Voter Suppression Works Too Well

This article appears in the Winter 2017 issue of The American Prospect magazine. Subscribe here.

Unnerved by progressive voting policies and by the numbers of black, Latino, and young voters streaming into the electorate, Republican state lawmakers across the country have moved to suppress the franchise to maintain GOP political dominance. The strategy is simple: Turn voting into a bureaucratic nightmare by eliminating popular timesavers such as same-day registration and early voting. Require photo identification to vote, using IDs that many people don't have or cannot pay for. The harder it is to vote, especially for people juggling some combination of work, classes, and child or elder care, the fewer people will.

It is difficult if not impossible to calculate how voter suppression affected voter turnout or the outcome of the presidential election. What is indisputable is that these roadblocks deterred many people from exercising the franchise, particularly in states like North Carolina with a long history of racial voter suppression. Many of those new election laws were promulgated after the Supreme Court's 2013 decision in Shelby County v. Holder that invalidated provisions of the Voting Rights Act that required U.S. Justice Department review of election law changes. North Carolina was especially adept in manipulating the building blocks of suppression through redistricting, racial gerrymandering, and unprecedented election law changes.

Fourteen states had new restrictive measures in place for the general election.

Wisconsin requires photo ID, a hardship for many: In 2014, a federal district court judge determined that an estimated 300,000 registered voters did not have one. Turnout plummeted in the city of Milwaukee, where most of the state's African American voters live, with 41,000 fewer people going to the polls than in 2012. Donald Trump's margin of victory in Wisconsin was more than 22,000 votes. Over the past five years, Ohio has purged two million voters from the voting rolls. Trump won the Buckeye State by about 447,000 votes.

Despite a federal court order striking down its so-called monster voter-suppression law, North Carolina officials devised ways to ensure that there were 27 fewer places to vote on Election Day. Seventeen of the state's 100 counties also saw cuts to early-voting locations and hours, resulting in a drop of nearly 66,000 votes during the early-voting period, an 8.7 percent decrease from 2012, according to Michael McDonald, a University of Florida political science professor.

Terry Chay/Creative Commons

In 2011, after the 2010 census, state lawmakers began to chip away at voting rights by redrawing state and congressional legislative districts. They also left a long trail, beginning the day after the Shelby County decision, outlining plans for new race-based election restrictions that included eliminating same-day registration, adding a strict voter-ID requirement, eliminating one week from the early-voting period, dispensing with out-of-precinct voting and preregistration for 16- and 17-year-olds-all tools that had benefited minority voters and young people. Nor did the Fourth Circuit Court of Appeals decision in North Carolina NAACP v. McCrory, which struck down those restrictions, deter state Republican Party leaders from pulling off an end run around the decision by suggesting to certain GOP county election officials to dispense with Sunday voting and reduce the number of early-voting places and Election Day polling places.

In North Carolina, Donald Trump beat Hillary Clinton by about 177,000 votes. Down-ballot state races were much tighter, with Democrat Roy Cooper finally prevailing over Republican Governor Pat McCrory by more than 10,000 votes. Democrats also won other races, including attorney general and secretary of state.

Voting rights are under siege in a way that hasn't been seen in more than a generation. But these coordinated attacks follow a historic pattern: Laws that expanded the franchise during Reconstruction and after the passage of the 1965 Voting Rights Act have typically been followed by state-level repression and federal indifference. "With advancements in voting rights, there is always a swift backlash," says Leah Aden, senior counsel at the NAACP Legal Defense Fund. With Donald Trump in the White House, Senator Jeff Sessions of Alabama likely as attorney general, and Republican-led legislatures primed to continue voter suppression, the run-up to the 2018 midterms promises to be one of the most difficult periods for protecting the franchise in the country's history.

VOTER SUPPRESSION is a long-standing tactic. However, victory was not enough for Donald Trump and his allies. They continue to hammer home the fiction that millions of people voted illegally, statements for which there is no evidence, in a country where voter fraud is practically nonexistent.

The threat of Election Day intimidation and protests which largely failed to materialize diverted attention from the more insidious developments that occurred two years before, which actually had more of an impact on turnout-for instance, North Carolina's "monster" voting law, which culminated in epic court battles and a contentious state election. Recounts demanded by vanquished Republicans like McCrory failed to produce evidence of fraudulent voting. "The whole recount process that we [went] through is proof to me [that] the idea of voter fraud is just a hollow shell to mask some of the work that people want to do to maintain their power or to get power," says Mary Klenz, co-president of the League of Women Voters of North Carolina.

In states like North Carolina and Texas, which has a very strict voter-ID law, restrictive measures presage what Americans can expect in the run-up to the 2018 midterms. According to the narrative of voter suppression, additional regulations that make it easier to confirm a person's identity and citizenship are needed to combat fraud. The tactics used to ferret out alleged fraud almost exclusively affect minority groups, the young, and the elderly. Indeed, fear of the black voter is a persistent theme in the history of voting in the United States. Images of blacks stuffing ballot boxes entertained Americans in D.W. Griffith's 1915 silent film, The Birth of a Nation, during a period when blacks in the South were more likely to be lynched for even attempting to vote.

Regulations like photo identification are supposedly designed to prevent people from impersonating other voters, despite the fact that practically no one impersonates another person with the intent to vote in the United States. The misuse of alternatives to in-person voting, such as the fraudulent use of absentee ballots, is also rare. Other tactics, like consolidating polling places, are explained away by noting that these moves save money, despite long lines and other headaches such closures produce in the remaining polling stations.

AP Photo/Steve Helber

Meanwhile, Anita Earls, executive director of the Southern Coalition for Social Justice, headquartered in swing state North Carolina, encountered a problem she had not seen before: formal protests initiated by individuals who had done internet research, going on fishing expeditions. They alleged, with no evidence, that other voters had felony convictions. The practice forced attorneys and boards of elections to hear challenges to voters in more than half of the state's counties. In a brief, filed in late November, before the state board of elections regarding a number of election legal issues, the coalition determined that race was the focus of those 41 voter protests.

Of the voters challenged as ineligible, most could be identified by race using an internet voter search tool: 22 were black; 11 were white; and 4 were of an unknown ethnic background. When county boards of elections investigated, officials often discovered the person named in a protest had been confused with another individual with a similar name. "Almost none of the challenges are being sustained," says Earls. "Problems happen where people believe they will have an impact," she adds. "Where the vote is close is where the most suppression goes on."

Shortly after the election, the national League of Women Voters used Trump's own "the election is rigged" rhetoric to describe the voter suppression efforts around the country. Lloyd Leonard, the league's national senior advocacy director, says the organization thought long and hard about its choice of words, and has no regrets. "You don't steal an election by getting four, five, six, or twenty of your friends to cheat; you do it by having a more massive operation," he says. "I leave it to you to do the arithmetic about who is more likely to affect the outcome of the election."

WITH THE 2018 MIDTERM elections on the horizon, the next two years will be a crucial test for voting rights. A Republican Congress could weaken voting-rights laws, and the Justice Department could weaken enforcement.

With a conservative now expected to fill the vacancy left by the death of Justice Antonin Scalia, the high court will be no defender of the franchise.

Chief Justice John Roberts, who wrote the majority opinion in Shelby County, has demonstrated antipathy to voting rights since his tenure as a special assistant to William French Smith, Ronald Reagan's first attorney general. A former Department of Justice official told Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, that "John seemed like he always had it in for the Voting Rights Act."

The high court's Shelby County decision eviscerated the landmark law's "preclearance" provision, which required nine states and specific counties or townships in six other states to submit election law changes to the Justice Department for review. The preclearance process gave the federal government a tool to prevent blatantly discriminatory regulations from going into effect. (Now challenges to election laws must be fought as rearguard actions through state and federal courts.) The remaining teeth of the VRA rest on another provision that mandates that voting laws do not discriminate on the basis of race, color, or certain languages. That provision, Section 2, "has not come under the same level of scrutiny and has consistently safeguarded the rights of minority voters," says Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.

Several cases are likely to make their way to the high court in the next two years, including North Carolina NAACP v. McCrory, which produced the now-celebrated Fourth Circuit decision that struck down the state's "monster" suppression law and found that state lawmakers implemented a variety of racially restrictive election laws "with almost surgical precision," since "African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise"; Veasey v. Abbott, the decision by the conservative Fifth Circuit Court of Appeals, which struck down the Texas photo-ID law; and Frank v. Walker as well as One Wisconsin Institute, Inc., et al. v. Mark Thomsen, et al., both cases that contest Wisconsin's photo-ID laws.

These victories demonstrate that voting rights can sometimes get a fairer hearing in lower courts. Even conservative judges in places like the Fifth Circuit have been willing to strike down discriminatory election laws. But a new conservative majority on the Supreme Court does not augur well.

Prospects to defend voting rights are no better in a Republican Congress. The Voting Rights Advancement Act of 2015, aimed at restoration of federal preclearance, is a dead letter. Congress may weaken the 2002 Help America Vote Act, which covers election administration, by eliminating the troubled Election Assistance Commission that develops election guidelines and has usually not been staffed at full strength. (Only three out of four commissioners have been seated under President Obama.) The 1993 National Voter Registration Act, signed into law by President Bill Clinton, could well be targeted for its mandate that social service agencies that typically serve low-income people should also help them register to vote, even though compliance with the law is haphazard, with some states making very little or no effort to sign people up to vote.

U.S. Representative Marc Veasey, the lead plaintiff in the Texas photo-ID case and a co-chair of the Congressional Voting Rights Caucus established in 2016 as a response to Shelby County, is also concerned about possible measures that would require people to present proof of citizenship, such as a passport or birth certificate, to register to vote. Those mandates would weaken nonprofit voter registration programs at events like weekend new-voter sign-ups by requiring people to present documents that most people do not carry with them on a daily basis. States like Alabama, Georgia, and Kansas have tried to institute proof-of-citizenship requirements, but a federal appeals court threw out those regulations shortly before the election.

H. Scott Hoffmann/News & Record via AP, File

The Texas Democrat says some of his fellow Lone Star State lawmakers once told him that strict voting regulations had less to do with race or ethnicity (or African American legislators like him) and everything to do with party affiliation. "If you make it harder for blacks to vote, choose the candidate of their choice, or to have any kind of say-so in election results, then it's not about racial discrimination, it's more [about] how we make it harder for Democrats," he says they explained to him. "That's how they've justified it and been able to get a good night's sleep," Veasey says.

With the avenues for national legislation closed, what transpires in the states in the next several years becomes increasingly more important. In addition to congressional seats being contested, 38 governor's races will be held in 2017 and 2018, along with dozens of state and local races.

Yet as crucial as midterm elections are in election lawmaking, they usually elicit indifference from an already apathetic electorate. Only 37 percent of eligible voters made it to the polls in 2014, the lowest midterm turnout in 70 years. The average voter who sits out a midterm election does not make the connection between a party's control of the state legislature and the governor's office, and how those partisan officeholders will have the ability to craft new election laws and carve out state and federal legislative districts after the 2020 census. Yet in 2014, a Center for American Progress/NAACP-LDF/Southern Elections Foundation report found that the numbers of voters in Alabama, Georgia, North Carolina, Texas, and Virginia that were affected by changes in early-voting and photo-ID laws far outstripped the margin of victory in those states' U.S. Senate and gubernatorial races.

THE MOST BRAZEN ATTACKS on voting rights still come out of the South, and North Carolina is ground zero.

But the Tar Heel State has also become a model of effective resistance based on litigation, public protest, and, most significantly, a ballot box backlash.

The North Carolina Republican Party's dedication to curbing voting rights has produced an onslaught of litigation by groups like the League of Women Voters of North Carolina and the Southern Coalition for Social Justice, which will keep state attorneys busy in state and federal courts for some years to come. Shortly after the presidential election, a federal district struck down gerrymandered North Carolina state Senate and House legislative districts that forced African American and Hispanic voters into a few districts, and ordered the state to hold new elections. State officials have until mid-March to redraw the districts in preparation for a new primary and a November election. Republican state lawmakers plan to appeal that decision to the Supreme Court.

The voter-suppression law catapulted the North Carolina NAACP to the forefront of public protest. The Moral Mondays movement grew out of opposition to the voting curbs, and spawned regular protests that grew in number and size to rival the bloody voting-rights marches of the 1960s. "[Republican state lawmakers] have shown since Shelby County that they will do almost anything, tell almost any lie, go to almost any extent to suppress the vote," Reverend William Barber, the leader of the North Carolina NAACP and of the Moral Mondays protests, said in an early December conference call with reporters.

With many North Carolinians already mad as hell about voting rights, Governor McCrory and Republican state legislators finally overreached, passing HB2, a bill that mandated that transgender people use the bathroom corresponding to their assigned sex at birth. They could not contain the backlash, which prompted an economic boycott that has so far cost the state tens of millions plus the loss of marquee events like NCAA and ACC championship games and the NBA All-Star Game. The divisiveness of serving as a laboratory for conservative Republican dogma contributed to the Democrats' November successes.

Republicans' determination to dismantle voting rights that were once presumed settled will necessitate a response worthy of a new civil-rights movement. Voter-suppression efforts compounded problems for Democrats, who want to counteract the powerful appeal of the far-right message espoused by Trump, but the presidential election pointed to alarming signs that key constituencies like African Americans and young people are not as engaged in exercising their right to vote. The message that midterm elections matter will be a difficult concept for many voters to embrace after the rancorous 2016 contests.

Yet Representative Veasey argues that the first line of defense for American democracy begins in state races at every level-the very races that voters tend to ignore. But without a new focus on exercising the franchise at every possible opportunity, he fears right-wing conservatives will continue to devise schemes and create loopholes that will make voting harder during a presidential election year when most people really want to vote. "At some point, we have to be in charge of these state legislatures," Veasey says. "If not, when it comes to things like voter-ID and redistricting, we are always going to be playing defense."