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Big Dangers for the Next Election

Democracy and Justice: Collected Writings

edited by Desiree Ramos Reiner, Jim Lyons, Erik Opsal, Mikayla Terrell, and Lena Glaser
Brennan Center for Justice, NYU Law School, 152 pp., available at www.brennancenter.org
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Ozier Muhammad/The New York Times/Redux
A civil rights activist at a march outside the Alabama State Capitol commemorating Bloody Sunday and protesting Alabama’s new voter identification law, Montgomery, March 2012

While people are wasting their time speculating about who will win the presidency more than a year from now—Can Hillary beat Jeb? Can anybody beat Hillary? Is the GOP nominee going to be Jeb or Walker?—growing dangers to a democratic election, ones that could decide the outcome, are being essentially overlooked. The three dangers are voting restrictions, redistricting, and loose rules on large amounts of money being spent to influence voters. In recent years, we’ve been moving further and further away from a truly democratic election system.

The considerable outrage in 2012 over the systematic effort in Republican-dominated states to prevent blacks, Hispanics, students, and the elderly from being able to vote—mainly aimed at limiting the votes of blacks and Hispanics—might have been expected to lead to a serious effort to fix the voting system. But quite the reverse occurred. In fact, in some of the major races in 2014, according to the highly respected Brennan Center for Justice, the difference in the number of votes between the victor and the loser closely mirrored the estimated number of people who had been deprived of the right to vote. And in the North Carolina Senate race, the number of people prevented from voting exceeded the margin between the loser and the winner.

But even if it cannot be shown that the suppression of votes made the difference in the outcome of an important race in a given state, that doesn’t exactly make voter suppression benign. Hundreds of thousands of people are being denied their constitutionally guaranteed right to vote. They have the misfortune of living in a state controlled by one party that wants to deprive the other party of as many votes as possible of the groups that tend heavily to support it. The ostensible rationale for such an effort—voter fraud—is itself a fraud.

The Brennan Center estimates that 11 percent of qualified voters in the United States do not possess a government-issued photo ID or any other of the documents required by the voter ID laws now in effect in thirty-two states—a finding confirmed by other studies. Some people were turned away from the polls because they had a driver’s license from another state or because their license had expired.

Of course there were other reasons why the Democratic candidates didn’t do better in 2014. They included the president’s low approval ratings, the Ebola panic, the beheadings of American captives by ISIS, as well as the Democrats’ lack of much to say to the voters. All that fed into the sweeping Republican victory. But none of this disproves the fact that an across-the-board effort to deny the vote to selected groups, especially racial minorities, has been taking place and can turn an election.

In North Carolina shortly before the 2014 election, Thom Tillis, the speaker of the state House of Representatives and the Republican candidate for the US Senate against the incumbent Kay Hagan, rushed through the legislature one of the harshest voting laws in the country. It cut back the number of days for early voting, eliminated same-day registration, and prohibited people from voting outside their home precincts—all forms of voting heavily relied upon by blacks. Tillis defeated Hagan by 48,000 votes. One way to look at this is that in 2012, 700,000 people voted on those early voting days that were later cut; and 100,000 voters, almost one third of whom were black, had previously been able to register and vote on the same day. North Carolina hadn’t yet imposed a voter ID law in 2014, but one is in place for the next election.

In Kansas, the extremely conservative governor Sam Brownback had been in reelection trouble in 2014 because his steep tax cuts had led to draconian cuts in state services, but he surprised the political world with a very narrow victory, by 33,000 votes. Kansas’s strict new voting laws, including requirements for a photo ID for voting and proof of citizenship for voter registration (particularly the latter), held the number of votes down by close to the same amount.

In Texas, in a suit brought shortly before the election against that state’s new voting law, the toughest in the country, rushed through by Greg Abbott, then attorney general and the candidate for governor, a federal district judge found that 608,470 registered and qualified voters lacked the newly required voter ID. She also found that black voters are 305 percent more likely and Hispanic voters 195 percent more likely than white voters to lack the required ID. In her ruling striking down the new law she said that it was intentionally discriminatory against blacks and Hispanics. The Texas ID law accepted concealed-carry permits but not state-issued student IDs.

Nevertheless, the 5th Circuit Court of Appeals and the US Supreme Court let the law go into effect in the 2014 election. Though the race for the Senate and governor in Texas weren’t close calls, those 600,000-plus people were also unable to vote in contests for offices such as justice of the peace or their state legislator that could affect them more directly.

The Supreme Court recently turned down an appeal of a very strict voter ID law in Wisconsin that’s ardently championed by governor and presidential hopeful Scott Walker. Walker’s view was, “It doesn’t matter if there’s one, one hundred, or one thousand” instances of voter fraud, no one’s vote should be canceled out by an illegally cast vote. When the Wisconsin law was challenged in district court, the trial judge said that it violated both the equal protection clause of the Constitution and the Voting Rights Act of 1965 for minority voters, and he saw no justification for it.

The same district judge prepared a ninety-page study of the 2004 election, which had given rise to claims of voter fraud and demands for imposing voter ID laws. In his study of voter fraud allegations—the most thorough yet made in the US—the judge produced just seven substantiated cases of individuals knowingly casting invalid votes—all of them people with felony convictions. None of these violations could have been prevented by voter ID laws. According to the Brennan Center, these invalid ballots amounted to some 0.0002 percent of those cast in the entire state of Wisconsin. The judge said, “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”

Still, a conservative court of appeals and then the US Supreme Court held the Wisconsin law to be constitutional. During the litigation on the Wisconsin law, the well-known conservative appellate judge Richard Posner wrote in a dissent: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one?” Even the federal Government Accountability Office looked into the effect of voter ID laws and found that they suppressed the black vote. Michael Waldman, the president of the Brennan Center, has written that he and his allies aren’t pressing for a policy of no voter identification at all, but “I’m just against requiring ID that lots of Americans do not have.”

What is now clear is that the efforts in many states to fix the outcome of the vote by keeping Democratic constituencies from voting have been largely successful. With the white share of the voting population dropping in such swing states as Florida and Nevada, both of which Obama won narrowly in 2012, and North Carolina, which Obama narrowly lost, the Republicans are all the more anxious to hold down the number of black and Latino votes.

Laws restricting people’s voting rights will continue to be passed until the pattern becomes too obvious for even the Supreme Court to ignore, or we get a different Supreme Court, or enough people wake up to what’s going on and see that democracy is being curtailed. For the time being we cannot expect Congress to help.

As with practically every other question of public policy, voting rights has now become a partisan issue. Only one Republican leader—House Majority Leader Kevin McCarthy of California—attended the fiftieth anniversary of the Selma marches that led to passage of the Voting Rights Act—and he decided to go only at the last minute. George W. Bush attended, which put him out of step with the current leaders of his party, but then Bush, like Ronald Reagan before him, had signed an extension of the act. (In the Reagan White House, a then-young attorney named John Roberts advised the president not to sign the extension.) At the Selma ceremonies president Obama made a ringing call for Congress to enact a strong voting rights law—then nothing happened.

From the time that George W. Bush pulled off his questionable presidential victory in 2000—with the help of a brother who was the governor of Florida and a Republican-dominated Supreme Court—he and his political henchman Karl Rove set out to make sure that the Republicans wouldn’t have to endure another such crisis. One way to do that was to keep as many supporters of the Democrats as possible from voting. In his book The Voting Wars, Richard Hasen, an expert on election law, writes, “Florida mainly taught political operatives the benefits of manipulating the rules…. Election law has become part of a political strategy.”

After Bush took office, Republican operatives set out to find instances of “voter fraud”—someone impersonating a qualified voter, which is a felony. But though allegations of fraudulent voting were widely made, almost none were proved. Hasen points out that people who cry foul often confuse registration fraud with fraudulence in the casting of votes. In 2009, workers for the community action organization ACORN were caught registering unqualified voters, but that didn’t mean that those people would vote. The workers were often paid per registration, so they had an incentive. Moreover, Hasen says, it would take a great many cases of voter impersonation to swing an election. “The bottom line,” he writes, “is that we have no modern instances to show that voter impersonation fraud is a real problem.” After the 2006 midterms, at the behest of the Bush White House the Justice Department fired nine US attorneys (all of whom it had appointed) for failing to come up with evidence of voting fraud. After the Republican sweep of the 2010 midterms, a national effort to manipulate voting laws began.

In 2013 the Supreme Court, by a 5–4 vote, gutted the Voting Rights Act. In the case of Shelby v. Holder, the Court found unconstitutional the sections requiring that states and regions with a history of voting discrimination must submit new voting rights laws to the Justice Department for clearance before the laws could go into effect. Congressman John Lewis called such preclearance “the heart and soul” of the Voting Rights Act. No sooner did the Shelby decision come down than a number of jurisdictions rushed to adopt new restrictive voting laws in time for the 2014 elections—with Texas in the lead.

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Ozier Muhammad/The New York Times/Redux
Civil rights activists marching toward the state capitol, Montgomery, Alabama, March 2012

In ruling as it did, the Roberts Court broke with precedent (as it has tended to do) by overriding the will of Congress on voting rights. The majority—Chief Justice Roberts, along with Justices Anthony Kennedy, Antonin Scalia, Samuel Alito, and Clarence Thomas—held that there had been such progress in the states previously covered by the Voting Rights Act that preclearance was no longer necessary.

In fact, what had actually happened was that though a great many more blacks were allowed to vote than before the act was passed, the recently adopted means to try to prevent large numbers of them from doing so were now more subtle. (The Court’s majority chose to ignore the extensive evidence of racial discrimination in voting that Congress had amassed when it considered extension of the Voting Rights Act in 2006.) Voter ID laws were the new literacy tests. Between 2000 and the issuance of the Shelby decision of 2013, 148 objections to unfair voting restrictions had been filed in twenty-nine states; Texas, with thirty objections, had the most.

By the time of the 2014 elections twenty-one states had enacted new restrictions on voting rights. Following the Republican triumphs in the state elections in 2014, forty new voter restrictions were introduced in seventeen states during the first few weeks of 2015 alone. By now, according to the National Council of State Legislatures, a total of thirty-four states have adopted some sort of voter ID law, and as of late March of this year thirty-two such laws were in effect.

For years, Republicans were more alert than Democrats to the many opportunities provided by controlling governorships and state legislatures. Right now, the Republicans are in total control of twenty-four states whereas the Democrats have total control of only seven. The lesson seems to be that once Republicans get total power at the state level, they find a way to rig the rules to keep the other side’s strongest constituencies from voting.

Senator Patrick Leahy, chairman of the Judiciary Committee when the Democrats are in control, has been trying to win bipartisan support for repairing the holes the Supreme Court shot in the Voting Rights Act law in the Shelby decision. Previous extensions of the law had been approved by overwhelming majorities in both chambers. One early ally was Republican Representative Jim Sensenbrenner of Wisconsin, formerly chairman of the House Judiciary Committee. Leahy also got the agreement of then Republican Whip Eric Cantor, who, like Republican National Committee Chairman Reince Priebus, believed that the party had to reach out to black voters if it was to win and that the Republican brand required that the party come off as sympathetic to minorities.

But once Cantor was upset in the Virginia primary in 2014 by someone even further to his right, Leahy could find no Republican supporters in the House—except for the now-isolated Sensenbrenner. It became clear that Speaker John Boehner wasn’t about to encourage his caucus to support voting rights. The current Republican southern delegations, including Texas, are too powerful for that. A congressional supporter of voting rights told me, “When Cantor went down, that was the death knell for Republican support for restoring the enforcement provisions of the Voting Rights Act.”

Leahy has shopped around in vain for a Senate Republican cosponsor. He spent weeks trying to convince Rand Paul, who showed mild interest, that it was in his and his party’s interest to be seen as supporting voting rights, but Paul has resisted, as have other Republicans who might have reason to want to appear to support them. They include Thad Cochran, who owes his reelection to black votes in Mississippi; Roger Wicker, also of Mississippi; and Steve Scalise, the House Republican whip whose moving into that job hit a bump when it was learned that he’d spoken to a group supporting the white separatist David Duke.

Numerous Republican leaders understand that their party cannot win future national elections as long as it’s seen as hostile to minorities, but because of the very rightward cast of its primary and caucus voters and the early primaries in South Carolina and Florida (and even the possibility of a regional southern primary), someone seeking the Republican nomination now is not likely to support voting rights for blacks.

There are ways for Congress to guarantee blacks the voting rights they are promised in the Constitution, starting with Article One, which says that states set “the times, places, and manner” of federal elections, but also that “the Congress may…make or alter such Regulations.” Those who want to reform the voting system extrapolate from this that the federal government can set standards for voting in federal elections. And this would affect elections for other state offices. (How can you have people be qualified to vote for their US senator but not their governor or county commissioners?) There could be federally maintained voter lists. The voting procedures could be overseen by impartial officials rather than by partisan hacks.

States could be required by federal law to make it easier to register. Quite recently Oregon adopted a system of automatic registration by mail of every citizen with a driver’s license. Such automatic registration takes place in a number of other countries and has been considered in other states, but it’s opposed by Republicans. (In Minnesota then governor Tim Pawlenty vetoed such a bill.) While such a system will likely expand voter participation, other means have to be found to help those without driver’s licenses to vote. Oregon was also the first to adopt mail-in ballots, a practice now followed by Colorado and Washington State.

Thus, solutions to suppression of minority voters aren’t mysterious, but because of the partisanship that now envelops the issue of voting reform it’s almost impossible to get anything done. In his book The Voting Wars, Hasen concludes that sometime in the future when there’s a razor-thin election we could again have a crisis such as the one in Florida in 2000, only the next one will be even more acrimonious, marked by unsubstantiated charges and inflamed by social media. “Political provocateurs,” he writes, “now aided by the social media, have spent the past decade fighting the Voting Wars in a way that will ensure that our next disaster will be far worse.”

Perhaps it will take another dispute such as Florida, 2000, or some other election calamity to get people stirred up enough to demand changes in the election system that would make it more fair and reliable. It has been 147 years since the adoption in 1868 of the Fourteenth Amendment guaranteeing blacks due process and equal protection under the law—which was the basis of the Brown decision on school segregation—and in 1870 the Fifteenth Amendment guaranteeing blacks the right to vote. The strongest trend in recent years has been to deprive blacks and other minorities of one of their most basic rights.

Closely aligned to the suppression of voting rights as an inhibitor of democracy is redistricting that follows each decennial census. Following the passage of the Voting Rights Act, as blacks succeeded in voting in vastly increased numbers, southern states tried to limit the effect of their votes. Some state offices were changed from elected to appointed. But the most widely used way to limit the effect of black votes was to redraw voting districts. It used to be that black leaders worked with white legislators to guarantee that there would be enough blacks in a district that they could elect a black to represent them. More recently, the problem has become that in redrawing districts some states pack as many blacks as they can into a district, so they can reduce the total number of blacks elected to office and have the rest of their candidates run in safely white ones—which also reduces black political power.

The redistricting of Alabama was recently rejected by the Supreme Court, but the celebrations by supporters of minorities’ voting rights may have been premature. Alabama’s redistricting plan was so blatant, putting far-apart, predominately black precincts together in the same district, that the Court in effect said, “Try again.” Few expect the next Alabama plan to be neutral in its allocation of the races among congressional districts. A Virginia plan was also rejected recently.

Another problem with redistricting is that it has increasingly polarized our politics. Political scientists argue that this phenomenon has been brought about not so much by redistricting as by people of like minds increasingly choosing to live in the same areas—or “cluster”—and voting in the same way. But according to Michael Li of the Brennan Center, who specializes in redistricting, studies thus far of the effects of “clustering” on redistricting are inconclusive.

Professor Sam Wang of Princeton, the founder and head of the Princeton Election Consortium, agrees. Moreover, he says that while redistricting is conventionally seen as a bipartisan practice, “confounding conventional wisdom, partisan redistricting is not symmetrical between the political parties.” Wang found that as a result of the redistricting that followed the 2010 census and also that year’s elections in which they did extremely well, Republicans had a greater advantage in House elections than the party breakdowns in the states would warrant. He adds that “through artful drawing of district boundaries, it is possible to put large groups of voters on the losing side of every election.”

In any event, there’s no question that redistricting has had a distorting effect on our politics. In a recent interview with Time, James Baker, deploring the partisanship in Congress and the lack of a political center, said, “Redistricting has got way out of hand.”

A highly important question about redistricting was brought before the Supreme Court in March of this year. Arizona had tried to depoliticize redistricting by setting up a nonpartisan citizens’ commission to draw electoral districts fairly. The commission drew the districts in 2001 but when it tried to redraw them again in 2011, the Republican-dominated state legislature sued, arguing that such commissions violated the constitutional clause that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

At issue is whether the commissions, which are often established through a state referendum, can be said to have been established by the legislature. In fact, state officials usually have some role in the establishment of a citizens commission. If, as many fear, the Court rules that the commissions aren’t constitutional, the results will be chaotic and could well go beyond just redistricting.

If the Court holds unconstitutional all voting plans adopted by measures on the ballot, a great many state laws will be rendered moot. In some states, for example, same-day registration and early voting were established as a result of initiatives or referendums. The Court could therefore nullify the power of the citizens of a state to take action on a broad range of issues. Such nullification would work both ways: Oregon’s law allowing voting by the mail was adopted by a ballot initiative. Mississippi established its harsh voter ID law through a referendum. Sometimes when the Court can foresee chaos from a decision it shrinks from making it; but that’s not a very comforting basis for hope that it will restrain itself.

The redistricting wars are likely to go on for some time. As of early April of this year, eighty-seven bills had been introduced around the country to reform redistricting practices. Twenty of them call for independent commissions; most of them try to cut back on gerrymandering. Two bipartisan bills have been introduced in the House that would encourage the establishing of independent commissions, or require the states to publish proposed redistricting plans online and give the citizens an opportunity to comment on them before they’re adopted.

Meanwhile the effects of redistricting—as well as restrictions on voting—take a place in distorting elections alongside the influence of big money in elections, which is both greater and less controlled than ever, and will be the subject of a second article.

—This is the first of two articles.