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The great double standard of our election system

By Jon Sherman | April 30, 2019

After years of laws aimed at blocking access to the ballot, a new kind of voter suppression is emerging.

The Tennessee and Texas state legislatures are moving bills that would criminalize or severely penalize innocent, good-faith mistakes made by voters registering or casting a ballot. The Tennessee bill, which is headed to the governor, would impose steep fines for any incomplete voter registration forms collected by groups that conduct registration drives. The Texas bill would make it a felony to cast a provisional ballot even when the voter has a good-faith belief that they are eligible and registered to vote and even if the ballot is ultimately not counted.

If these bills pass, time — and likely, litigation — will tell whether they are constitutional. But why do lawmakers seek to punish voters’ understandable mistakes so severely, while excusing other mistakes and misconduct that undermine the right to vote? Such blatant attempts to intimidate people new to the voting process throw into stark relief what our society does not penalize.

We do not penalize election officials who deliberately or recklessly disenfranchise and intimidate voters.

In Texas, SB 9 follows on the heels of officials’ short-lived, error-riddled citizenship verification and voter purge scheme. Secretary of State David Whitley had issued a list of 95,000 registered voters and ordered county officials to verify their U.S. citizenship and remove ineligible individuals from the rolls.

But the list was grossly inaccurate, as it included U.S. citizens who had naturalized after obtaining a driver’s license. A federal judge quickly blocked this effort, calling the scheme “ham-handed and threatening.”

Mr. Whitley will never face any consequences for his conduct, which would have stripped numerous naturalized, eligible voters of their right to vote. The ploy was all the more wrongheaded because Florida tried the same trick in 2012 only to abandon it after the Department of Justice sued, alleging discrimination against naturalized citizens.

We also do not penalize poll workers for their mistakes and misconduct.

Poll workers serve as volunteers, and they deserve our gratitude and support. Unfortunately, some are not equal to the task and disenfranchise voters through incompetence, poor training, and even willful violation of the law.

Just last year, the Election Protection national hotline documented “poll workers improperly denying voters a regular ballot, refusing voter requests for a provisional ballot, rejecting valid forms of ID or requesting additional forms of ID contrary to state procedures, failing to provide or allow support to voters in need of assistance due to language or disability, and directing voters to the wrong precinct.”

The 2016 post-election report recorded that:

  • In Texas, poll workers in three counties failed and, in some cases, refused to inform voters of the newly expanded options for satisfying the voter ID requirement, in violation of a court order.

  • In Pennsylvania, over two and half years after the state’s strict voter ID law was struck down, poll workers in four counties were still asking all voters to show ID, when state law only requires this of first-time voters.

  • In Wisconsin, the League of Women Voters’ election observers documented instances of poll workers unlawfully refusing or failing to give voters provisional ballots (as required) and insisting voters present a voter ID with an address that matches their registration address (not required).

Laws that could be used to address official misconduct, mistakes and intimidation seem to gather dust, while voters committing innocent mistakes are rounded up. Recently, two women of color, Crystal Mason and Rosa Ortega, received lengthy prison sentences in Texas — five and eight years, respectively — because they mistakenly thought they were eligible to vote. While prosecutors throw the book at mistaken voters, officials’ mistakes and misconduct go unpunished.

In this way, the ongoing debate over how to best safeguard election integrity has become seriously unbalanced. An exclusive focus on innocent voter mistakes and the specter of voter fraud is one-sided and detrimental to our democracy. Ignoring election officials’ and poll workers’ mistakes and misconduct — even when it disenfranchises eligible voters — signals that their confusion and ignorance are inevitable and excusable, but the same in a voter is not.

It is past time our representatives acknowledge that negligent and deliberate violations of eligible voters’ rights are widespread and do far more violence to the integrity of our elections.

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Jon Sherman is senior counsel at Fair Elections Center, a national nonpartisan organization that defends the right to vote around the country. Follow him on Twitter @jonleesherman


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