A New War on the Vote
Sunday book excerpt: The Hidden History of the War on Voting
A New War on the Vote
While preventing people from voting has a long and sordid history in the United States (and, frankly, around the world), the modern-day Republican Party’s reliance on voter suppression as a primary tool to win elections kicked off in a big way in 1993. That was the year when 27 Democrats and one Republican cosponsored HR2, the National Voter Registration Act (NVRA), sometimes called the Motor Voter Act.50
In the House, it got 238 Democratic votes and 20 from Republicans;51 in the Senate, every Republican but two voted against it, while every present Democrat voted for it (Jay Rockefeller missed the vote).52
Several parts of the legislation freaked out the GOP, the most prominent being that it required every state to let people register to vote when they presented themselves at DMVs to apply for a new or renewed driver’s license (this part is called Article 5 of the Act).
Other objectionable language in the Act included its preamble, which numerous Republicans thought might cause no end of problems if the Supreme Court were ever to try to enforce it. The preamble to the bill, now Title 42, Section 1973gg, is a long, three-part run-on sentence that says, in clear and straightforward language,
The Congress finds that—
(1) the right of citizens of the United States to vote is a fundamental right;
(2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and
(3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.53
Republicans probably could have relaxed. The only significant ruling by the US Supreme Court citing the NVRA was in 2018, in Husted v. Randolph, in which Justice Samuel Alito wrote the majority opinion allowing John Husted, Ohio’s secretary of state, to continue with an aggressive purge of voters from that state’s rolls heading toward the 2018 election.54
In his dissent, Justice Stephen Breyer pointed out that around 4 percent of Americans move out of their county every year. Yet “[t]he record shows that in 2012 Ohio identified about 1.5 million registered voters—nearly 20% of its 8 million registered voters—as likely ineligible to remain on the federal voter roll because they changed their residences.”
Justice Sonia Sotomayor’s dissent was even more scathing. “Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters,” she wrote, “including programs that purged eligible voters from registration lists because they failed to vote in prior elections. The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.” She quoted the NVRA’s preamble and, essentially, accused the conservative majority (it was a 5–4 decision) of helping states engage in racial discrimination in the voting process.
Today’s Supreme Court notwithstanding, in 1993, Republicans couldn’t be so sure that the Court would uphold “the right of citizens of the United States to vote” and the “duty” of states to “promote the exercise of that right.” So they came up with a story that they started selling through op-eds, in speeches, and on Fox News and right-wing talk radio.
This story was simple. There’s massive voter fraud going on, where people are voting more than once in different polling places and doing so under different names. In addition, the Republican story goes, there are millions of “illegal aliens” living in the United States, and they’re voting by the millions (Donald Trump asserted that it was between three million and five million in the 2016 election),55 and they are able to vote because they’re not required to show positive ID proof that they’re eligible-to-vote citizens.
This was a huge step up from the old Republican strategy of simply discouraging or intimidating voters of color.
William Rehnquist, for example, was a 40-year-old Arizona lawyer and Republican activist in 1964, when his idol, Barry Goldwater, was running against Lyndon Johnson for president. Rehnquist helped organize a program titled Operation Eagle Eye in his state to aggressively challenge the vote of every Hispanic and black voter and to dramatically slow down the voting lines in communities of color to discourage people who had to get back to work from waiting hours to vote.
As Democratic poll watcher Lito Pena observed at the time, Rehnquist showed up at a southern Phoenix polling place to do his part in Operation Eagle Eye.56
“He knew the law and applied it with the precision of a swordsman,” Pena told a reporter. “He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they’d lived there—every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote.”57
Rehnquist was richly rewarded for his activism; he quickly rose through the GOP ranks to being appointed by President Nixon, in 1972, to the Supreme Court and then elevated in 1986 by President Reagan to chief justice, a position he used to help stop the vote recount in 2000 and hand the election that year to George W. Bush in the case of Bush v. Gore.
(Interestingly, two lawyers who worked with the Bush legal team to argue the case before Rehnquist included then-little-known lawyers John Roberts58 and Brett Kavanaugh.59 Bush rewarded Roberts by appointing him not just to the Court but directly to the chief justice position when Rehnquist died. Roberts was also a tie-breaking vote to allow Ohio to continue its voter purges in 2017, and he wrote the 5–4 decision that gutted the Voting Rights Act in Shelby County v. Holder in 2013.)
Operation Eagle Eye was one of thousands of such formal and informal operations across the United States. Even though the Republican Party was restrained by a consent decree in 1981 from such practices (and from caging), it largely ignored the consent decree and continued these sorts of practices right up until the decree was essentially overturned in the Shelby County v. Holder case and their efforts were legalized.60
Now what was once called caging—challenging voters’ registration status by, for example, sending out postcards to voters and then purging them from the rolls if they fail to return the cards—has been granted the seal of approval by the Supreme Court and, in the years since Shelby County, has spread to nearly 20 Republican-controlled states.
All of which again raises the fundamental question: Do Americans legally have a right to vote?
Is Voting a Right? Should It Be?
The framers of the Constitution were pretty skittery about the issue. The roughly half of the Constitutional Convention that represented slaveholding states didn’t want anything that might one day force their states to allow slaves to vote, and many of the Northern representatives were wary of too much democracy breaking out and leading to what John Adams referred to as “the rabble” from voting. And there was an absolute consensus that women should never be allowed to vote.
Thus, voting is only really addressed in the amendments to the Constitution, and in each case very, very carefully.
The 13th Amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Similarly, the 19th Amendment says, simply, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
And the 26th Amendment lowers the voting age to 18: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
But while each of these prohibits the prevention of people from voting because of their race, color, sex, or age, nowhere is there to be found in the Constitution an affirmative “right to vote” for all citizens.
To the contrary, in Bush v. Gore, the Supreme Court ruled that “[t]he individual citizen has no federal constitutional right to vote” for the president, because it’s actually a vote by proxy in which a citizen is voting for a member of the Electoral College, who will then cast the vote that counts for president.
That, among other arguments that were hotly contested in multiple dissents by the four Democratic-appointed justices, led the logic that shut down the vote count in Florida, which would later find, when the votes were recounted by a group of news organizations a year later, that Al Gore had actually won the state and thus the 2000 election.61
In a similar case just a few weeks before Bush v. Gore, the Republican majority on the Supreme Court ruled that the Equal Protection Clause of the 14th Amendment didn’t mean that we all have an equal right to vote. “The Equal Protection Clause does not protect the right of all citizens to vote,” the justices affirmed in upholding a lower court’s ruling that people in Washington, DC, are not entitled to representation in Congress.
As congressman and constitutional scholar Jamie Raskin, D-Maryland, wrote, while at least 135 countries have written an affirmative right to vote into their constitutions, “[by] my count, only Azerbaijan, Chechnya, Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore, and, of course, the United Kingdom (whose phony doctrine of ‘virtual representation’ the colonists rebelled against centuries ago) still leave voting rights out of their constitutions and therefore to the whims of state officials.”62
This led Representative Mark Pocan, D-Wisconsin (and cosponsors), to propose a simple amendment to the Constitution. In 2013, they introduced into Congress amending legislation that said, “Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.”63
Speaker of the House Paul Ryan, R-Wisconsin, refused to allow it to come to the floor for a vote, and it died in that congressional session; a similar fate has befallen efforts by Democratic senators over the years.
Such an amendment would completely flip upside down virtually all of the Republican Party’s many efforts to prevent people from voting. Instead of voters having to prove that they were eligible to vote, the government (from federal to state to local) would have to affirmatively prove, through due process, that they’d lost that right or weren’t eligible for it (presumably by conviction for treason or loss of citizenship).
With an affirmative right to vote in place, Rehnquist’s Operation Eagle Eye would have been illegal, as would the many state efforts to make it harder to register or to vote. It would criminalize efforts by state and local officials to close polling places, require strict IDs while closing DMVs, or arbitrarily engineer elections in ways that would make it more difficult to vote.
It would also require election officials to make sure that their operations were state-of-the-art and not vulnerable to hacking or malfeasance (particularly if the citizens’ right to have their vote counted was included in the amendment). Ending the Electoral College in the same amendment would be an added benefit.
Everything could change.
Numbers, Not Voters
Aside from outright attacks and procedural hurdles that suppress the vote and give Republicans an edge (more on those in the following chapters), there is another, two-pronged, attack in the Republicans’ war to preserve minority rule in America.
The first prong is that a faction of Republicans wants to find a new answer to the broad question “Who deserves representation in the United States?”
This question is as old as the country, and it was even re-answered with the ratification of the 14th Amendment. As Senator Jacob Howard, R-Michigan, explained when he introduced the 14th Amendment, “The basis of representation should depend upon numbers. . . . Numbers, not voters; numbers, not property; this is the theory of the Constitution.”
But this theory of the Constitution is being increasingly challenged by America’s right wing.
In 2016, the Supreme Court heard Evenwel v. Abbott, wherein two Texas voters had sued the state of Texas in an attempt to overturn the constitutional principle that “every person deserves representation.” As the New York Times reported in June 2019,
[the plaintiffs’] preferred method, shared by a number of conservative politicians, would erase from state political maps not only noncitizens, but also children—two groups that aren’t evenly distributed across states. The resulting maps would tend to shift power from the places where children and noncitizens are more plentiful to places where there are more older and white residents. At the state level, such maps would also strip from these groups a principle as old as the Constitution: that even someone who cannot vote still deserves representation.64
The Supreme Court ruled unanimously that the state could draw districts based on overall population—but the Court also left the door open as to whether states could choose to draw district maps based only on the voting-age population. In the words of the late Republican “redistricter par excellence” Thomas B. Hofeller, such maps in Texas “would be advantageous to Republicans and non-Hispanic whites.”
Hofeller drew thousands of maps in his life—thousands of permutations of state maps drawn and redrawn to find all the ways that Republicans could gain electoral advantages without violating the letter of the Voting Rights Act. When he died, Republicans had no idea that he had saved those maps on hard drives. They also had no idea that Hofeller’s daughter would discover those hard drives—and then turn them over to Common Cause, a government accountability group. When Common Cause went through his files, they found a trove of prepared maps for redistricting Republican-controlled states such as Texas and North Carolina.
The files, along with Hofeller’s notes, serve as a smoking gun of the Republicans’ concerted effort to draw new districts that nominally meet the criteria of the Voting Rights Act but functionally give “Republicans and non-Hispanic whites” an electoral advantage as a nationwide minority.
A key aspect of his plan was that Republican-controlled states would be allowed to count their population based on voting-age population instead of total population, because blacks and, particularly, Hispanics tend to have more children than whites at this time.
Stacey Abrams Was Robbed
The white men who run most of the elections in Georgia were never going to let a black woman become governor. Or, like their colleagues in Florida, any African American. But especially Stacey Abrams, a smart (Yale Law School) young woman of color who had been a highly effective legislator in the Georgia General Assembly.
There’s history here. In 1867, a total of 33 black men were sent to the Georgia Constitutional Convention (to help write a new, post–Civil War, non-slave-state constitution for the state), where they promptly introduced provisions calling for free public school for black children, the right of black men to serve on juries overseeing cases involving white defendants, and doing away with debtors’ prisons in the state. None made it into the constitution.
The following year, 32 black men were elected to that state’s General Assembly, where they introduced legislation banning racial discrimination on public transportation, protecting black laborers from abuse, and ensuring “the protection of [black] citizens’ rights.”
Within a few months, the white men of Georgia’s legislature had unseated their black colleagues, an event that reverberated all the way to Washington, DC, where unionist Republicans charged that this was proof that Georgia was still not politically reconstructed after the war.
In 1870, the US Congress allowed Georgia back into the Union, in part because Georgia’s General Assembly passed two of the black members’ bills, providing for nondiscrimination on public carriers and the creation of a public education system. Twenty-six black men were elected that year and allowed to serve.
But the black members of the Georgia legislature suffered terrible harassment, both from their colleagues and from members of the newly re-formed Ku Klux Klan, the nation’s preeminent domestic terrorist group, which had begun an aggressive program of lynching, robbery, rape, and terror—particularly around election time—throughout the South. Only nine black men were elected in 1872, and within a decade the legislature was again entirely white.
Fast-forward to 2013. For three generations, the Voting Rights Act of 1965 had constrained Georgia’s white politicians in their efforts to keep the state’s power structures in white hands by preventing black people from voting. Every time they wanted to close a voting precinct in a black neighborhood or shorten black polling place hours, they’d had to submit the proposal to the US Justice Department for approval, which almost never was granted.
Every time they wanted to purge large numbers of black people from the voting rolls, they had to look over their shoulders at the Department of Justice (DOJ) and worry.
They couldn’t introduce bizarre anti-voting laws like the “exact match” law that required a voter’s registration card to exactly match his or her main form of ID, allowing polling station workers to disqualify voters—as they saw fit after checking out the color of the voter’s skin—based on a period after their middle initial appearing on their ID but not their registration form, for example.
Republican Senator Brian Kemp of Georgia had introduced an exact match bill in 2008; it was shot down the next year by the DOJ as being discriminatory. But that was before 2013, when, in the case of Shelby County v. Holder, the Supreme Court eliminated the requirement that laws or rules like exact match had to be precleared by the DOJ before Georgia could put them in place.
Thus, when Kemp became secretary of state and was in charge of all voting in the state of Georgia, and the state no longer had to attend to the Voting Rights Act because of the Shelby County case, he reinstated exact match just in time for the 2018 election and used it to disqualify the registrations of more than 50,000 mostly black voters.
It was a decision that not only benefited pretty much every Republican in the state running for election or reelection in 2018, but also hugely benefited Kemp, who was Stacey Abrams’s opponent in the gubernatorial race that year.
Race-based voter suppression has a long history in America. But the Republican response to the election of America’s first black president was probably the most dramatic increase in these efforts in the lifetime of anybody alive today.
During the eight years that Barack Obama was president, seven of the 11 states with the largest black populations passed aggressive voter suppression laws. Nine of the 12 states with the largest Hispanic populations did the same. And nine of the 15 states that required preclearance under the Voting Rights Act passed, after the Supreme Court gutted that law, draconian voter suppression laws that principally affected people of color, college students, and people old enough to be on Social Security.65
States that had large black populations—like Georgia—even shut the polls the Sunday before Election Day on Tuesday, because black churches had been organizing very successful “souls to the polls” voting drives after church services. Georgia State Senator Fran Millar said that he and other Georgia Republicans were “investigating if there is any way to stop this [voting] action [by black people]” and that they “will try to eliminate this election law loophole [early voting on Sundays] in January.”66
Election loophole? one might ask. As Wendy Weiser, who directs the Brennan Center for Justice’s Democracy Program, wrote for the American Prospect, “An Ohio official, explaining his 2012 vote to limit early voting hours, said: ‘I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban [read: African American] voter-turnout machine.’”67
Republican-controlled states across America passed hundreds of laws to make it harder for racial minorities, as well as young people and the elderly of all races, from voting, with the most severe passed in 2015 and 2016. The Brennan Center for Justice documented those states in which Republican legislative majorities made such changes just in 2016:
In Montana, civil rights groups were banned by law from helping people cast absentee ballots.
North Dakota passed a strict voter ID law.
South Dakota made it much harder for ex-felons to get back their right to vote.
Nebraska cut back days for early voting.
Kansas required both proof of citizenship and government-issued photo ID.
Iowa restricted voter registration drives, passed a strict ID law, made early and absentee voting harder, and cut the voting rights of ex-felons.
Wisconsin passed a strict ID law and limited early voting.
Illinois curbed voter registration drives.
Missouri passed a voter ID law.
Indiana passed a law to institutionalize voter purges and restricted the kinds of ID that can be used.
Ohio cut early voting and made it harder to cast an absentee or provisional ballot.
West Virginia cut early voting from 17 days to 10 days.
Virginia made it harder for groups to register people to vote and passed a draconian voter ID law.
North and South Carolina both put voter ID restrictions in place.
Georgia passed Brian Kemp’s exact match voter registration law, as well as voter ID.
Florida cut early voting, passed laws threatening to imprison people improperly running voter registration drives (causing the League of Women Voters to stop registering people in that state), and made it harder for ex-felons to recover their voting rights.
Alabama passed severe ID restrictions.
Mississippi passed a voter ID law, as did Tennessee and Arkansas.
Texas curbed voter registration drives and passed an ID law.
Arizona limited mail-in ballots.
Rhode Island passed an ID law, as did New Hampshire, that specifically made it much harder for college students to vote.68
In 2019, in response to 2018 Democratic gains in Arizona, Kentucky, and Texas, as of this writing all three states have Republican-sponsored legislation in the pipeline for the 2020 election to make voting or registering voters harder. Techniques include making it a go-to-prison crime for making any mistakes on your voter registration form in Texas; Tennessee is similarly threatening people doing voter registration drives with prison if there are errors on the forms they turn in; and Arizona is making the entire voting process more complex.69
Meanwhile, Republicans were vigorously taking people’s names off the voting rolls through a variety of purge methods.
The Brennan Center found that just between 2014 and 2016, in the two years leading up to the presidential election, over 14 million people were purged from voter rolls, largely in Republican-controlled states. Brian Kemp purged over a million in Georgia alone.
Calling the findings “disturbing,” the Brennan Center noted, “Almost 4 million more names were purged from the rolls between 2014 and 2016 than between 2006 and 2008. This growth in the number of removed voters represented an increase of 33 percent—far outstripping growth in both total registered voters (18 percent) and total population (6 percent).”70
In the minority voting precincts that had been overseen by the DOJ back when the Supreme Court’s Shelby County decision stopped the feds from looking over the shoulders of state officials in those places with a long history of race-based voter suppression, Republicans totally closed 868 polling places between the 2013 Shelby County decision and the 2016 election.71 The result is that between the 2012 and 2016 elections, black voting participation fell nearly 7 percent.72
The story told by Republicans was that the drop came about because Hillary Clinton wasn’t as popular as Obama and she wasn’t black. But even in states and counties where black people were on the ballot, there was still a large drop in black voter participation. Although the Hispanic population in America is among the fastest-growing ethnicities, Latinx voters fell by .4 percent in 2016.
The only reasonable explanation is that the GOP’s voter suppression efforts were successful.
In Georgia, they worked particularly well. Kemp had used several different voter suppression methods, from voter ID to massive voter purges to closing or time-limiting DMV offices that could issue IDs in black areas while extending their hours in white neighborhoods. He closed more than 200 polling places, mostly in poor and minority neighborhoods.73
Out of over 3.9 million votes cast in Georgia, Kemp won by a mere 55,000, about the same as the number of people he’d forbidden from voting because there wasn’t an exact match of the middle names or initials or commas on mostly black voters’ registration forms submitted in the months running up to the election.74
Not to mention over 1.5 million voters he’d removed from the rolls—such as Martin Luther King Jr.’s cousin, 92-year-old Christine Jordan, who was one of thousands turned away at the polls or given a provisional ballot that was never counted.75 Jordan had been voting every two years at the same precinct for a full 50 years until Kemp’s radical administration removed her name from the rolls.
Stacey Abrams ran a great race, and as Hillary Clinton later pointed out, she lost the election only because of voter suppression efforts by Brian Kemp and the GOP.76
Stacey Abrams’s story isn’t just a story about Georgia. It’s the story of a political party that has lost touch with average American voters and has made the deliberate choice to hold power by a variety of forms of election manipulation and, in some cases, outright fraud.
The stakes are high: control of state and federal government. Meanwhile, the risks are low. Several people of color have been sent to prison for voting when they shouldn’t (because they were ex-felons and didn’t know about the law disenfranchising ex-felons), but the white Republicans who put into place and administer these modern-day Jim Crow systems are almost never prosecuted. Worse, they usually are well paid and rapidly climb the political ladder.
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