Not all restrictions on the right to vote should be presumed illegitimate.
Clear thinking is not enhanced by assailing any restriction of the voting franchise as “voter suppression.” Nor are regulations which have a so-called disparate impact on black Americans necessarily racist. Throughout American history urban political machines catering to rising groups in society have been prone to engage in voting fraud. Lincoln Steffens’s The Shame of the Cities is not far behind us, nor are the 60,000 “ghost votes” of Boss Pendergast’s Kansas City. Disparaging all restrictive regulations is indeed “Defining Deviancy Down.”
Similarly, demands for curtailment of gerrymandering are not credible when legislation, like the Democrats H.R.1, seeks to grandfather the racial gerrymandering carried out by virtue of the second Voting Rights Act.
The pandemic gave rise to numerous changes in voting procedures, primarily enhanced mail-in voting, expansion of early voting, and relaxation of identification requirements. The novelty of the new rules limited gaming of the system; if they persist, the potential for chicanery will be better understood.
Not all restrictions on the right to vote should be deemed presumptively illegitimate. There were once property qualifications, poll taxes, and residency requirements on the theory that voters should have a stake in the system and should not be victimizing others to give themselves benefits. These have been rightfully eroded since, with industrialization and a service economy, property no longer equates to virtue. But it is still rational to have voting rules that discourage literal vote-buying.
Literacy tests were assumed to be reasonable by the framers of the 15th Amendment. The North Carolina test, unlike most fairly administered in its later days, was upheld unanimously by the Supreme Court speaking through Justice William Douglas in Lassiter v. Northampton County Board of Elections several years after Brown v. Board of Education. They were since prohibited by federal statute first in the states where they were presumptively misused and then universally, though the validity of the latest statute is open to question. But surely there is enough left of earlier concerns for us not to affirmatively encourage voting by the senile, the mentally infirm under institutional control, and those under guardianship because of an inability to manage their affairs.
Criminal convictions once forfeited civil rights, the theory being that those who could not govern themselves should not be governing others. In the Athenian system, voting rights of citizens were accompanied by civic duties and offices, assigned by sortition. The ravages of the drug war have caused us to be kinder to misdemeanants and even to felons, but surely it is still reasonable to have procedures to restrict voting by those willing to engage in serious crime.
Mail-in voting lends itself to bribery and undue influence. It affords no assurance that the voter has marked his own ballot, or that ballots have not been exchanged for money, meals, drugs, or alcohol. The danger is aggravated when party workers rather than relatives are allowed to deliver remotely cast ballots, a practice undergoing restriction in the U.K.
Similarly, early balloting is not sought only for those who must work on Election Day, or even to allow pastors to herd their flocks from Sunday services to the polls, but rather to facilitate the delivery to the polls by bus of infirm, apathetic and senile voters assembled in nursing homes. Thus one early voting day is not enough; the Democrats in Congress want 15 of them, so as not to over-tax available buses or the time of party workers. In most of the swing states early voting was allowed up to three months prior to the election, allowing promises to be made to targeted groups that are not remembered by the electorate at large by election day.
Those willing to engage in violent or white-collar crime will not be deterred by signature-matching, a dubious science in this age of deteriorated handwriting, Nor will the graveyard vote of deceased relatives be prevented without photo identification requirements.
It is true that ours is an age in which the association of rights and responsibilities has disappeared. Those who dodge military conscription and jury service can still occupy high office. The age of the soundbite no longer fosters deliberation through literacy requirements. But it is still perverse to foster voting by criminals, the mentally infirm, those prepared to impersonate the dead, and those willing to sell their ballots. A price in cynicism, lack of civic responsibility and solidarity, and lack of confidence in the political system will be paid by those intent on what Professor Paul Freund once called “the petty triumphs of the hour.”
H.R.1 bears no resemblance to the bipartisan recommendations of the Election Reform Initiative (2001) of the Constitution Project or of the Commission on Federal Election Reform (2005) presided over by former President Jimmy Carter and former Secretary of State James Baker III, which sought to “countermand the hitherto largely uncritical acceptance of this ‘convenient’ trend [to early and absentee voting]” on account of a need for a common base of information, a ceremony reflecting collective civic duty, meaningful checks on fraud not present when votes are cast in homes, and prompt vote counting.
Detection of fraud depends on access by neutral observers to those casting votes, effectively impossible when votes are cast in the privacy of homes or ballots are retrieved from mailboxes or doorsteps. The spirit animating the proposed federal legislation is sufficiently indicated by the support given by the Speaker of the House and more than 120 House Democrats to 16-year-old voting. The last thing the supporters of H.R.1 want is a mature, unmanipulated, and responsible electorate.
George Liebmann is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, most recently America’s Political Inventors (Bloomsbury: 2019) and Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations (Amazon: 2021).