The right to vote is under threat in the United States. Gone are the days of asking individuals to count grains of sand in a jar in order to register, or the days when you had to recite the Declaration of Independence, or have a grandfather who voted. Today, the tactics used to keep people away from the polls are harder to spot, but their impact is no less pernicious.
We need to restore the protections of the Voting Rights Act, as civil and human rights advocates have been arguing. We need to look, too, at the disparate impact of policies that don't, on their face, seem to be directly about voting and recognize them for what they are.
Alabama illustrates the problem, though it is surely not alone. On the heels of the Shelby decision that gutted key provisions of the Voting Rights Act, the State Legislature passed a law that requires all voters to have a photo identification. Then, last month, Alabama decided to close 31 offices that issue driver licenses. The Governor has claimed that these laws are about smarter budgeting in a time of limited funding, and that there is still sufficient access to photo IDs. Advocates counter that these laws and policies are designed precisely to restrict the vote.
Of course, what really matters here are the consequences. The result of the closings is that in Alabama counties with a majority of non-white voters, you cannot get a driver's license where you once could. This is bad news for Alabamans as a whole, but its impact will most likely be felt most in the poorest communities, communities of color.
You can't look at closings of license bureaus in isolation. You must consider the fact that since Shelby, Alabama has raised the cost of renewing licenses, compounding the problem of access. In a state where the median income of African Americans households hovers around less than 60 percent of the household income for white families, price increases represent a deterrent to accessing the identification needed to realize the right to participate.
The bottom line is that regardless of intent, the result will be a disparate impact on communities of color. The possibility for yet another lawsuit challenging voting laws in Alabama is likely. The potential outcome is unclear given the state of current voting laws and their enforcement regime. Alabama Representative Terri Sewell has called for a DOJ investigation into Alabama's DMV closings and that request is pending.
Yet, if there were a different legal paradigm at play - one premised on government's obligations to ensure basic civil and human rights - Alabama would have to take a new approach. A rights-based approach puts the onus on government to look not only at budgetary needs, but at the overall context of decision-making.
In Alabama this includes looking at all the factors that impede access to voting together. These include cost, location, and other theoretically neutral policies with a disparate impact on communities of color, such as reduced polling hours. Alabama's history of segregation and past gerrymandering efforts would be pertinent too. The starting point of the conversation would be: Do Alabama's laws and policies curtail basic rights? Do they foster equality and address discrimination? And under this paradigm, federal, state, and local policy would have to aim to affirmatively secure the right to meaningful participation for all on an equal basis. They would have to improve access, not curtail it.
Some cities, like New York, have started down a path that could offer a course correction to address the challenge of obtaining identification through the NYC ID Card for all. This is important because 23 million citizens that are otherwise eligible to vote lack sufficient photo ID. In Alabama, it's estimated that a quarter of a million people don't have access to adequate photo identification.
To ensuring meaningful access to the ballot much further reaching, structural, changes are needed at the state and federal level. This includes a framework to explicitly address voter suppression efforts. States like California and Oregon have already taken proactive steps to increase the rate of voter registration. Hilary Clinton recently offered her own prescription, after observing that "Alabama is living a blast through the Jim Crow past."
So many have fought with their lives to protect the right to participate. The ongoing threats to the right to vote and to have a voice in the political arena are an affront to democracy, and to fundamental human rights. These threats are not only in Alabama, they are across the country.
(This piece also appeared on the Human Rights at Home Blog)