A Vote Delayed is a Vote Denied: A Preemptive Approach to Eliminating Election Administration Legislation that Disenfranchises Unwanted Voters

Abstract

In an effort to determine voter eligibility and access to the voting booth, our democratic system has allowed political forces, to develop laws that would meet their aims of either granting or denying access to the franchise. Caught in this web of regulations, practices and procedures is the "unwanted voter" - the disabled, elderly, poor, and minority voter. New millennium models of exclusion, such as overly restrictive identification requirements, unwarranted voter purges, restrictive voter registration rules, increasing costs for underlying documents to support citizenship and eligibility for voting, are creating a caste system in the electoral process. The practice of using various methods of exclusion is not limited to one political party. Historically, Southern democrats and more contemporaneously, republicans, are guilty of manipulating the political process to disenfranchise unwanted voters. Accordingly, the common strand that connects the political forces, regardless of party affiliation, is their desire to extinguish the voting power of the poor, minority, and elderly voter.

This article recommends protections to the disenfranchised voter to allow full participation in the fundamental right to vote. It proposes requiring jurisdictions to provide a Voter Impact Statement (VIS) to the Election Assistance Commission, which is an office created in the Help America Vote to provide assistance in election administration issues, certifying that proposed major election administration legislation does not disparately impact America's unwanted voters. The use of impact statements ensures that legislators are not relying on conjecture and anecdotes, but rather, involving the community in a discussion of how best to frame a fair electoral process. This approach would ensure that legislatures seriously consider the implications of election administration actions, deliberate alternatives, and assess the potential impact on the electorate. It would also require that the state engage in community outreach, thus, making the process more transparent. The Voter Impact Statement could limit litigation and its exorbitant costs, boost voter confidence, and enhance legislative accountability. Part I of this article provides an historical perspective of major voting rights legislation and explains the concept of the "unwanted voter." Part II discusses new millennium disenfranchising methods, such as voter ID laws and voter purges and describes how the politically empowered can manipulate these seemingly neutral laws and use them to disenfranchise a distinct part of the electorate. Finally, Part III describes the legal framework for this article's proposal and particularly discusses Congress's authority to regulate federal elections and describes a preemptive approach to election administration changes that borrows concepts from the Section 5 of the Voting Rights Act, which currently applies to voting changes in certain parts of the country as well as the use of Environmental Impact Statements under the National Environmental Policy Act.

Keywords: election law, disenfranchisement, civil rights, voter impact statement, Voting Rights Act

JEL Classification: K39