Not since the death of poll taxes and literacy tests in the 1960s has access to the ballot box been so under siege. And as the march toward Election Day 2018 begins, the forces that helped abolish those voting obstacles appear to be moving in the opposite direction.
Fueled by conservative Supreme Court rulings, GOP politics and President Donald Trump’s unsubstantiated claims of voter fraud, attacks on ballot access now threaten to make voting more of a privilege in the United States than a constitutional right, say voting rights advocates.
“There appears to be an almost coordinated campaign unfolding across the country to institute voting suppression measures at the local and state level,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law. “Whether it’s hostility, recalcitrance or recklessness, sadly, we’re seeing many efforts to turn back the clock on the voting rights of ordinary Americans.”
Those concerns were heightened when Kris Kobach, vice chairman of Trump’s election fraud commission, revealed in a deposition that he wants to let states require proof of citizenship to register to vote. A spokesman for Rep. Steve King suggested the Republican from Iowa may introduce legislation to do so.
Efforts to make it harder to vote can be traced to three recent events, including the 2008 Supreme Court decision in Crawford v. Marion County that upheld Indiana's voter ID law and GOP election victories in 2010 that led to highly partisan redistricting and a wave of restrictive voting measures.
Most significant was the high court’s 2013 decision in Shelby County v. Holder that gutted a key component of the Voting Rights Act of 1965, allowing nine, mostly southern, states with a history of electoral discrimination to make voting-law changes without Justice Department approval.
With the Supreme Court set to decide two new cases that could potentially expand aggressive voter purges and partisan redistricting, it’s unclear where access-restriction efforts will ultimately lead, said Richard Sobel, director of the Cyber Privacy Project, which studies voter ID laws.
To block a possible voter ID bill and other legislation that would restrict ballot-box access, Democrats need to boost their numbers in Congress. And it won’t be easy in 2018; many red-state House districts are gerrymandered to Republicans’ advantage and Senate Democrats will be defending more seats than GOP incumbents in 2018.
“The cards are, in many ways, stacked against the Democrats," Sobel said. "It really depends on whether the Trump administration alienates enough of the Democratic base to turn out in high enough numbers to overcome all those biases.”
Before 2006, no states required voters to show identification before casting a ballot.
Conservatives say they have valid concerns about the integrity of voter registration lists and voter fraud, particularly in absentee ballots.
A 2012 study by the Pew Center on the States found roughly one in eight voter registrations in the United States was no longer valid or had significant inaccuracies, including more than 1.8 million dead people still on the rolls and roughly 2.75 million people who were registered in multiple states, most likely after relocating.
Those inaccuracies are understandable in counties that regularly maintain their rolls since the National Voter Registration Act allows voters who’ve relocated to remain on the rolls for two federal election cycles if they don’t update their address.
“You can temporarily swell your rolls (under that scenario) and that can be a legitimate explanation. But that is not what we find. People doing too much cleaning? That is not something we run into a lot,” said Robert Popper, senior attorney at Judicial Watch, a conservative legal foundation that sues local governments seeking more aggressive voter purges.
Instead, Popper said local voting officials routinely keep sloppy voter rolls, with some people erroneously remaining registered for many years.
Efforts to restrict voting access have been gaining steam since the disputed 2000 presidential election when political operatives nationwide realized that electoral tweaks in Florida, such as ballot design, could ultimately sway a close election.
“There were a lot of small decisions that affected voting access in Florida,” said Wendy Weiser, who heads the Democracy Program at the Brennan Center for Justice at NYU School of Law. “What was significant about Florida was we all saw it. We all looked under the hood together.”
As the nation implemented the Help America Vote Act of 2002, which opened state election codes up for review, more restrictive measures began to creep into state and local election codes in battleground states in the early- and mid-2000s, Weiser said.
That nascent movement was boosted by the high court’s Crawford decision, which upheld Indiana’s voter ID law in April 2008.
“What Crawford did was send a greenlight that the court is not going to police these laws so closely,” Weiser said
Before 2006, no states required voters to show identification before casting a ballot. Today, eleven states have voter ID laws that force voters without acceptable identification to cast a provisional ballot that then requires additional action – such as providing their identification in person – in order for the vote to be counted. In all, 34 states request or require voters to show identification at the polls, according to the National Conference of State Legislatures. West Virginia and Iowa will implement similar laws next year.
Voter ID laws were ostensibly created to prevent in-person voter fraud. The 2016 Republican platform called on states to mandate proof of citizenship when registering and photo IDs when voting because “voting procedures may be open to abuse.”
Numerous studies and investigations, however, have shown that voter fraud is rare. Research by Justin Levitt, a law professor at Loyola Law School in Los Angeles, has found only 45 credible examples of fraud that ID laws could stop out of more than one billion votes cast in primary and general, municipal and special elections from 2000 to 2016.
“We have, essentially, no data that indicates that voter impersonation is a real or significant problem. So (ID laws) do not appear to be doing much to reduce voter fraud in general,” said Zoltan Hanjibal, political science professor at the University of California, San Diego.
In research published earlier this year, Hanjibal and other political scientists at UCSD studied voter turnout patterns from 2006 to 2014 in 26 general-election contests and 25 primary contests across 10 states with strict voter ID laws. They found notable declines in minority turnout relative to whites. Likewise, turnout for Democrats fell more significantly than for Republicans.
Popper of Judicial Watch said little attention is paid to fraud involving double voting: when a person is registered in one state, moves to another and then uses an absentee ballot to vote in his or her old state, while voting in person in the new state.
Equally troubling to conservatives is the issue of “honor voting,” when family members submit absentee ballots on behalf of deceased loved ones, said Logan Churchwell, communiations director at the Public Interest Legal Foundation, a law firm in Indianapolis that specializes in elections litigation.
Absentee ballot fraud also occurs on behalf of institutionalized seniors who may be incapacitated, Churchwell said.
Voter fraud does happen and people do impersonate each other.
Logan Churchwell of the Public Interest Legal Foundation.
Democrats, with Barack Obama atop the ticket, rode increased African-American turnout to the presidency and majorities in Congress in 2008. But the 2010 mid-term elections erased those gains as Republicans recaptured the House and Senate and majorities in statehouses across the country.
That gave the GOP an opportunity to control post-Census redistricting in 2011 – and they took advantage, using improved mapping technology to craft favorable political districts at the expense of Democrats.
The national redistricting effort, dubbed “Operation REDMAP,” helped Republicans capture more seats in Congress and in state-level races in 2012, 2014 and 2016. Today, Republicans control both state legislative chambers in 31 states, while Democrats lead both chambers in just 12 states.
After the 2010 elections, 10 states implemented stricter voter ID laws, seven made registration more difficult, six cut early-voting opportunities and three made it harder to restore voting rights to people with criminal convictions, according to the Brennan Center.
By 2016, 14 states had new voting laws on the books for the first time in a presidential election: Alabama, Arizona, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia and Wisconsin.
Section 5 of the Voting Rights Act of 1965 required the U.S. Department of Justice to preapprove changes to voting rules in nine states with long histories of voting discrimination. But after nearly 50 years, the U.S. Supreme Court voided the “pre-clearance” requirement in June 2013, ruling in Shelby County v. Holderthat an invalid formula had been used to determine which jurisdictions should be subject to the provision.
Civil rights groups said the ruling opened the door for state and local governments to enact a flurry of controversial voting restrictions – such as cutting early-voting opportunities, curbing voter-registration activity, changing polling locations and hours and cutting multi-lingual voter assistance – without the threat of federal vetting for their discriminatory impact.
Our whole system is built on confidence in the electoral process and if we don't believe it's a fair system, it's hard to justify any of it.
Wendy Weiser of the Brennan Center for Justice
According to a report by the research arm of The Leadership Conference on Civil and Human Rights, voting locations in 2016 were reduced in about 43 percent of counties that were previously covered by Section 5 of the Voting Rights Act. The result: There were 868 fewer sites in which to cast a ballot in those jurisdictions with histories of discriminatory voting practices.
Voting rights advocates were heartened by recent federal court decisions in 2016 that blocked or weakened restrictive voting laws enacted by Republicans in Kansas, Michigan, North Carolina, North Dakota, Ohio, Texas and Wisconsin. Litigation in these cases – like most – is typically protracted, and disputed measures often are allowed to remain in effect for entire election cycles until temporary injunctions or final relief can be granted by the courts.
That’s a calculation supporters of restrictive voting measures appear to count on, said Clarke, of the lawyers’ committee.
“With the loss of Section 5 we are now in a world in which we sometimes have to live with the impact of the voter suppression measure until we are successful” in court, Clarke said. “It does create this odd outcome where you don’t have the Section 5 remedy to block that discriminatory measure right at the outset.”