A New War on the Vote

Your weekly excerpt from one of my books. This week: "The Hidden History of the War on Voting"

The Republican War against your right to vote. Over the next few months the entire book will be here, new chapters posted every Sunday, for subscribers to read at no cost. If you want to get a physical book to mark up or share with others, just click on the picture above, visit your local bookstore, or check your favorite online seller.

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 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, three lawyers who worked with the Bush legal team to argue the case before Rehnquist included then-little-known lawyers John Roberts,58 Amy Coney Barrett, 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?