With Mitt Romney getting only a small bounce from the Republican National Convention, the polls are currently showing a virtual dead heat between Romney and President Barack Obama just eight weeks from the November elections.
The polls also show a sharply polarised electorate, with a much smaller proportion of “undecideds” than in previous elections. Despite the vast sums of money being spent by both sides, the key to winning the next election will not involve changing minds so much as ensuring that supporters actually vote – especially in the seven or eight “battleground states” that will determine the result.
Getting out the vote is no mean feat in a country with relatively low turnouts compared with other democracies. Even in 2008, with an arguably transformative candidate in Barack Obama, a military hero in John McCain and intense interest from both mainstream and social media, 90 million eligible voters (43%) failed to cast a ballot.
In what might seem like a perverse response to these disappointing figures, Republican-controlled legislatures in more than 30 states have proposed measures aimed at further tightening registration and voting laws. Late last month, a three-judge panel of the federal district court unanimously struck down Texas’s “voter ID” law, ruling that it would unfairly suppress turnout among minority voters and impose “strict, unforgiving burdens on the poor”.
The ostensible justification for voter ID laws is the need to reduce voter fraud. There is little or no evidence, however, that there is a problem. A comprehensive study of voter fraud by the non-partisan Brennan Center at New York University found only a tiny number of documented cases, representing an infinitesimal proportion of votes cast (e.g. 0.0002 in New Jersey and 0.000009 in New York).
The Brennan Center did find, however, that one in ten otherwise eligible American voters do not possess a government-issued photo ID. The problem is particularly acute for poor people, elderly people, black people and Latinos, students and disabled people. In other words, these laws affect the people most likely to vote for Democrats rather than for Republicans.
So how are voters restricted by these laws?
First, there is a requirement that individuals present an authorised photo identification document before they may vote. A driver’s license is universally acceptable, but more contentiously some states, especially in the South, specify that gun licenses are also fine for this purpose, while university student ID cards are not acceptable.
Most of the new laws also eliminate or severely reduce the availability of early voting arrangements, except for military families. As in Australia, pre-polling has become increasingly popular, and there may be even more justification for this practice in the US, where elections are held on Tuesdays, with many working class Americans finding it difficult to attend a polling place before or after work, much less to assist others.
Late last month, a federal judge in Ohio ruled that the previously more generous pre-polling arrangements must be restored in the interests of equal protection. The evidence demonstrated that the elderly, the poor and minorities were more likely to take advantage of voting opportunities offered outside normal business hours. The judge ruled that “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another”.
That same week, a federal court blocked moves that would have allowed election officials in Florida to limit early voting on a county-by-county basis, noting that the evidence clearly showed this would disproportionately affect black voters.
A number of states - again, mainly in the South - have actually moved to criminalise imperfect efforts at enrolling new voters, even where the effort was made in good faith and amounts to no more than a technical failure to comply fully with highly complex rules.
Earlier this year, a Florida school teacher was convicted and fined for lodging her students’ registration forms (completed during an optional civics class exercise) just hours beyond the new arbitrary filing deadline. Unfortunately, non-partisan community organisations like the Boy Scouts and the League of Women Voters were panicked into suspending their voter registration drives for fear of exposing their members to the spectre of criminal liability, until a federal judge in Florida issued an injunction against enforcement of the law, because it’s likely to be unconstitutional.
Finally, the new laws disenfranchise anyone convicted of a felony, whether the individual is a serving prisoner or has long since been released and reintegrated into civil society. This disproportionately affects some communities, with as many as one-in-six young black and Latino men likely to lose their voting rights. By way of contrast, the High Court of Australia ruled in 2006 that extension of the franchise as widely as is reasonably possible is an essential aspect of representative democracy.
This is also the first federal election since the US Supreme Court’s highly controversial decision in Citizens United (2010), which ruled that, in Mitt Romney’s words, “corporations are people too” and enjoy the same rights of free speech as individuals – including the right to spend virtually unlimited amounts of money to influence the political process.
Ironically, it seems the courts need to remind some politicians that poor people are people too.