In a 2013 ruling, the Supreme Court of the United States gave states more power to implement election laws without clearance from the federal government. Since then, several states have enacted voting restrictions that disproportionally affect racial minorities, women, youth, seniors, and those with disabilities. Today, the right of the voter is being desecrated for the purpose of political gain and power. Look no further than this year’s midterm elections.
A Brief History of Voting Rights in the United States
The 15th Amendment to the Constitution declares that the “right of citizens 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.” Although ratified in 1870, it did not ensure the full enfranchisement of all American Citizens. Women and Native Americans were unable to vote until 1920 and 1924 respectively, and the voting rights of African Americans were still – in spite of the 15th Amendment – unrecognized. The Voting Rights Act of 1965 was ultimately passed due to persistent pressure from Martin Luther King, Jr. and other civil rights leaders, who spearheaded nonviolent protest marches in Selma, Alabama. The televised footage of police shooting tear gas and trampling protesters is what would catalyze President Lyndon Johnson’s action on voting rights legislation. The act prohibits every state and local government from imposing any voting law that results in discrimination against racial or language minorities. Other provisions outlaw literacy tests, and similar means that were historically used to disenfranchise minorities.
Fast forward to 2013, and the U.S. Supreme Court rules in Shelby County v. Holder that a section of the Voting Rights Act is unconstitutional. Section 4(b) identifies jurisdictions with particularly egregious voter suppression records. Section 5 requires these specific state and local governments to obtain federal preclearance before any change in voting laws or practices. The Court decided that Section 4(b) is no longer responsive to current needs and is therefore a burden on the constitutional principles of federalism and state sovereignty. Although Section 5 remains intact, it is unenforceable until Congress enacts new legislation to update 4(b).
In the majority opinion, Chief Justice John Roberts wrote that the Act was immensely successful “at redressing racial discrimination and integrating the voting process.” The Court Majority added, “Regardless of how to look at the record, no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.” Justice Ruth Bader Ginsburg wrote the dissenting opinion, in which she acknowledged the decrease of voting discrimination in the covered jurisdictions since 1965, but attributed this to the Act itself, noting,
throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Efforts to Suppress the Vote Persist
According to the Brennan Center for Justice, a nonpartisan law and policy institute at NYU School of Law, 24 states have enacted new voting restrictions since 2010. Voting restrictions are manifested in several forms:
- Stricter voter ID requirements
- Making it more difficult to register
- Cutting back on early voting opportunities
- Limiting the restoration of voting rights for people with past criminal convictions
A majority of states that have passed voting restrictions are controlled by Republican lawmakers, who point to voter fraud as the reason for implementing such measures. However, there is extensive research that shows voter fraud to be negligible. According to a 2012 investigation out of Arizona State University, there were 2,068 alleged election fraud cases between 2000 and part of 2012. During this period, 620 million votes were cast in national general elections alone, which means that there were 0.000003 alleged cases of fraud for every vote cast in general elections, and 344 fraud cases per national general election (in each, between 80 million and 135 million people voted). There are numerous studies that come to similar conclusions. So, why do states continue to impose restrictions when there is no evidence to suggest that fraudulent voting threatens the democratic process? Republican consultant, Carter Wrenn, makes no attempt to hide his party’s true intent. As reported in the Washington Post, he says:
Of course it’s political. Why else would you do it? Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was. It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”
There is a wealth of research on voter suppression and how various tactics can disproportionally disenfranchise minority groups. In Michigan’s 2016 general election, voters without an ID were able to vote after they signed an affidavit. Researchers Phoebe Henninger, Marc Meredith and Michael Morse collected these affidavits to identify voters who would have been turned away under a stricter policy (i.e. in Georgia, Virginia, or Wisconsin). They found that 28,000 votes, or 0.6% of 2016 Michigan voters, lacked photo ID. Those 28,000 voters were more nonwhite and more Democratic than the Michigan electorate overall. Henninger et al. concluded that nonwhite voters were between 2.5 and 6 times as likely as white voters to lack voter ID. Since minority Americans are less likely to have flexible work hours or own cars, they might find it more difficult to afford an ID, or access a distribution location. Furthermore, they may rely more on early voting opportunities, or require a voting place that is easy to get to by foot or public transportation. These limitations can also drastically affect those with disabilities and seniors.
While it is true that voting restrictions have little impact on the outcome of elections, several high-profile midterm elections were decided by fine margins, and some have yet to be decided. In Georgia, the Republican candidate Brian Kemp leads Democratic candidate Stacey Abrams with 50.3% of the vote. Votes are still being counted, and if Kemp drops below 50%, there will be a runoff. The difference in votes is about 60,000, and there are several thousand absentee and provisional ballots to be counted. Abrams would need to net more than 26,000 votes to deny Kemp a majority. Kemp, who failed to resign from his role as Georgia’s Secretary of State until just a few days ago, has carried out mass purges of voter rolls to remove from the records those who are deceased as well as people who have not voted in recent elections. His office also put 53,000 voter registrations on hold, nearly 70 percent of which are for black voters. This was executed using an error-prone “exact match” system, which prevents voter registrations if there are any name discrepancies (e.g. dropped hyphens), with other government records.
In North Dakota’s senate race, Democratic senator Heidi Heitkamp was up against a different set of tactics. After she barely won in 2012 with a strong Native American coalition of support, Republicans at the state level introduced a new requirement that voters have a current residential address in order to vote. Many Native Americans live on reservations, and only have PO boxes. It would appear that this law was implemented to curb the voting rights of Native Americans, who for the most part supported Heitkamp. Although groups like Native Organizers Alliance and Four Directions worked diligently to organize and get-out-the-vote, the Republican candidate Kevin Cramer won by about 10 percentage points – a result that can be attributed to the political climate, and a state that has historically voted Republican.
They didn’t need an address when they took our children and rounded them up into boarding schools, and they didn’t need an address when they conscripted us to fight in the military and make a worthy and honorable sacrifice,” commented Iron Eyes, who is a prominent American Indian activist, and a member of the Standing Rock Sioux Tribe. “But now they need our address when we want to exercise our right to vote.” He adds: “All we want is our vote.”
What’s at Stake
Regardless of the extent to which voter suppression influences election results, being able to vote should be a right for all, not a privilege for most. The insidious attempts to deprive people of this right in the name of voter fraud is ironically – a fraud. We must ask ourselves whether this is nothing more than a sophisticated version of Jim Crow-style literacy tests, and other antiquated absurd requirements. Ed Harbison, a Democratic state senator from Georgia, reflects on “white folks telling his mother she couldn’t vote unless she could answer how many beans were in a jar, or how wet water was.” He says, “it’s a different time, but it feels like the same game plan.”
Voter suppression isn’t only about the restrictive legal mechanisms put in place. Take the voter ID law as an example – it is likely to reduce turnout both by preventing some people who show up at the polls from voting and by deterring others from showing up in the first place. Abrams, who is running for Governor of Georgia, got to the core of the issue at a pre-election rally last week: “We lose elections not because people can’t vote, but because they don’t know why they should vote.”
Read full Shelby County v. Holder decision below:shelby
Text by William Zahn, Diálogos Journal.
Featured image by Ashley Riegle, ABC Network News.