Jurisprudence

Is the Assault on Voting Rights Getting Worse, or Are We Just Noticing It More?

Kemp at a podium, giving thumbs-up with both hands.
Secretary of State Brian Kemp addresses the audience and declares victory during an election watch party on July 24 in Athens, Georgia.
Jessica McGowan/Getty Images

Over the weekend, President Donald Trump threatened prosecutions against nonexistent voter fraud, a message likely aimed at intimidating voters and stopping some from voting. With Trump’s heightened rhetoric and a seemingly increasing number of stories about voter suppression around the country, it is worth asking: Has voter suppression actually gotten worse in the 2018 midterm election season? Or are we just hearing about it more thanks to the hyperpolarized political environment? The truth depends on which state you are talking about.

In many parts of the U.S., even in many Republican states, registering to vote and voting is becoming easier. But in some key Republican states, Supreme Court decisions have allowed states to put up new hurdles for voting. Just ask Native Americans in North Dakota, black voters in Georgia, or Latinos in Dodge City, Kansas. Whether or not these hurdles actually affect election outcomes, they are outrageous, unjustified, and a drain on state resources.

In some ways we are really talking about two Americas. In one part of America, voting is getting easier. Many blue states, and even some red ones, have moved to adopt automatic voter registration. Many red and purple states have much more generous periods of early voting than blue states; early in-person voting started Oct. 10 in Ohio, yet does not exist at all in New York. And both red and blue states have moved to adopt online voter registration, which is a convenience for voters and avoids errors in data entry. Other bipartisan reforms include the sharing of information across states through the ERIC database to avoid duplicate voter registrations.

That is all good news, and it is often ignored in the fight over voter fraud and voter suppression. Such actions deserve praise and support as election officials and legislatures do their jobs to ensure that all eligible voters can easily cast a ballot that will be fairly counted.

But there’s the other part of America too. There’s North Dakota, which changed its voter identification law after the razor-thin election of Sen. Heidi Heitkamp in 2012 to make it harder for Native American voters living on reservations and lacking a residential street address to be able to vote. There’s Georgia, where Secretary of State (and current gubernatorial candidate) Brian Kemp has been holding for administrative review up to 53,000 voter registration cards for failing to have an exact match (like a missing hyphen) between the official record of a person’s name and the name appearing on the registration card. And there’s Dodge City, Kansas, a Latino-majority city with only a single polling place for 27,000 people—a polling place that was recently moved out of town and a mile from public transportation for the 2018 midterm elections.

How have these jurisdictions been able to get away with this? To a large extent, we can blame the Supreme Court for failing to offer strong protections for the right to vote in the last decade. In 2008, the Supreme Court in Crawford v. Marion County Election Board upheld Indiana’s strict voter identification law against a challenge which argued that the law violated the 14th Amendment’s equal protection clause. In 2013, the court in Shelby County v. Holder struck down a key part of the Voting Rights Act, which required states with a history of discrimination in voting (mainly in the South, including Georgia) to get federal approval before making changes to voting rules. Before Shelby County, those states could not move or close a polling place without showing that the change would not make protected minority voters worse off. Now self-interested officials in those states can act—and, in the case of Georgia, are acting—with impunity.

Since Crawford and Shelby County, and especially since the election of the first black president in 2008, things have gotten much worse. A recent Vice report found that “in the years following the Shelby decision, jurisdictions once subject to federal supervision shut down, on average, almost 20 percent more polling stations per capita than jurisdictions in the rest of the country. There are now 10 percent more people per polling place in the formerly-supervised areas than in the rest of the country.”

Kansas was not subject to federal oversight, so when the state closes polling places or takes other actions that can disenfranchise voters, it takes a lot of legal resources to try to make things right again. Voter protection groups have been spread very thin, as Kristen Clarke of the National Lawyers’ Committee for Civil Rights Under Law told me in a recent episode of the Election Law Blog podcast.

Or take voter ID laws. More states have passed ever stricter voter identification laws. Although courts have required some states to make changes to their laws to ensure that burdened voters are not fully disenfranchised, this softening is only a partial measure.

Consider the situation in North Dakota. The state, which is the only one without voter registration, recently tightened its rules for producing proof of identification in order to be able to vote. One must show election officials proof of a residential street address. This law burdens Native American voters on tribal lands, who often do not have street addresses.

A federal district court put the law on hold as discriminatory, but an appeals court reversed that ruling and the Supreme Court refused to step in. Justice Ruth Bader Ginsburg, dissenting for herself and Justice Elena Kagan, believed the law would likely cause voter confusion, although she noted that “the unchallenged portion of the injunction permitting the use of more informal supplemental documents somewhat lessens this concern” for about 18,000 North Dakota voters who could be disenfranchised, including more than 2,000 Native American voters.

In the surviving portion of the district court’s injunction is a ruling that allows tribal authorities to create tribal identifications with residential addresses for use in voting. At least one of the tribes plans to station representatives at all polling places, ready to print tribal identification cards on the spot. North Dakota Secretary of State Al Jaeger has been noncommittal about how the state would treat such a plan.

And what about those 53,000 would-be voters—70 percent of whom are black—whose registration cards are now in the “pending” file at the Georgia secretary of state’s office? Those voters, if they are aware of it, can go to their polling place with a voter ID that is a “substantial match” with the voter registration information on file. The question of how “substantial match” will be determined, though, will vary from polling place to polling place depending on the decision of a deputized registrar trained by Kemp’s office, causing the potential for confusion and racial bias.

Meanwhile, in Dodge City, a motivated organizer could run buses on Election Day to take voters outside the city limits to help them exercise their franchise. Is anyone going to step up to do this?

Ultimately, it’s possible to claim that these voters are not literally disenfranchised because if they go over the right hurdles, they will be able to cast a ballot. But in order to exercise that franchise, they have to be aware that they have that right—and not stay home because they think they aren’t registered, or can’t vote, or won’t have transportation to the polls—and they have to jump through the precise right hoops.

All of this is being done to stop a phantom amount of voter fraud. I’ve been pointing out for the better part of this decade that voter identification fraud is virtually nonexistent. The evidence that voter fraud is a major problem has not gotten any stronger. A federal court strongly rejected a claim of mass noncitizen voting after a full trial in Kansas in a suit involving fraudulent fraud squad team captain Kris Kobach, the Kansas secretary of state and candidate for Kansas governor. The federal district court considering the residential address requirement in North Dakota concluded that “although the theoretical possibility of voter fraud exists with every election nationwide, the record before the Court has revealed no evidence of voter fraud in the past, and no evidence of voter fraud in 2016.” The state did not even contest this finding in the appeal that it won—it didn’t have to.

Given the workarounds to these voting hurdles and the vagaries of turnout, we cannot say whether these laws will swing Heidi Heitkamp’s re-election chances in North Dakota or help Brian Kemp or Kris Kobach win office. Sure, Democrats want to focus on that point, because they care who wins.

But the focus on outcomes obscures a fundamental point. These laws are always unacceptable, whether or not they swing elections. If the state is going to put a hurdle in front of voters who wish to cast a ballot, it should offer a good reason for doing so. Thanks to the Supreme Court, the states are not really even trying to offer those reasons anymore.

It’s outrageous, and it deserves everyone’s condemnation. It takes resources away from campaigning and get-out-the-vote efforts. It undermines the equality and dignity of each voter.

One day, maybe we won’t have two Americas, but a single America, where every eligible voter will be able to easily register and cast a ballot that will be fairly and accurately counted. One might have expected we would have had that by 2018.