a “contemporary, empirical
contribution…” to a larger literature by pressing “…the normatively important question of
what role political parties play in securing access to the ballot.” While the rhetoric and
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significance of voting rights continues to rapidly develop, concrete empirical evidence is
essential going forward.
Data and Sources
Dependent Variables - Textual Analysis
The dependent variable is a unique aspect of this study. Restrictive voter legislation takes the
form of an annual count, proposed or passed across state legislatures. We focus here on five
different policies: voter-ID and POCR, restrictions on early and absentee voting, registration,
and felon enfranchisement. I pooled and analysed data from the NCSL-EDL, in order to
identify and classify restrictive proposals. Additionally, some standout language for each
policy type is detailed in Table 1; the judicial landscape for any such law is in constant flux
as courts challenge their intent and legitimacy. Therefore, understanding the language
deployed in these bills is crucial to evaluating their motivation.
Voter Identification Laws
Voter-ID laws 14 are the most recent manifestation of “structural disenfranchisement”
(Donziger, 2001) and the “current chapter in America’s long-running saga over voting rights”
(Alth, 2008, p.202). These laws require voters to provide a form of government-issued ID
before they register or cast a ballot. State requirements vary in whether a photo-ID is
requested. A wide-range of literature has looked at the impact of these requirements on
turnout for the both the direct and indirect costs of acquiring and presenting an ID. Their
findings argue that these laws create barriers to voters and disproportionately affect
minorities and those less likely to have an ID. These requirements are some of the “most
burdensome” (BC, 2016) and have been utilised as an economic force “to block people of
lower economic status…” (Ellis, p.1025-26) as the least flexible and “able to afford the cost
of voting exacted by the law.”
Proof of Citizenship Requirements
Proof of citizenship requirements (POCR) are built on the rhetoric that surrounds the topic of
“illegal” immigration and have garnered significant attention over the last decade. This is
perhaps best evidenced by President Trump alleging that upwards of 3-5 million votes were
cast by undocumented migrants and ineligible voters (Twitter, 2016). POCR demand a voter
14 See Figure A.3
MSc Political Science and Political Economy: Candidate 64111
to prove their status prior to registration and voting. Studies highlight the difficulty in
acquiring the documentary evidence necessary to satisfy these requirements (Nielson, 2014)
and those who are most likely to be affected by additional hurdles to the ballot.
Registration Restrictions
Registration restrictions include any policy impacting voters directly or third-party
organisation that works to register voters. This includes reducing time windows, eliminating
same-day election registration, limiting the provisions of the Motor Voter Act, and restricting
voter registration drives. Registration drives are usually targeted with additional protocol,
requiring groups to disclose their actions with the state, partake in mandatory training, and
are forced to meet short deadlines.
Absentee and Early Voting Restrictions
Legislative developments in absentee and early voting before 2000 were a primary example
of policy to increase accessibility. However, recent efforts have reversed this trend and
reduced effectiveness.15 Current restrictions include reducing the time to apply for and accept
absentee ballots and providing for additional ID requirements. As the U.S. does not make
Election Day a national holiday, these laws are particularly harmful to voters that cannot get
time off work or are forced to stand in longer lines. The “Souls to the Polls” movement is a
notable example of those targeted by restrictions (Etter, et al., 2016).
Felon Participation Restrictions
The U.S. is one of most stringent nations for denying the vote to citizens with felony
convictions (Pilkington, 2012). Legislation to restrict the participation of felons includes
provisions to ban voting for life, tougher penalties for voting while ineligible, and increasing
the ineligibility period. By 2014, 6 million Americans had their voting rights stripped, as
some states prohibit voting, even after decades of serving sentences for often nonviolent
crimes (Gonchar, 2014). Many of these laws specifically target the African-American
population: 8% black adults are ineligible to vote, relative to 1.8% of the rest of the adult
population (Pilkington, 2012). Former Attorney General Eric Holder described these
prohibitions as “out-dated practices” and “vestiges” of the discriminatory policies utilised by
the South after the Civil War. 15 Wisconsin struck down a law restricting the hours for in-person voting: “The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote...” (Peterson in Barnes and Marimow, 2016).
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Interstate Voter Registration Crosscheck Program
Crosscheck is the latest initiative promoted to prevent voter fraud, by ensuring that “accurate
and current voter registration rolls are maintained” (HAVA, 2003). The same type of system
was initially designed to track foreign travelers in the wake of September 11th but shut down
“over concerns about racial profiling” (Palast, 2016). Launched by Kris Kobach in 2005, state
participants in the Program contribute to databases on registered voters, in an attempt to
prevent “double voting.” As of 2016, the Program has expanded to 27 states but remains
controversial. Updating voter rolls is essential to accurate elections, but the act of “voter
caging16” threatens the Program’s legitimacy.
Only a handful of voter fraud cases have flagged as more than clerical errors, as several
reports highlight concerns regarding its methodology being built on inherent racial bias. The
system is promoted to match first, middle, and last names, birth dates, and the last four digits
of Social Security numbers. However, an investigative report on the Georgia and Washington
voter lists found more than 1 million potential cases, as the system only matched first and last
names. Statistical analysis “found that African-American, Latino and Asian names
predominate” (Palast, 2016) ran the risk of being wrongly accused, as Census data highlights
how “minorities are overrepresented in 85 of 100 of the most common last names.” The
unreliability of the data (Oregon SoS in Kromm, 2014) resulted in several states dropping out
of the system, to include Alaska, Washington, Oregon, and Florida. This programme
represents the latest efforts to partake in active voter suppression. To our knowledge, this
dissertation is one of the first to consider Crosscheck as a determinant variable in an
empirical analysis of this variety.
Table 1 provides a breakdown by bills’ policy type and a variety of standout language used
by state legislatures. Common themes include the necessity to protect the integrity of the
voting process and strengthening election laws.
16 Voter caging: the act of challenging the legality of voters’ registration status.
MSc Political Science and Political Economy: Candidate 64111
Table 1 Textual Analysis of Several Prominent Restrictive Voter-Access Policies
Type of Policy State Bill Date Status Statement of Purpose
Voter ID Maine LD 199 15/1/2015 Failed “An act to strengthen Maine’s election laws by requiring photographic identification for the purpose of voting.”
North Carolina HB 589 12/08/2013 Enacted “An act to restore confidence in government by establishing Voter Information Verification Act to promote the electoral process through education and increased registration of voters…requiring voters to provide photo ID before voting to protect the right of each registered voter to cast a secure vote with reasonable security measures that confirm voter identity as accurately as possible without restriction…”
Connecticut HB 5892 08/04/2013 Failed “To safeguard the integrity of the state's voting process.”
Proof of Citizenship
Florida HM 1225 11/03/2016 Failed “Urges Congress to amend certain federal laws to remove obstacles to states exercising their authority to protect the integrity of elections by ensuring that only United States citizens are registered to vote.”
Michigan HB 5221 13/12/2011 Carryover - Failed
“Voter registration applications shall contain a statement requiring an applicant to submit satisfactory evidence of United States citizenship with his or her application and stating that the application shall be rejected if satisfactory evidence of United States citizenship is not provided.”
Tennessee SB 352 26/05/2011 Enacted “The general assembly recognizes that the right to vote is the right of legal citizens; and whereas, it is of the utmost importance to ensure integrity in our elections within this state…”
Registration New Hampshire SB 3 10/07/2017 Enacted “Any case where supervisors are unable to verify the applicant's domicile or where evidence exists of voting fraud shall be promptly reported to the secretary of state and to the attorney general, who shall cause such further investigation as is warranted.”
Virginia SB 871 11/01/2017 Failed “Relates to third-party registration groups…requires any individual or organization that will be distributing and collecting voter registration applications to register as a third-party registration group with the Department of Elections prior to engaging in any voter registration activities…”
Montana SB 405 23/04/2013 Adopted “Protects the integrity of State elections by ending late voter
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registration on the Friday before election day and eliminating election day registration…”
Absentee & Early Voting
Ohio HB 250 21/08/2013 Failed “For all other voters, other than overseas voters and absent uniformed services voters, who are applying to vote absent voter’s ballots other than in person, ballots shall be printed and ready for use on the thirty-fifth seventeenth day before the day of the election.”
Alabama HB 463 01/03/2012 Failed “Bill would require a voter voting an absentee ballot to submit personal identification when making the application to vote by absentee ballot.”
Felon Franchise
Texas HB 3776 09/03/2017 Failed “The registrar shall cancel a voter's registration immediately if the registrar receives notice from the secretary of state under Section 18.068 that the voter has been convicted of a felony.”
Virginia HJR 539 09/01/2013 Failed “Provides that no person convicted of a felony shall be qualified to vote unless he has completed service of his sentence, including any modifications of the sentence, and made payment in full of any restitution, fines, costs, and fees assessed against him as a result of the felony conviction. The proposed amendment removes the power of the Governor or other appropriate authority (such as another state's law) to restore the right to vote to a felon.”
Mississippi SB 2227 02/05/2012 Enacted “Provide that vote fraud shall be a disqualifying conviction for purposes of voter registration pursuant to…the Mississippi Constitution of 1890.”
Crosscheck New Jersey AR 190 21/11/2016 Pending “Urges certain state chief election officials to join Interstate Voter Registration Crosscheck program conducted by Kansas Secretary of State.”
New Hampshire HB 620 08/01/2015 Failed “Requires the secretary of state to enter into an agreement to share voter information and data through the Interstate Voter Registration Crosscheck Program.”
Texas HB 2372 05/03/2013 Failed “To maintain the state-wide voter registration list and to prevent duplication of registration in more than one state or jurisdiction, the secretary of state shall cooperate with other states and jurisdictions to develop systems to compare voters, voter history, and voter registration lists…”
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Independent Variables
There are a wide range of state-level factors, which could affect the likelihood for states to
consider restrictive voter-access policies. The primary variables are outlined here.
Partisan Control & Electoral Competition
The first set of factors focus on partisan control, specifically the percent of each state
legislature that is Republican, state party competition, and dummy variables to indicate
whether the state government is divided, has a Republican Governor or SoS. As
demonstrated, Republicans traditionally focus on the voter fraud perspective of voting rights
issues, and therefore support bills more restrictive in nature, creating a partisan divide.
Additionally, recent trends suggest that incentives to suppress the vote have grown in the
context of competitive elections. Therefore, I anticipate the difference in party vote share
from the previous presidential election to increase the chances of supporting restrictive
policies. With the Electoral College as the primary institution determining presidential
victories, the more competitive a state and its impact in swaying additional electoral votes,
the greater the payoff for suppressive efforts. Such an incentive, however, is not balanced
across both parties, as we have seen that the voters likely affected support Democrats.
Therefore, they have little reason to depress the turnout in their own base.
Voter Behaviour & Voter Suppression
This set of variables assesses the effects of turnout and impact on the frequency of supporting
restrictive policies. The literature documents that additional hurdles to voting are more
arduous for those of lower socio-economic status, minorities, and the elderly. Therefore, I
should find restrictive legislation more prominent where these voters turn out at higher rates.
This is studied across the states with higher minority turnout and its changes as well as class-
biased turnout and its changes, all collected from the U.S. Census Bureau. Additionally, I
look at the legislative response to overall turnout, as higher rates typically favour Democrats.
Demographics
Since we analyse the effects of turnout in previous elections, the responses of strategic
politicians are retrospective, “one that may involve initial electoral setbacks” (p.1094).
Therefore, calculated attempts to support restrictive policies may rely on “purely
demographic indicators deemed troubling for their re-election or party.” Including the
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percentage of African-Americans, non-citizens, and the elderly (over 65) across states tests
this motivation. History already dictates the significance of African-Americans and their
battle for the franchise, so the racial composition of each state could continue to support the
voter suppression narrative. The logic is similar for non-citizens, particularly in light of the
anti-immigration rhetoric afflicting the post-globalisation political climate. It is common
knowledge (Pew Research, 2014) that the elderly vote at a rate higher than any other age
group and disproportionately support the GOP.
Incidence & Perceptions of Electoral Fraud
The current discussion on voter fraud is more prominent than ever. While the actual
occurrence of these activities remains controversial, policymakers argue that restrictive
requirements are an effective means to deter the supposedly widespread epidemic. However,
contemporary politics have reached a generally uncontested conclusion in that fraud is
extremely rare. Nonetheless, this comes as a control variable acquired from News21’s
database containing all cases of alleged election fraud by state from 2000-2012.
The impact of lobbying and interest groups is also crucial to the U.S. policymaking process.
The American Legislative Exchange Council (ALEC) is a well-known and involved
organisation, “the largest nonpartisan membership organisation of state legislators dedicated
to the principles of limited government, free markets and federalism” (ALEC.org). Crucially,
they are responsible for the organisation and drafting of several legislative efforts, to include
37 of the 62 voter-ID bills introduced in 2011 and 2012 (Berman, 2015, p.261). Their
influence suggests that state legislations with a higher percentage of ALEC-affiliated
members could increase the likelihood of promoting restrictive policies. This data is merely
an estimate compiled from the ALEC Exposed Project, since membership is not publicised.
Therefore, readers should take this into consideration when interpreting its effects.
The citizen ideology measure used in B&B is not included, as the measure to empirically
proxy states’ political culture, has not been updated since 2013 and would not provide an
accurate representation.
MSc Political Science and Political Economy: Candidate 64111
Previous Relevant Policy & Control Variables
Creating and implementing these policies can often be costly. Therefore, an indicator to
assess the likelihood that a state may be constrained by its own economic resources is
included through real state revenue per capita.
The final variables highlight the constantly evolving nature of this issue. Two control
variables record whether a state has already passed some degree of voter-ID or POCR and if
a state makes available either early or no-excuse absentee voting. States with more accessible
election protocol could be subject to greater efforts intended to suppress the vote. These
control variables allows us to take into account policy developments that have already passed
across the states.
Chapter 4: Results and Analysis
Presentation of Results These models 17 assess the significance and magnitude of each variable implicated in
restrictive voter-access policy. Here, I make small modifications to the approach B&B
utilised to accommodate the specifics of the dataset.
Proposed Legislation
We firstly assess which state-level determinants are correlated with higher annual counts of
proposed legislation. The cross-sectional dataset coupled with a count as a dependent variable
leads me to utilise a standard Pooled-Poisson modelling method. Both random effects and
fixed effects are compared, as utilising a fixed effects approach alone has its costs in this
dataset, invalidating any use of time-invariant variables, to include control variable indicators
for ALEC-affiliated state legislators and voter fraud. Nonetheless, Hausman tests are
conducted on the models, in order to assess the validity of the differences between the
effects-based approaches.
Additionally, I note that B&B perceive the percentage of state legislature Republican
indicator to suffer from endogeneity issues, rendering this approach inherently biased, and
leads them to a GMM approach with instrumental variables. Nevertheless, I am advised that
17Models are run using Stata version 13.0.
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this method is not necessary since no case of endogeneity can be established from our