Threats to Voting Rights – Voter Suppression

Enactment of the Civil Rights Act in 1964 and the Voting Rights Act in 1965 brought to a close a period of overt racial discrimination and voter suppression. It also created a seismic shift in the alignment of the political parties: The Dixiecrats, Southern Democrats who supported the suppressive Jim Crow laws that were outlawed by the new federal statutes and who opposed any civil rights reforms, left their party and joined with conservative Republicans behind the banners of states’ rights and a smaller federal government. This alliance formed the basis of the movement that carried Richard Nixon to the White House in 1968 and Ronald Reagan to the presidency in 1980, and it formed the foundation of a political realignment that came to dominate our politics over the last half century.

It didn’t take long for the remade GOP to absorb the ideas and tactics of the Dixiecrats. In a lawsuit filed after the New Jersey gubernatorial election in 1981, the Democratic National Committee accused the Republican National Committee and the state GOP of establishing a “ballot security program” intended to intimidate minority voters. One part of the program, which Republicans defended as an effort to prevent voter fraud, included hiring off-duty police and sending them to polling places with armbands labeling them part of a “National Ballot Security Task Force”. To settle the lawsuit, the Republican National Committee agreed to a consent decree in which a federal district judge placed sharp restrictions (see “Background” section) on any “ballot security” initiatives undertaken by the RNC purportedly to prevent voter fraud.

Nevertheless, in the ensuing decades, even as Republicans in Congress overwhelmingly voted with the Democrats on three occasions to reauthorize the Voting Rights Act, at the state level they continued to modify election laws in the name of combating fraud, ignoring substantial evidence that such incidents of fraud are few and for the most part have little to no impact on election results.

At the same time, the GOP brought several legal challenges to the Voting Rights Act and the consent decree. In 2013, almost 50 years after the voting rights act went on the books, the Supreme Court decision in Shelby County v. Holder neutered the heart of the law. Four years later, the consent decree restricting GOP ballot security initiatives expired.

In Shelby, the Supreme Court declared unconstitutional one of the central provisions of the Voting Rights Act: the formula used to determine which states and localities had such bad records of political discrimination that they were required to get advance approval from the Justice Department or a federal court (called “preclearance”) for any changes in election laws, voting procedures, or political boundaries.

The 5-4 majority decided that the evidence of past discrimination used to designate the nine states — mostly in the South — and portions of six other states that were then subject to preclearance was too far out of date. This has had the effect of rendering the preclearance requirement of the Voting Rights Act unusable until the formula is updated. The court made clear Congress was free to come up with a new preclearance formula, but it has not yet done so.

Within hours of the high court’s decision, Texas announced it would implement a strict voter photo ID law that had previously been struck down and that its redrawn district maps would go into effect without approval from the federal government. Two other states, Mississippi and Alabama, also began to enforce a strict voter ID law that had previously been barred under the Voting Rights Act.

Over the next five years, the US Commission on Civil Rights found that at least 23 states enacted newly restrictive voter laws. And by 2018, there were 1,173 fewer polling places in jurisdictions formerly covered by the preclearance requirements.

The end to the consent decree also had clear consequences. In the months before the 2020 election, Reuters, the New York Times, and others reported that Republicans were mounting a coordinated campaign to recruit an “Army for Trump” to monitor polling centers not just on Election Day but also in places that allowed early in-person voting – essentially the same behavior that prompted the judge to impose the restrictions 40 years earlier. Initial reports suggested that organizers hoped to attract as many as up to 50,000 volunteers with a focus on battleground states including Florida, Pennsylvania, and Wisconsin. However, ProPublica reported just days before the election that the “Army of Trump” had not materialized in any substantial form.

Voter identification laws often get the most attention even as states move to enact and enforce laws that pose a greater danger to election integrity. These ID laws are also easily misunderstood as they are often framed as a simple choice between election security and ballot access.

Voter ID is widely popular across the political spectrum. A June 2021 Monmouth University poll found that 80% of Americans surveyed support requiring voters to show photo ID to vote, including 62% of Democrats. A month later NPR/PBS NewsHour/Marist survey also found 80% support for voter ID. And 35 states had some form of voter ID requirement in 2021.

Going back to 2005, the bipartisan Commission on Federal Election Reform, led by former Democratic President Jimmy Carter and former GOP Secretary of State James A. Baker III, proposed that every state adopt a uniform photo ID based on standards set out in the federal Real ID Act enacted that year. To address some of the concerns about the potentially suppressive effect on minority and low-income voters, the commission recommended that the states provide these ID cards for free, and use mobile units to distribute them. They made these proposals in hopes of bridging the partisan divide on this issue and putting it to rest.

Comprehensive legislation written by Democrats in the name of democracy reform, known as HR 1, resurrects the idea of a national standard for voter ID that would apply only to federal elections. Significantly, the provision won the endorsement of prominent voting rights advocate Stacey Abrams. The House passed the bill in 2021 with no Republican support, and it stalled in the Senate after all the Republicans and two Democrats voted against even debating its merits and shortcomings.

While there seems to be clear opportunity for common ground, Republican leaders have been unbending in resisting, if not willfully ignorant of, the facts. At the state level, Republican legislators continue to push for strict voter ID requirements in the name of combating fraud that has consistently been shown to be nearly nonexistent.

Put simply, voter ID is a solution in search of a problem that doesn’t exist. Its popularity across the political spectrum and persistent portrayal as a controversial topic is a distraction from the greater threats of voter purges, poll closures, and new laws affecting the independence of election overseers.

Under federal law, states have a responsibility to keep their voter registration rolls up to date. Normally, this is a wholly legitimate effort to remove people who have died, moved, or otherwise become ineligible to cast a ballot. But in some places, this has also meant that eligible voters have been removed from the rolls – and thus, prevented from voting – simply because they had not voted in recent elections. According to the American Bar Association, this is “a practice that ought to be seen as glaringly unconstitutional”.

In at least nine states, such aggressive voter “purges” take advantage of easily manipulated “use it or lose it” state laws. American Public Media estimates that 107,000 eligible voters in Georgia were removed in 2017 and another 50,000 in Ohio were eliminated in 2015 and 2016. A conservative group nearly succeeded in forcing Wisconsin to purge 17,000 eligible voters ahead of the 2020 election, when Biden won the state by a scant 20,600 votes. For much of the previous year, the Wisconsin Institute for Law and Liberty had tried to get as many as 232,000 people taken off the rolls after they failed to respond within 30 days to a postcard requesting that they confirm their address.

Separately, the Brennan Center for Justice has concluded that jurisdictions formerly subject to preclearance under the Voting Rights Act remove registered voters from the rolls more aggressively than other states.

One of the more infamous cases of purging occurred in Florida in 2000. At the time, Florida did not permit felons who had served their prison sentence to vote. Consequently, 58,000 names were expunged – an enormous number in any case, but especially important given that George W. Bush carried the state, and thereby won the presidency, by just 537 votes.

An investigation the following year found that “at least 1,100 eligible voters were wrongly purged.” That estimate may be low, according to the Tampa Bay Times. A court-ordered analysis determined that 12,023 people may have been wrongly purged – and had only a fraction of them cast ballots, they could have easily changed the outcome of the presidential election in favor of Al Gore.

To address the very real problem of voters whose status changes, the Pew Charitable Trusts launched ERIC – the Electronic Registration Information Center – in 2012. ERIC is a non-profit set up to give states the capability to identify when voter records are out of date. Made up of states that voluntarily join, ERIC makes it possible for election officials in participating states to track and update changes in voter status, such as whether eligible voters have moved, died, registered, or somehow been entered more than once into the voter rolls.

In 2019, two years after Georgia removed over a half million people, including 107,000 eligible voters, the state joined ERIC. At the time, Secretary of State Brad Raffensperger (R) declared it “a tremendous step forward for the integrity of Georgia’s voter rolls, keeping our lists up-to-date and bringing our state to the forefront of election security”.

Today, 31 states and the District of Columbia are part of ERIC. Louisiana Secretary of State Kyle Ardoin (R), however, suspended his state’s participation in February 2022 in response to a campaign by the right-wing blog, Gateway Pundit, to undermine ERIC and those who support it.

The Gateway campaign is being felt in other states. As reported by NPR, Alabama Secretary of State John Merrill (R) commented on the disinformation campaign, citing the “number of emails from some very ill-informed, uninformed or uneducated people” and pointing out the value that ERIC provides to election security: ERIC “helps identify dual participation in elections. That’s a concern [and] there’s no other way that any state in the union can do that independently of ERIC.”

In 2019, the Leadership Conference Education Fund reported that between 2012 and 2018 jurisdictions previously covered by the preclearance requirement of the Voting Rights Act closed 1,688 polling places. About 70% of these closures occurred after the 2014 election (the Shelby decision was in 2013). Eliminating polling places can confuse voters as to where they need to go to vote, can add significant travel time to voting, and can often generate longer lines and wait times to cast their votes. For hourly workers, it also can mean more time away from work and, consequently, a smaller paycheck. The end result can demoralize voters and reduce turnout.

There are justifiable reasons to close polling places that have nothing to do with discrimination — for example, if the population of an area decreases considerably — and consolidations can be executed equitably. Before Shelby, jurisdictions subject to preclearance often had difficulty getting federal approval to close polling locations. A 2018 Vice News investigation found that jurisdictions previously subject to preclearance shut down, on average, 20% more polling places in the years following Shelby. But now there is no uniform nationwide process to ensure that reductions are disclosed to the public and conducted with the input of impacted communities, and do not discriminate against voters of color.

When the coronavirus pandemic shut down much of the nation just as voting in the 2020 primaries got underway, many health officials and elections workers expressed concerns about the high risk of exposure during in-person voting. This led to some closures of polling centers and an emphasis on expanding absentee voting. Most states created more opportunity for people to vote at home and either mail in their ballot or place it in a secure drop box.

In some states, battles over the number of drop boxes became a surrogate for debates over the optimal number of polling centers. In Texas, for example, local Democratic officials sought to add several drop boxes in heavily populated, more urban, counties – places that also tended to have a disproportionate share of low-income voters, voters with disabilities, older voters, and voters of color. These counties also tend to vote for Democratic candidates.

Despite the legitimate argument in favor of adding more drop boxes to encourage more voter participation, Republican Governor Greg Abbott limited each county to just one drop box for mail-in votes regardless of disparities in population and challenges of accessing the lone drop box.