In April of 2016, an obscure Republican congressman from Wisconsin declared that the state’s new voter ID law would finally put the state in play for the Republican presidential candidate. That fateful prediction came true when Donald Trump won the state by a mere 22,000 votes. A subsequent 2017 study showed that the voter ID law actually reduced turnout in Wisconsin by around 200,000 votes. Across the country in 2016, voter suppression was a key part of Trump and Republican victories in a number of tightly contested contests. With a President who has not expanded his base since that time and a number of Republican Senators also underwater, voter suppression will be an even more important element of Republican campaigns in 2020. Importantly, outcomes at the state level will determine who controls redistricting after the 2020 census, threatening the numerous Republican gerrymanders that currently exist.
A sign of what’s to come in November was what happened in Texas on Super Tuesday. In Houston, one voter waited nearly seven hours to finally cast his vote. Hours-long waiting times were not uncommon in Houston and surrounding Harris County locations and they were a direct result of actions taken by the Republican party in that state. Since the Supreme Court gutted the Voting Rights Act in 2013, the state has closed nearly 750 polling stations, mainly in minority communities. The county holding the city of Waco closed nearly 50% of its polling stations despite a growing population. Brazoria County, south of Houston, closed 60% of its stations and ended up in violation of the state-mandated minimum. The problems in Houston were exacerbated by the fact that Republicans refused to cooperate with their Democratic counterparts in handling a joint primary election. Republicans demanded that they get their own machines for the GOP primary, which obviously meant that there were fewer machines to handle the surge in Democratic voters. And for many hourly workers, hours-long lines to vote are effectively a poll tax, depriving some of income or even threatening their continued employment.
The polling station for the voter who waited nearly seven hours was located at the Texas State University. But, across the country, other red states have been doing everything in their power to make it harder for college students to vote. That often involves ensuring that all voting must be done off-campus, requiring students to find transportation to the polls. New Hampshire changed it’s residency requirements so that out-of-state college students who vote and have cars must now get New Hampshire driver’s licenses and car registrations. This effectively amounts to a poll tax on those students. Seven states, all won by Trump in 2016, do not consider college ID cards as sufficient documentation to vote. Those states are Texas, Tennessee, Arizona, Iowa, North Dakota, Ohio, and South Carolina. Arizona wants to go even further and is currently considering a new law that would prohibit the use of dormitory rooms as valid addresses for voter registration.
In 2016, Missouri passed a constitutional amendment that allowed the legislature to pass voter ID laws. However, the subsequent voter ID law that was passed was struck down in January of this year by the State Supreme Court on the basis that it violated the state’s constitutional right to vote. The law required a government photo ID but also allowed those without the appropriate ID to vote after producing other documentation and signing an affidavit. The wording of that affidavit, however, seemingly made the voter acknowledge they did not have the legal identification required to actually vote, potentially opening them up to prosecution for voting without the required ID.
Less than two months later, the Missouri House has already passed a revised version of the voter ID law that would require a person without the required government ID to cast a provisional ballot that would only be counted if the voter returned with a required photo ID later on election day or the signature on the provisional ballot matched the voter registration card. The new law does not specifically address the issue that the Supreme Court raised about the inability of transgender or nonbinary voters from getting a valid photo ID because of Missouri’s restrictive gender laws.
In Kentucky, the newly elected Republican Secretary of State is pushing a bill through the Republican-led legislature that would institute voter ID in the state in time for the 2020 election. The Secretary has made no secret of why he wants the bill passed this year, stating that he is worried about November’s battle for “a very competitive Senate seat”, namely Mitch McConnell’s, adding that he wanted “to get the message out [about voter ID] in this election year”.
A new tool in the GOP’s voter suppression arsenal is voter purges. The effort to purge over 200,000 voters from the rolls in Wisconsin was recently blocked by a state appeals court. In addition, that court overturned a lower court ruling that state election officials were in contempt of court for not having already purged these voters. The decision largely involved a technicality about whether the state elections commission or the local board of elections was responsible for enacting the purge. The case will now be appealed to the state Supreme Court.
Despite that probably temporary setback, Republican activists are trying to force voter purges in other battleground states. The Honest Elections Project has sent letters to the Secretaries of State in Colorado, Florida, and Michigan informing them that the voter rolls in some counties in those states had unreasonably high numbers of voters on their rolls compared to the actual number of eligible voters. The letters are a requisite prelude to suing these states to begin voter purges if they do not take appropriate action in response to these letters. In fact, the Project already has plaintiffs lined up in all three states, represented by the firm founded by a lawyer who has previously represented Trump, William Consovoy.
Even before this threatened lawsuit, in 2016, one county in Florida, Collier County, had moved over half of its registered voters on to the inactive list. And, of course, Florida is the state where the legislature is essentially trying to re-introduce a poll tax by forcing felons to fully pay all their restitution and fines in order to exercise their right to vote which was finally restored by a constitutional amendment that passed with 65% of the vote. The legality of that legislation is currently being contested in the state’s courts.
The Republican push for mass voter purges originally began in Ohio and the US Supreme Court provided its imprimatur for such actions in a 2018 decision. Now Ohio is pushing the envelope once again, by preventing those voters who have been arrested and jailed, but still have not been tried and convicted of a crime, from being able to vote, primarily by denying them an access to a ballot. In a remarkable ruling that relies on dissent in a 1974 ruling on voting rights that only mustered one other concurrent dissenting vote, the Sixth Circuit declared that “The State’s interests in efficiently allocating its election resources and administering elections in an orderly manner outweigh the moderate burden its disparate treatment of confined electors”. According to Demos, around half a million voters across the country who are incarcerated while still awaiting trial are unable to vote on election day.
Republicans often claim that voter ID ensures “ballot integrity”. But the party has been talking about voter fraud for nearly two decades and has yet to produce any evidence that voter fraud is even an insignificant problem. In fact, the two most recent attempts by the GOP to “prove” voter fraud, in Kansas and in Texas, have ended in abject failure, with the methodology used to advance those claims being shown to be laughably shoddy. Rather, the most serious case of electoral fraud in recent years was a years-long absentee ballot scam being run by Republicans in North Carolina.
From the country’s inception, there has been an ongoing battle over who has a right to vote, from extending the vote to emancipated slaves, to women’s suffrage, to reducing the voting age to 18. In every case, the forces opposed to extending or restricting the franchise were intent on undermining our democracy in order to maintain their own power. It is no different with the Republican party today. When we see long lines waiting to vote, it is not, as often portrayed by the media, a remarkable display of democracy. Rather, it is a remarkable failure of democracy, often willfully created to by those in power to remain there.
In fact, the writers of the Reconstruction Amendments in the immediate aftermath of the Civil War were well aware that states would still try to restrict voting rights now that slaves had been freed and given the right to vote. Because of that, they specifically wrote a provision to deal with such a possibility into the Fourteenth Amendment. Section 2 of that amendment states, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State”. In other words, states will risk losing their share of representation equal to the amount of voter suppression they engage in.
As Joshua Geltzer notes, Section 2 “may well be the Constitution’s most important lost provision…The Radical Republicans who crafted the 14th Amendment thought Section 2’s second sentence was quite important-critical, in fact, to ensuring the rest of the amendment’s guarantee of equality would become a reality, especially in the face of states sure to resist implementation of its guarantees. The Amendment’s framers worried, in particular, that recalcitrant states would respond to the formal expansion of the vote by devising new ways to abridge that vote. Section 2’s second sentence would be a powerful threat, saying that, should a state dare to try that”.
Besides the obvious issue with the fact that women have subsequently been given the right to vote, the real reason we never hear about this “lost” provision of the Constitution is that no one is willing or able to enforce it. According to Geltzer, “A key reason is that the clause doesn’t make clear how it is to be enforced-including, critically, by whom. This ambiguity has left Congress, the executive branch and the courts all uncertain about what role they can and should play in enforcing the clause, and thus generally backing away from trying to do so. Overall, it appears the reduction clause’s framers expected Congress, rather than the judiciary, to be the primary enforcer of the rule. And that includes determining when voting infringement has occurred, responding by depriving disenfranchising states of the level of representation in Congress, and, finally, figuring out when that representation should be restored”.
Congress did make one half-hearted effort in this regard in the 1870s in response to the emergence of Jim Crow laws that ended in failure. Others have tried to force a question about abridgement of voting rights on the Census but have been thwarted by the courts. In the end, Geltzer believes that Congress needs to at least pass a law that will begin collecting real data on voter suppression. That may not lead to actual enforcement of Section 2, but it may shed a disturbing light on just how much disenfranchisement currently exists and where it is occurring. It’s one of many things Democrats ought to take up if and when they ever control both houses of Congress.
Republicans are currently a minority party in this country but manage to wield enormous power through a combination of factors including the Electoral College, the small state bias of the US Senate, and, increasingly, efforts at voter suppression which includes political and racial gerrymandering. Voter suppression will not disappear when Donald Trump leaves the scene. Instead, it has become integral for Republicans to maintain power, both nationally and locally. As in 1965, when the Voting Rights Act finally made the Fourteenth Amendment’s promise of the right to vote a reality, it will take Democratic action in Congress to again fulfill the words of the Constitution.
Originally published at https://thesoundings.com on March 9, 2020.