Democracy in America is only a little over five decades old. That’s difficult to square with the America that exists in the storytelling tradition: a brave experiment in a government run for and by the people. In reality, the country has always been defined as much by whom it’s kept from voting as by who is allowed to participate, and the ideal of democracy has always been limited by institutions designed to disenfranchise. Put another way: The great majority of all elections in American history would have been entirely illegitimate under modern law.
It seems even today’s elections would have difficulty meeting those standards. Claims of voter suppression have multiplied during the 2018 midterm-election cycle. Gerrymanders dilute black and Latino votes. Voter-ID laws in some states disproportionately affect people of color. Polling-place changes, lines, and irregularities still characterize the voting experiences of many communities of color. In Georgia, the Republican candidate for governor—the state’s secretary of state, Brian Kemp—is facing a lawsuit over allegedly racially biased voter purges. American democracy finds itself at a crossroads, and a future where more suppression is the norm seems like a strong possibility.
On Saturday, President Donald Trump ensured that the issue would be front and center as Election Day approached. “All levels of government and Law Enforcement are watching carefully for VOTER FRAUD, including during EARLY VOTING,” he tweeted. “Cheat at your own peril. Violators will be subject to maximum penalties, both civil and criminal!”
Trump’s tweet could be read straight, as a warning from the president against the threat of fraud. But that would ignore centuries of context. From the days of Jim Crow election rigging on, the specter of voter fraud has always been cover for disenfranchisement. American history is brimming with examples of strong-arm tactics used during elections. To wit, in 1987 the Republican National Committee’s Ballot Security Task Force engaged in such naked intimidation that federal courts bound the committee in a consent decree that just expired this year. Trump himself was sued by multiple state Democratic parties in 2016 after he encouraged supporters to “watch” polling places for illegal voting.
But Trump’s tweet is instructive in detailing just how voter suppression could carve out space at the edge of legality. The president has repeatedly peddled the falsehood that millions of noncitizens voted in 2016. The contagion of that misinformation spread, and began shaping policy. The claim was the basis for the creation of Trump’s voter-fraud commission, which disbanded in January amid lawsuits alleging that it was requesting voter data from states in order to disenfranchise citizens.
Kansas Secretary of State Kris Kobach, the GOP nominee for governor and the erstwhile architect of the voter-fraud commission, implemented his own statewide effort, using the prosecutorial powers of his office to attempt to uncover a conspiracy of noncitizen voters. He netted a grand total of nine convictions, mostly of people who’d accidentally turned in two ballots in different places. Kobach secured just one conviction of a noncitizen voter.
Georgia’s Brian Kemp has carried the banner, too. Using a program that Kobach developed called Crosscheck, which matches voter records to personal identification, Kemp’s office has purged hundreds of thousands of voters from rolls. The secretary claims that those measures have been taken in order to maintain election security, under the office’s duty to keep rolls up to date, secure, and error-free. But an onslaught of lawsuits in the past two years allege that most of the people purged are people of color.
Recent purges have dominated the race this fall between Kemp and Democratic nominee Stacey Abrams. In 2017, Kemp’s office purged a half-million people from the rolls, including more than 100,000 who seemed to be removed for not having voted in the prior election. This year, Georgia purged an additional 700,000. Aided by a new state law mandating “exact matches” between records, 53,000 people—80 percent of whom are people of color—have been moved to “pending” lists because of clerical errors in their registrations. And that’s just a sample of the ways that government interference has shaped the race: Shifting polling places and the use of handwriting analysis to throw out absentee ballots have also been reported.
Regardless of the outcome, these tactics will make an indelible historical mark on the Georgia election. In that, it’s the vanguard of a new norm rather than an outlier. Since the 2013 Shelby County v. Holder decision, in which the Supreme Court defanged federal enforcement of the Voting Rights Act, the Court has taken an ax to the stump of voter protections that remained.
In June of this year, the Court gave its blessing to aggressive voter purges, even those that all existing data indicate affect minority communities most. The Court has moved toward extending authorization for voter-ID laws, despite data showing the same. Adding to the Court’s finding in Shelby County that past disenfranchisement was no longer a valid factor in developing current protections against disenfranchisement, the Court argued that “good faith of [the] state legislature must be presumed,” when it upheld Texas congressional districts that were challenged as racial gerrymanders.
So far, the results have been undeniable. According to the Brennan Center for Justice, up to 2 million more people than expected have lost their voting status because of purges after Shelby County. Also according to the Brennan Center, 23 states have made their voting laws more restrictive since 2010, including six of the 10 states with the highest proportions of black voters. And that count doesn’t include North Carolina, the state with the seventh-highest population of black voters, where a battle involving voter ID, gerrymandering, and racial discrimination has dominated politics over the past decade. Nor does it include Texas, now a major battleground for voter-ID laws and gerrymandering plans that mostly affect its high population of Latino voters.
Proactive national measures to prevent disenfranchisement have all but been eliminated in the past five years. Those measures are the most important ones, as litigation—the only remaining remedy—requires constant vigilance by citizens and often takes place only after harms have already occurred and illegitimate elections have already been won. Even if the favored candidates of voters of color win future elections, the effort needed to reestablish a guarantee of voting rights and put the disenfranchisement genie back in the bottle will be massive.
It seems likely, then, that 2018 is a beginning rather than an ending. Whether or not Kemp or Kobach is elected, and whether the claims of suppression against them hold up in court, they are representative of the new incentives in play. The Voting Rights Act bent the status quo against itself, forcing a political system built almost entirely on exclusion toward democracy. But that job was never truly completed, and the siren song of those beholden to a shrinking demographic power has always been to resurrect the poll tax, or to reinvent it for a new age. The data are in. The new age is here.
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