COMMENT As expected, the film Lincoln - the story of American President Abraham Lincoln and the struggle to end slavery in the United States in the 1860s - did well in the recent Academy Awards, with Daniel Day-Lewis winning the “Best Actor” accolade.

The year 2013 marks the 150th anniversary of the Emancipation Proclamation, which was signed by President Lincoln on Jan 1, 1863. Soon after Lincoln won the presidential election on Nov 6, 1860 on an anti-slavery platform, South Carolina voted to secede from the United States on Dec 20, 1860 in protest. Ten other states followed.

The secession of these 11 states and the subsequent Civil War from 1861 to 1865 (which began at Fort Sumter, Charleston, South Carolina) deeply divided the United States for almost 100 years. It wasn’t until the passing of the Civil Rights Act in 1964 and the Voting Rights Act in 1965 that America would achieve a greater semblance of the equality that was initially ushered in 1863.

It would be 100 years before the descendants of freed slaves would have the right to vote. In particular, Section 2 of the Voting Rights Act 1965 prohibits voting practices that discriminate on the basis of race, colour or membership in a language minority group.

As we know, and which the film portrays, Lincoln paid the ultimate price for this struggle for equality, having been assassinated on April 14, 1865. And it was in the wake of the assassination of another president - John F Kennedy on Nov 22, 1963 - that sufficient political will could be gathered to push through the Civil Rights Act and Voting Rights Act. Later this year, the world will commemorate the 50th anniversary of John F Kennedy’s assassination.

It is thus interesting that the United States is now grappling with legislation seeking to limit or restrict that very right to vote which was achieved at so great a cost.

As Malaysians prepare to go to the polls on May 5, 2013, they will find it odd to know that only 30 out of the 50 states in America currently have laws that require voters to show some form of identification (ID) prior to casting their votes. 20 states do not have such a requirement. And even when some form of ID is required, some states do not even require a photo ID. Unlike Malaysia, America does not have a national-wide or state-wide ID system.

Voter ID legislation

According to the National Conference of State Legislatures (NCSL), in 2011, 34 states considered voter ID legislation. In 2012, 32 states introduced voter ID legislation, some to require it, some to tighten existing rules. The main thrust of such legislation, generally speaking, had been to legislate for the need for voters to obtain and produce some form of ID to prove that they have the right to vote at elections.

After the hotly contested presidential election of 2000 that pitted George W Bush against Al Gore (which was ultimately decided by the US Supreme Court in Bush’s favour, and where Bush was declared as having won the election in the state of Florida by a mere 537 votes), states in the US have considered voter ID legislation.

Again, according to the NCSL, since 2001, nearly 1,000 bills have been introduced in a total of 46 states with varying degrees of success. Prior to the 2006 election, no state required voter photo ID as a pre-condition to voting.

Broadly speaking, the Democrats are not in favour of voter ID laws while the Republicans are. The Republicans hope that voter ID laws will reduce voter fraud and ensure that those who are not eligible to vote are excluded. They worry about the influx of undocumented migrants who unnaturally enlarge the voter pool and generally vote for their rivals, the Democrats.

The Democrats, in turn, oppose voter ID laws because it works to disqualify and disenfranchise legitimate American citizens who are unable to meet the requirements for obtaining a voter ID.

What are those requirements? As the laws governing who can vote are decided at the state level (even for federal elections), the legislation proposed or introduced in each state has different details. The main conditions may be summarised as follows:

  • Payment of a fee. Although it may not be much, at around US$25, it is difficult, if not beyond the reach of millions of Americans living at or below the poverty line. Even if no fee is required for the photo ID, one of the documents required to be produced may be a birth certificate, which can also cost money to obtain;
  • Production of documents like a birth certificate. In an argument that would resonate with some communities in Malaysia, some Americans have not had their birth recorded, especially those living in rural and remote areas. As such, they are unable to produce a birth certificate or to obtain an extract of one from official government records;
  • Presenting oneself at a voter ID office - which may be far away - and whether this (together with the need to produce the relevant documents) constitutes a substantial burden on an individual’s right to vote. Again, this would resonate with rural and remote communities; and
  • In some instances, the need for a permanent address. This would be difficult for Americans who do not have a fixed place of abode. For all the wealth of America, the number of people who fall within this category is not insubstantial.

The Democrats argue that voter ID laws may result in the poor, minority communities and the elderly being denied the right to vote. It allegedly disproportionately affects African-American, Asian-American and Latino communities.

States with a history of discrimination

Section 5 of the Voting Rights Act 1965 referred to above requires that certain states with a history of discrimination obtain pre-clearance from the US Department of Justice before proposed changes to voting laws can be implemented.

Both Texas and South Carolina passed strict photo ID laws in 2011, but failed to obtain pre-clearance from the US Department of Justice on the basis that such laws could suppress minority voters. The US Supreme Court will be considering the constitutionality of Section 5 later this year.                 

NONE Given that possessing a national registration identity card (NRIC) is compulsory in Malaysia, the issue of obtaining an NRIC is pertinent as a first step in voting in Malaysia. Indeed, the current royal commission of inquiry (RCI) being held in Kota Kinabalu on the issue of “Project IC” highlights the problem of an alleged two-stage voter fraud of undocumented migrants being illegitimately issued with an NRIC, and then unlawfully registered as voters.

The swift and ease in which these groups of people have secured an NRIC is to be contrasted with the long difficulty that some poor and minority communities, and Orang Asli/Orang Asal groups, have faced in obtaining their identity documents.    

While necessary caution should indeed be observed to ensure that those who are not entitled to vote do not obtain the necessary documents and exercise the right of citizenship, the government must, at the very same time, address the issue of the plight of stateless Malaysians who are denied everyday access to public services and amenities and ultimately, their constitutional right to vote, because of a lack of proper papers.

The speed of which several undocumented persons have received NRICs goes to show that where there is a will, there is a way. We are not speaking of long-term migrants, who by their honest effort and industry have proven their right to a Malaysian citizenship, but of the ‘overnight’ Malaysians who have allegedly been given Malaysian citizenship as a quid pro quo for electoral votes.

The time has come for the next government, of whichever political coalition, to show that it has both the will and the way to act with solemn duty and transparent integrity.

ANDREW KHOO is a practising advocate and solicitor and co-chair of the Human Rights Committee of Bar Council Malaysia. He recently spent three weeks in the United States as a participant of a US State Department-sponsored international visitors leadership programme titled, “Rule of Law: Supporting the Disadvantaged”, which looked at access to justice for marginalised communities. The views expressed in this article are entirely his own.