Asian American Disenfranchisement
Asian Americans have been disenfranchised by discriminatory laws and practices throughout the history of the United States. Laws such as those that prohibited Asian Americans from becoming naturalized citizens or practicing rights to vote have been repealed since then. Similarly, many discriminatory practices have been banned from 14th and 15th Amendments and laws made under those amendments’ enforce power. However, the inheritance of those discriminatory laws and practices such as the idea that Asian Americans are still seen as foreigners persists. Equal civic participation by Asian Americans is being prevented by that legacy.
One manifestation of that legacy is that Asian Americans are being denied equal access to the ballot box. Asian American Legal Defense and Education Fund (AALDEF), with the support of Amici and other Asian Americans organizations, have accumulated evidence through poll monitoring efforts over several past national election cycles illustrating that Asian Americans are still encountering outright hostility when trying to vote (Scher, 2010).
In the history of the United States, the AALDEF has witnessed Asian Americans being disenfranchised by institutional impediments including incomplete voter rolls, denials of provisional ballots, inappropriate identification checks, shortages of interpreter, and insufficient training of poll workers. The rights of citizens in Indiana to vote is impaired severely by the law SEA 483 by depriving any individual who lacks Indiana or United States government-issued photo identification the right to cast a vote and have the vote counted, regardless of the voters qualification or capability to offer reasonable indicia of registration and qualification. Scher (2010) asserts that the institutional barriers Asian Americans voters face regularly when trying to vote is compounded by the strict unyielding hurdles for the identification of voters imposed by SEA 483. SEA 483 also affords unbridled judgment to poll workers in voter identification procedure, provide poll employees and partisan challengers sufficient chances to discriminate against Asian Americans and other minorities.
According to Nakanishi & Lai (2003), the rights of Asian Americans to vote will be infringed severely and inappropriately by the burdens imposed by SEA 483 coupled with the persistent racial and xenophobic animus and institutional barriers placed on Asian Americans. Laws such as SEA 483 fail to satisfy strict inspection standard. Furthermore, constitutional muster under the test proffered by this Court in Burdick Vs Takushi, and applied mistakenly to SEA 483 by the courts below cannot be past by the Act. A law restricting rights of citizens to vote and have their votes counted are supposed to be weight against the competing interests of voters to access the ballot and be free from discrimination under either test. The law ought to fail if it is either unnecessary to facilitate states proffered interest of violates too great on the capability of qualified voters to vote or be free from discrimination. Under this condition, the restrictions imposed by SEA 483 are unjustified by Indiana’s interest in preventing unsubstantiated and speculative in-person voter fraud.
Accordingly, SEA 483 is said that it is not in a position of passing constitutional muster. This is further explained by evaluating SEA 483 under strict scrutiny whereby Indiana must “show that [the restrictions of the Act] further a very substantial state interest,” and that “the exclusions are essential to promote a compelling state interest.”4 Dunn, 405 U.S. at 337, 343 (emphasis in original) (quoting Kramer v. Union Free School Dist., 395 U.S. 621, 626-27 (1969); citing Cipriano v. City of Houma, 395 U.S. 701, 704 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204, 205, 209 (1970); Harper, 383 U.S. at 670). Prevention of voter fraud, if it occurs, is a justifiable and forceful governmental end (Nakanishi & Lai, 2003). See Dunn, 405 U.S. at 346. But the means Indiana and any other minority group may utilize in pursuing such an end must not abrogate the First and Fourteenth Amendments.
Even under Burdick and Anderson, SEA 483 must be both necessary and sufficiently tailored to interest of Indiana and Asian American or even other minority groups if it is to pass Constitutional scrutiny. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 402 (2000) (Stevens, J. concurring) (“[I]n practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects on the others (possibly, but not necessarily, since the existence of a clearly superior, less warning alternative).”).
According the explanation entailed in Anderson, where it stated clearly that an election law is not subject to strict scrutiny but is subject to a balancing of competing interests, the court thus “must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Id. In addition, “[i]n passing judgment, the Court is not only required to determine the legitimacy and strength of each of those interests, but rather it must also put into consideration the extent to which those interests make it necessary to burden the plaintiff ’s rights.” It is “[o]nly after scrutinizing all these factors [that] the assessing court [is] can be able to make a decision on whether the challenged provision is not constitutional.” Id. While “[t]he quantum of empirical evidence required in satisfying the heightened judicial examination of legislative judgments will differ depending novelty and plausibility of the validation raised[,]” the Court will “never accept[ ] mere conjecture as adequate” support for a law infringing on a elementary right. Nixon, 528 U.S. at 391.
For that reason, under either normal, the legitimacy and strength of the governmental interests behind SEA 483 must be assessed against the burden placed on the right to vote on the Asian American in order to stop disenfranchisement. Such an assessment must put into consideration the Act’s restrictions which are considered to be necessary and also determine whether its objectives could be realized through less burdensome measures.
An election law that is geared towards prevention of election fraud must be “necessary” in order to further that interest. Kramer, 395 U.S. at 627. In other words, the classifications must be tailored with “sufficient precision” so that the disenfranchisement of the Asian Americans who are being prevented from voting under the law “is necessary to accomplish the articulated goal.” Id. at 632. “[I]f there are other, realistic ways to achieve those objectives with a lesser burden on constitutionally confined activity, a State may not select they side of greater intervention. If it acts at all, it must opt for less severe measures.” Dunn, 405 U.S. at 343.
Compounding the disenfranchisement on Election Day are the drastic or gratuitous burdens the Act places on those voters who widen the effort and come to a decision to cast a provisional ballot (2001). Any voter without ID must not only fill out a more time-consuming provisional ballot, but also ought to take further steps to acquire that provisional ballot counted. These steps embrace appearing before the county election board within 10 days of the election and thereby obtaining documentation or identification, as required by the law in order for that provisional ballot to be counted.
In addition, these burdens concerning the right to vote are not borne similarly by all members of the community or in this case the Asian American. For example, as discussed below, Asian Americans are above all likely to be held up in the over-expansive net cast by SEA 483 as a result of both deliberate and unpremeditated prejudice (Chang, 2001). Additionally, individuals with limited means are likely to find it complicated to take the steps required in order for their provisional ballots counted. Such anticipated bigoted impacts construct the constitutionality of SEA 483 suspect, especially provided that the State’s being incapable of producing evidence that the voting fraud, which the Act is designed to combat, in reality exists. For instance in Massachusetts, 24% of Asian American voters were required to show their identification during the Election Day. Even though state law requires that the poll workers must demand identification, such requests ought to be random, consistent, or rather based on a logical doubt.
In conclusion, it is therefore evident that for each of the preceding reasons, SEA 483 does not pass constitutional muster. Amici courteously propose that this Court ought to overturn the pronouncement of the court and find that SEA 483 violates the strictures of the First and Fourteenth Amendments and cannot be enforced. Furthermore, the Asian American must also be considered as individuals just like others within the US so as they can be guaranteed the right to vote without being disenfranchised. Race discrimination is evident in the disparities seen in almost all spheres of life including criminal justice, immigration, and voting just to mention but a few.
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