Voting Rights and Voter Suppression in the Age of Trump

^{Originally posted 05/15/2017}

News in early May was dominated by Trump's firing of FBI Director James Comey, which Trump admitted to NBC News was related to what he called "this Russia thing with Trump." Pushed somewhat into the background, but with as much or greater potential to affect national politics was the executive order establishing the so-called "Presidential Advisory Commission on Election Integrity." Heading the commission with Vice President Mike Pence will be Kansas Secretary of State Kurt Kobach, who gained national attention for his hysterical allegations of widespread voter fraud, despite there having been only four documented cases in the entire 2016 election.

Trump introduced the current phase of his voter fraud allegations at a January 23 reception for Senate leaders, where he claimed without evidence that he would have won the popular vote if not for three-to-five million votes cast illegally. Hours later he made unsubstantiated claims of "voter fraud in Virginia, New Hampshire, and California." On February 9 he told a group of Senators that ineligible voters had been bused from Massachusetts to New Hampshire  — a claim repudiated by politicians and election experts in both states.

The next day, press secretary Sean Spicer claimed a 2008 Pew study "showed that 14 percent of people who voted were not citizens." The Washington Post was quick to debunk Spicer's claims, suggesting that he was likely referring not to a Pew study, but to a 2014 analysis of data from 2008 and 2010 by two professors at Old Dominion University in which 14 percent of participants in an opt-in Internet survey, who identified as noncitizens, also said they had registered to vote. The methodology of the study was widely criticized, leading to a revision of the original study. A 2012 Pew study had found problems with voter registrations, such as people registered in more than one state, and some deceased persons on voter rolls, but the study's author confirmed that there was "no evidence that voter fraud resulted." (The New York Times found that Trump adviser Steve Bannon, Trumps' youngest daughter Tiffany, press secretary Sean Spicer, Trump son-in-law Jared Kushner, and now Treasury Secretary Steve Mnuchin are all registered to vote in more than one state.)

In December 2016 the Times had contacted election officials in all 50 states regarding voter fraud and concluded "The overwhelming consensus: next to none." Twenty-six states and the District of Columbia reported no known incidents of voter fraud. These included states that leaned Republican, Democratic and "in-between." Eight more states reported only one allegation. Tennessee and Georgia reported "somewhat larger numbers" of inquiries or claims under review. But no states reported "indications of widespread fraud." (Kansas, notably, did not respond to the Times inquiry.)

The Brennan Center for Justice at NYU Law School, which monitors political institutions, surveyed local election officials in "42 jurisdictions in twelve states, including officials in 8 of the 10 jurisdictions with the largest populations of noncitizens nationally" in the aftermath of the 2016 election. Forty of the forty-two districts reported "no known incidents of noncitizen voting in 2016," and confirmed that the incidence in prior years was "not significantly greater." "In the ten counties with the largest populations of noncitizens in 2016, only one reported any instances of noncitizen voting, consisting of fewer than 10 votes." The survey found that "both the number of people referred for prosecution and the number of people merely suspected of improper voting are very small,"

The Brennan Center concluded:

The absence of fraud reinforces a wide consensus among scholars, journalists and election administrators: voter fraud of any kind, including noncitizen voting, is rare.

In a telling incident at the January reception Trump regaled his guests with a confused anecdote about German golfer Bernhard Langer being prevented from voting in Florida while brown-skinned people next to him in line  were able to cast provisional ballots. The story apparently made an impression on Trump, although Langer, a German citizen, is legally barred from voting in the U.S. Ironically the story is a good analogy for Trump's so-called voter integrity program, which, if past similar efforts are any guide, will disproportionately make it more difficult for minority and poor citizens to vote.

"Let’s be clear about what this is," the Guardian's Steven W. Thrasher wrote, "a white power grab." 

Kansas's Kobach, who has ties to the Federation for American Immigration Reform, identified as a hate group by the Southern Poverty Law Center,  helped write Arizona's notorious SB1070 law, which effectively allowed state police to demand proof of immigration status from people stopped for other reasons. 

As the Guardian's Thrasher put it:

Trump asking Kobach to help him restore integrity in voting is like Hitler asking Goebbels to help put out the Reichstag fire.

During his tenure in the Justice Department of the George W. Bush administration, Kobach helped design the National Security Entry-Exit Registration System, or NSEERS, which was widely understood to be a Muslim registry. The program, which applied to males over the age of 16 holding noncitizen visas, including tourists and students, circumvented concerns that it was singling out individuals based on religion by selecting based on country of origin, much like Trump's proposed immigration restrictions. As the McClatchy papers noted again recently, Kobach's Bush-era program did not catch any terrorists.

NYU's Brennan Center traced the origins of the current wave of voting restrictions to 2010. In that year state lawmakers began to introduce "hundreds of harsh measures making it harder to vote," ranging from "strict photo ID requirements to early voting cutbacks" to limits on voter registration. By 2016 the following states had voting restrictions in place for the first time in a presidential election:

• Alabama - Photo ID law passed by a Republican legislature and signed by a Republican governor. Initially required federal approval under Section 5 of the Voting Rights Act, but that provision was overturned by the Supreme Court in 2013. A proof-of-citizenship requirement is still being contested in the courts.
• Arizona - Republican-controlled legislature passed legislation limiting mail-in ballots and making it a felony to mail in another voter's ballot, even with their permission. In 2013 the Supreme Court invalidated Arizona's proof-of-citizenship requirement for federal voter registration forms, but it is still in place for state registration.
• Indiana - Passed by a Republican legislature and signed by a Republican governor in 2013, the law allows party officials to require proof of identification.
• Kansas - A proof-of-citizenship requirement was passed by a Republican legislature and signed by a Republican governor in 2011. It was ruled unenforceable in 2014, but is still being contested in the courts.
• Mississippi - A photo ID requirement passed by referendum in 2011.  Initially required federal approval under Section 5 of the Voting Rights Act, but that provision was overturned by the Supreme Court in 2013.
• Nebraska - Republican-controlled legislature passed a law signed by Republican governor in 2013 limiting early voting.
• New Hampshire - In 2012 Republican legislature passed a photo ID requirement and overrode a veto from the Democratic governor.
• Ohio - In 2014 Republican legislature passed and Republican governor signed legislation limiting early voting and eliminating a provision that allowed voters to register and vote at the same time. The restrictions are being contested in the courts.
• South Carolina - In 2011 Republican legislature passed and Republican governor signed legislation requiring a photo ID. A federal court put the law on hold until after the 2012 election, and voters with a "reasonable impediment" to obtaining a photo ID may cast a provisional ballot.
• Tennessee - In 2011 Republican legislature passed and Republican governor signed legislation reducing the early voting period and requiring proof of citizenship. Additional restrictions were passed in 2013 limiting acceptable IDs to those issued by state or federal governments.
• Texas - In 2011 Republican legislature passed and Republican governor signed legislation requiring a photo ID. The law was initially blocked by a federal court under Seciton 5 of the Voting Rights Act, but that provision was overturned by the Supreme Court in 2013. In 2016 the Fifth Circuit Court of Appeals ruled that the photo ID law discriminates against minority voters, and the state agreed to accept a wider variety of identification as valid.
• Virginia - Republican-controlled legislature passed a photo ID requirement and restrictions on voter advocacy groups, signed into law by Republican governor in 2013. The photo ID law was amended in 2015 and is the subject of ongoing litigation.
• Wisconsin - Republican legislature passed and Republican governor signed photo ID requirement law in 2011, and in 2014 limited early voting, completely eliminating weekend voting. Both measures are being contested in the courts.

A study by PrioritiesUSA reported in the Nation  found that "strict voter-ID laws, in Wisconsin and other states, led to a significant reduction in voter turnout in 2016, with a disproportionate impact on African-American and Democratic-leaning voters."  According to the study, "Wisconsin's voter ID law reduced turnout by 200,000." Trump won Wisconsin by 22,748 votes. African-American voters, and Democrats were disproportionately affected.

In states where the voter identification laws did not change between ’12 and ’16, turnout was up +1.3%. In states where ID laws changed to non-strict (AL, NH, RI) turnout increased less, and was only up by +0.7%. In states where ID laws changed to strict (MS, VA, WI) turnout actually decreased by – 1.7%.

In the six states that introduced stricter voter ID laws, the combined reduction in voters from 2012 was approximately 400,000. In Mississippi, Virginia, and Wisconsin, where new strict voter ID laws were introduced. turnout in counties with more than 40% African-American population declined by more than 5%.

The Nation notes that the PrioritiesUSA study, while not yet peer reviewed, agrees with a 2014 Government Accountability Office study which found "that strict voter-ID laws in Kansas and Tennessee reduced turnout by 2 percent, enough to swing a close election, with the largest drop-off among newly registered voters, young voters, and voters of color."

Nonetheless, as of February, 46 bills had been introduced in 21 states, mostly controlled by Republicans, that would make it harder to vote, according to the Brennan Center. In New Hampshire, proposed legislation would eliminate same-day registration. (Same day registration can boost voter turnout by up to 10 percent, according to some estimates.) Another New Hampshire bill could deprive students, military, and others who are only temporary residents of the state of the right to vote. And another would require that residents have lived in the state for 13 days before voting, and obtain a New Hampshire driver license within 60 days of registering to vote.

Virginia and Texas have introduced bills requiring strict proof of citizenship when registering to vote. Like New Hampshire, Connecticut, Illinois, and Iowa have proposed eliminating same-day registration. Also like New Hampshire, Arizona and Maine have introduced residency requirements intended to deprive temporary residents of the right to vote. Arizona, Montana, and New York have introduced bills that place "burdensome requirements" on community organizations that assist people in registering to vote, and increase penalties for alleged misconduct.

Another tool in the voter suppression arsenal is gerrymandering, or manipulating the boundaries of an electoral constituency so as to benefit a group or political party. A recent Brennan Center study found that redistricting led to a net Republican gain of 17 House seats. As political observer Taegan Goddard noted, "Considering that Democrats need 24 seats to regain control of the House of Representatives, this is highly significant."

Gerrymandering in North Carolina came before the U.S. Supreme Court recently in a case known as Cooper v. Harris. On May 22 the Supreme Court upheld a District Court's conclusions that "racial considerations dominated" when the boundaries were drawn for two election districts after the 2010 census. In addition to reaffirming that election districts may not be drawn based primarily on racial demographics, the Supreme Court decision may have advanced the principle that the law does not permit gerrymandering based on political party if that is essentially a proxy for gerrymandering based on race.

Election law scholar Rick Hasen called the Cooper v. Harris decision "a major victory for voting rights plaintiffs" Referring to two footnotes written by Justice Elena Kagan, Hasen wrote:

Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts.

Salon.com's Paul Rosenberg noted that partisan gerrymandering cases from Wisconsin and North Carolina will reach the Supreme Court soon. In June of 2016, Princeton neuroscientist and election researcher Sam Wang published an article describing three mathematical tests "to reliably assess asymmetry in state-level districting schemes...." Wang and colleague Brian Remlinger wrote in a recent LA Times op-ed piece that at least five Supreme Court justices, including Justice Kennedy have expressed an interest in a standard for assessing partisan gerrymandering, such as Wang described. 

A few days after the Cooper v. Harris decision, in another small victory for voting rights advocates, Governor Kay Ivey of Alabama announced that she had signed into law a bill that restored the right to vote to thousands of people with felony charges. Opponents of the law that was revised by the recent bill had long maintained that it disproportionately affected poor people of color.

Meanwhile, the newly formed Let America Vote filed an open records request with West Virginia's Secretary of State, Mac Warner, demanding documentation of the process his office used to purge 52,000 names from state voter rolls.

Despite some promising news on the legal front, commentators such as Sarah Kendzior and Ari Berman have warned  that preserving voting rights from continuing Republican attempts at suppression could represent a real challenge ahead for American democracy. "It doesn't matter how great your candidate is if people can't vote," Kendzior wrote recently. "It doesn't matter what their platform is if millions are disenfranchised."