A Thoughtful Critic of My Take on North Carolina, and a Brief Response

As I presume with anyone who writes these days on current controversies, I get a lot of emails disagreeing with my positions. Many are intemperate; some are filled with obscenities.

But some are really thoughtful and heartfelt.  Below the fold I reprint in full an email from a thoughtful critic from North Carolina about what I’ve written about the state’s new voting laws (as in this Slate piece and this piece from the Daily Beast). The article the reader references is a reprint of my Slate column. I also offer a brief response. I will publish any reply that comes from the reader later on.

Here’s the email:

I read with much interest your piece titled “N.C.’s voter suppression law” in the Wilmington (NC) StarNews this morning. I have several comments regarding it that I would like to share with you. I convey them as constructive criticism, so I hope you accept them as such.
You characterize the new North Carolina voting law as the “most restrictive voting law we’ve seen since the 1965 enactment of the act” (Voting Rights Act of 1965), and later describe one of the elements of restriction to be reducing the number of early voting days from 17 to 10. In 1965, there was no “in person” early voting, so to suggest that reducing early voting in North Carolina from 17 days to 10 is part of the “most restrictive voting law we’ve seen since 1965″ is very misleading. The piece states that ”the bill cut a week off early voting in the state (used by 70% of African American voters in 2012)”. It isn’t clear whether you meant 70% of blacks used early voting or whether 70% used early voting in the week that has been cut-off. I personally think you meant the former, but the wording is such that many could construe your intent to be the latter.
The reason 70% of black voters voted early over the course of 17 days is because they had 17 days in which to do so. I suspect that the same number of voters, if not more, will now vote over the course of 10 days. Most things in life seem to expand to fill the space available – this is simply another example of that.
Do you not remember when in-person voting was done nation-wide on the same day? Was that practice an example of voter suppression? I doubt it.
But my larger concern with your piece involves the absence of the “whys” – you criticize elements of the new law without addressing why the law contains the provisions that it does and the concerns of legislators that enacted this law. You make it sound as if the only reason the law was enacted was to intentionally “suppress the vote” of Democrats. In this regard, your piece sounds quite similar to those of Ari Berman – he never discusses the reasons for the law’s content either.
This strikes me as an intentional absence of objectivity.
A particular target of criticism of the law concerns disallowing the use of college photo IDs for voting purposes – and again, the real reason for this provision is absent from your piece.
If student IDs are permitted to be used, the State of North Carolina would be formally acknowledging (and accepting) that ALL students enrolled in North Carolina universities and colleges are legal residents of the state and ALL are legal residents of the college towns in which they attend classes - in fact, all students enrolled in North Carolina universities and colleges are NOT legal residents of the state and not all are legal residents of the towns in which they attend classes. As such, they are not permitted to vote in either North Carolina or the towns in which they are students. It might also enable illegal aliens to vote. 
If students’ homes of record are out of state, they are not legal residents of North Carolina. If their cars are registered in another state, they are not legal residents of North Carolina. If the preceding determine the student to be an out-of-state student, so too does tuition paid by parents from another state. Likewise, if the preceding are true and the student goes “home” to another state in the summer months, he is not a legal resident of North Carolina. Student IDs do not validate state of residence, nor nationality. Therefore, the student cannot legally vote in North Carolina using student IDs, irrespective of the motive assigned to North Carolina legislators by Democrats.
You stated in the piece that students have a constitutional right to register and vote where they go to school – that is true, but it is only true if they are residents of the state in which they go to school. The constitution largely leaves voting laws up to the states and states do not permit residents of other states to vote in their elections. You left that information out.
There are two other problems concerning non-state resident student voting at the college-age level: 1.) if an out-of-state student votes in the state where he attends school, what keeps him from voting absentee in his home state as well (assuming he registers within 30 days of an election in his school’s voting jurisdiction or employs same-day registration)?, and 2.) eventually, students graduate and/or leave and the town is left with the voting decisions of temporary “residents”.
The reason a concealed weapons permit is acceptable is because it is a state-issued identification which verifies one’s legal residence in the state and also verifies the person is permitted to be in possession of a firearm- student IDs do not. Being legally permitted to own a firearm also means the person is not disqualified from voting because of a felony conviction - many persons lose voting rights if convicted of felonies – such persons would not be permitted to own a firearm.
You wrote that there is a “lack of evidence of voter impersonation”, so why impose special burdens on voters? When I vote I’m asked my name, I’m read my address and I’m asked if it is correct. That’s all. There is nothing in the voting process designed to catch “voting impersonators” – hence, few impersonators are caught. The fact that few voter impersonators are convicted does not mean there is little occurrence of fraud. The reality is that it is almost impossible to get caught. The few who have been caught must have been really stupid.
I had a long phone conversation with the commissioner of the board of elections in my county in North Carolina. I gave him a scenario I had created to illegally vote and I asked him if I could get away with it. He recited the law and the penalties for doing so, and then told me that it would be almost impossible for me to get caught if I followed the method I explained to him. I could vote, perhaps, 20 or 30 times on election day if I could get around to that many polling places. If I voted early, I could vote many more times – with little, if any, likelihood of getting caught.
There are many voting precincts around the United States in which more people regularly cast votes than there are registered voters.  Yet because no one is individually identified and convicted, we are told by Democrats that there is no voter fraud. In some places, “Vote early and vote often” is not an anachronism.
It is my understanding that a cast vote is a public record and all public records are subject to public review and “challenge”. If that understanding is correct, why did you not say as much rather than allude to “gumming up the works”. How does the remote likelihood of a “challenge” dissuade legitimate voters from “showing up in the first place”? You don’t specify. In Iraq and Pakistan, people risk their lives voting and we are “dissuaded from showing up in the first place” because a ballot may be challenged? What does that say about American voters and our election process? If the voter is legitimate, what exactly is the concern?
While I recognize that voter registration is automated these days, to expect validation of identity, legal residence, invalidation of previous state residence and a determination of qualification to vote to all be performed by election workers on the same day they are supporting an election is unreasonable. Errors will be invariaby made by election staff under such conditions. Despite having asked many people why election day registration is necessary, no one has yet been able to reasonably explain the need  to me.
If you want to know why the North Carolina law makes it illegal to pay voter registration card circulators by the piece, please read up on historical registration practices in Cook County, Illinois and the State of Nevada – it leads to corruption via fictitious voters. Certainly, you are aware of these occurrences.
No one can explain the need for 16- and 17 year-old voter pre-registration to me. If the purpose is to get a future voter to claim political affiliation early so that he can then be “worked” by party adherents up to his first election day, that I understand. Absent that, I fail to see the purpose. What is the real loss of having this removed from the voting law? Leaving it in the voting law subjects minors to potential political pressure from unethical mature pols who will “guide” the eventual voter in his election choice. Why do we need that? And why are only Democrats in favor of this practice?
As for the most complained of element of this law, the voter photo ID, many states have voter photo ID requirements. Those that have passed Supreme Court muster are not “voter suppression tools”. No one is being denied access to the polls. Yet, article after article by writers such as Berman, and apparently yourself, contend these IDs are voter suppression tools while absolutely no objective evidence to support such claims exists. Nor have there been any reasoned arguments supporting this view. To the contrary, more minority voter turnout was recorded in Mississippi after the photo ID law than prior to it.
Opponents of voter ID laws have repeatedly projected massive turnout reductions of minorities in states with voter photo IDs – but they never actually materialized. Susan Myrick, elections policy analyst for the Civitas Institute stated that in Georgia 600,000 disenfranchised voters were predicted because of voter photo IDs, yet only 30,000 people were issued free IDs. Court case after court case have determined that voter ID laws, when done correctly, do not disenfranchise voters.
In summary, I fail to see how the new North Carolina voting law is “the most restrictive voting law we’ve seen since 1965″. What legitimate voters are being restricted? How many legitimate voters are being restricted? How many voters are being denied access to the polls? How many legitimate voters are being treated illegally or unfairly relative to other voters?
I’ll suggest the answer to all these questions is none.
I’ll also suggest that the tone of your piece seems to impart to those I’ll call “uninformed readers” that Republicans, and conservatives in general, are engaging in illegal political activity designed to steal elections. And where election practices are not illegal, conservative judges “bend” the law to help political allies. No one’s voting rights are being denied by this law. Its intent is to add integrity to everyone’s vote. The previous laws and practices this law is designed to reform created both an environment conducive to voter fraud and the opportunities of perpetrating fraud and unethical behavior.
There is nothing nefarious in the new law or in the motives of the state legislators - and your piece hasn’t convinced me that there is.
Professor Hasen, thank you for your time and consideration. Though we apparently have our differences on this particular issue, I appreciate your engagement in the nation’s political discourse.
Here is a brief response from me:
The reader raises many points, many of which I address in some detail in my book, The Voting Wars. So some of my responses here will be very brief and I invite the reader wanting more detail on these points to look at the book.
1. On student voting: there is a long history in this country of locals’ attempts to stop students from voting because the locals did not think that students were sufficiently committed to the local jurisdiction to deserve voting. It is very much like a case called Carrington v. Rash where locals in Texas tried to keep some members of the armed forces stationed on Texas military bases from voting. The Supreme Court has said that this is an impermissible basis for excluding people from voting. If someone is a resident and otherwise qualified, they must be allowed to vote—that includes students. The test for residency (or domicile) depends upon one’s intent. Now you may suspect that some students don’t really have the intent to live in the jurisdiction upon graduating, but that’s not your call to make. So the state can do things to insure that only residents vote, but it can’t make it harder for students to vote who consider that state and locality to be their domicile.  These days, many students are coming to school without drivers’ licenses—the numbers are pretty surprising.  And they go off to college without their birth certificates or other documents establishing birth, or easy means to get to a DMV or other office to get an identification card. So it is definitely going to be harder, especially in rural areas, for students to get the i.d.’s they need to vote.  If there were strong evidence that lots of students are voting illegally—for example because they are non-citizens—then perhaps excluding i.d.’s would be worth it. But there is no strong evidence this is a problem, and none I know of before the North Carolina state legislature.
2. On cutbacks in early voting, 16-17 year old pre-registration, etc.: I’ve never seen such a package of laws since the passage of the 1965 Voting Rights Act which make it harder to vote. Look at the whole package and ask what is the reason for it?  Why cut back on early voting by one week, and make the last day of early voting have the polls close at 1 pm instead of allowing them to be open to 5 pm?  The answer is not preventing fraud, because the same rules for voting apply. And it’s not efficiency, since thanks to an amendment the same number of hours need to be in place.  So we will have really long days and have to pay workers overtime.  So what’s the reason? It seems plausible that the reason is because Democrats and African-American voters took advantage of this system to vote and the Republicans in the legislature didn’t like it. That’s not to say that early voting is constitutionally required—though the Sixth Circuit just before the 2012 election held that Ohio could not cut back on early voting once it established it.  And the Republican Florida legislature, after cutting back on early voting in 2012, restored it going forward after the long lines on election day and a public backlash against a practice that simply makes voting more convenient.  And on 16 and 17 year olds—if we think people should get in the habit of voting, and many will go off to college (and now have issues with i.d.), there seems only benefit and no harm in getting people’s registration squared away early.  Put everything together that’s in the NC law and the only conclusion one can reach is that the legislature believes it should be harder to vote—and harder for certain people to vote. The big question is not suppressive intent but effect: we don’t know what the cumulative effect of these laws will be on turnout or how they will skew. My sense is that Democrats vastly exaggerate the extent to which voter id laws have left people out. But as the laws become tougher and tougher (as in Texas and NC), more and more people stand in danger of being excluded.  And look at Pennsylvania: the state has yet to convince the courts (which seem to want to allow ID) that its department of transportation can actually get id’s into the hands of the many people who want them. That can be largely disenfranchising, which is why the PA courts have put that id law on hold.
3. Shenanigans: On cases where more people vote than are registered, or on other supposed shenanigans:  very little of this is fraud. Much of this is election mismanagement thanks to the hyper-decentralized nature of American elections and varying degrees of competency and financial support for election systems. Here’s what I want: a national voting system. Universal voter registration. A national voter i.d. card. The federal government providing free id cards for everyone and paying for all the documentation to evaluate eligibility to vote. Use of a thumb print if a voter wants instead of an i.d. This would eliminate a lot of the problems and build confidence in the election process. But because of the voting wars, neither Democrats nor Republicans support full aspects of this program.

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