How much damage occurred in 2016, and what’s in store for 2018 and beyond?
A question—one of the many—hanging over the 2016 election is the impact of state laws and administrative techniques designed to make it more difficult for people to vote. How were people affected, and to what degree did these practices alter the election’s outcome?
And what is going to happen in 2018, as a national administration committed to depressing the right to vote works with state allies? Next year is an off-year election when factors influencing turnout, even marginally, could be crucial. Conversely, what forms of resistance are already occurring, and how effective will they be in protecting and expanding the franchise?
In 2016, other factors affecting turnout included the Russian hacking, the Comey interventions, the enthusiasm gap among Obama voters, the lack of a clear economic message and other missteps of the Clinton campaign itself—the list goes on. So it isn’t surprising that attempts to quantify the impact of voter suppression have been complicated.
But if we look at just three states that could have made the difference in the presidential election—Wisconsin (Trump won by about 22,000), Michigan (11,000), and Pennsylvania (71,000)—all three of them had significant legislative and administrative actions that discouraged or prevented tens of thousands of voters from participating, and in some cases blocked recounts.
Wisconsin. While there is some dispute over a widely used number of 200,000 who were unable to vote due to Wisconsin’s voter-ID law, there is no doubt that the law, enacted in 2011, influenced played a major role in the surprisingly low turnout among Democratic-leaning voters. Story after story, such as those described in an Associated Press story from May 14 , showed how citizens struggled unsuccessfully to cast their votes. Voter turnout in Milwaukee, where 70 percent of the state’s African American population lives, decreased by 13 percent; this meant 41,000 fewer votes. Milwaukee Election Commission Executive Director Neil Albrecht observes, “We saw some of the greatest declines in districts we projected would have most trouble with voter-ID requirements.”
Pennsylvania. Voting advocates in Pennsylvania like Erin Casey, executive director of Pennsylvania Voice, say that the peak of voter-suppression activities occurred in 2012. The strict voter-ID law that was passed that year was overturned by Pennsylvania courts, and some of the voter-discouraging activities documented from 2012 were lessened in 2016. However, one lingering problem was the processing of voter registration forms.
At least 26,000 Pennsylvanians were potentially disenfranchised, despite having submitted a valid voter registration application on time. That number could increase if the Department of State or other agencies investigate further. The majority of disenfranchised voters were in Philadelphia.
In addition, Pennsylvania is one of only nine states that don’t have any of these tested reforms: early voting, same-day registration, no-excuse absentee voting, or pre-registration of 16- and 17-year-olds. And the Keystone State is a member of the Kris Kobach-initiated Interstate Crosscheck Program, which resulted in hundreds of thousands of “potential duplicate voters” (different people with the same name) being sent to Pennsylvania officials for possible removal from the rolls. Recently, on June 30, Governor Tom Wolf took a strong stand in opposition to the commission’s data request, and to the Crosscheck program overall.
Michigan. In Michigan, where Bloomberg Businessweek quoted a Trump campaign official in October saying they had a three-pronged voter-suppression campaign in operation, the voter-ID law and overly conservative interpretations of it (many voters were not told they could sign an affidavit if they lacked acceptable ID) clearly discouraged many voters. Michigan is another Crosscheck state, where 500,000 “potential duplicates” were found, and at least 55,000 voters were taken off the rolls as a result. Michigan is also another state where a recount was cut short, even though large numbers of ballots in the Detroit area were “spoiled” when machines failed to read them properly, though the voter’s intent was clear on examination. All this had a cumulative impact that likely exceeded Trump’s 11,000-vote margin.
IN ALL OF THESE states, and others, the impact of voter suppression laws and practices would have been much larger if not for the substantial and effective pushback by advocates for a full and inclusive democracy. Many of the laws were set aside, or substantially weakened, by litigation that challenged the racially discriminatory intent and impact. In addition, organizations monitoring and working with local election officials, coupled with strong public education campaigns about new ID requirements in a number of states, helped mitigate the confusion and discouragement these laws are intended to sow.
At this point, it is critical for inclusive democracy advocates to look ahead to 2018 and then to 2020. The contours of the battlefield will have some of the same elements, but many things will be different. What are the new strategies and arenas of voter suppression to look out for? Here are some of the places to focus.
The Kobach Commission (Of Course). As ineptly as the commission began its life, and as effective and as broad as the immediate resistance was from election officials of both parties as well as by advocates, Kris Kobach will continue his Inspector Javert–like efforts to find fraud. The commission is already renewing its high-pressure requests for state information. Significantly, the commission’s moves will also help give a roadmap for where the vote suppressors are going.
New Emphasis on Voter Purges. Critics of the commission are concerned that the information it gathers will serve as pretext for stricter voter-ID laws, and that may well be the case. But the more immediate result will be to put far greater emphasis on “cleansing” the lists. As Vanita Gupta, new president of the Leadership Conference for Civil and Human Rights, recently wrote, the Justice Department has made a “virtually unprecedented request” that 44 states turn over the lists and describe their purging procedures—almost certainly the prelude to a national voter-registration list that will be pruned of duplicate names—a notoriously overbroad mechanism. A broad-based attempt to push eligible voters off the rolls will be a central focus of the fight.
Significant battles are already going on in Ohio and Georgia. In Ohio, in the case of Husted v. A. Philip Randolph Institute, the Ohio ACLU and Demos have challenged the purging procedures used by Secretary of State Jon Husted as a violation of the requirements of the National Voter Registration Act (NVRA), which says that a purging process cannot begin just because a voter has not voted. The U.S. Sixth Circuit Court of Appeals ruled that Ohio’s procedures are indeed invalid, and the case has been accepted for review by the Supreme Court.
In Georgia, a similar case, Common Cause v. Kemp, has challenged Secretary Brian Kemp on that state’s purging procedures, which have erased more than 500,000 voters from the Georgia rolls. The case is now pending before the 11th Circuit Court of Appeals.
A Justice Department on the Wrong Side? Last year was the first presidential election without the strong protections of the Voting Rights Act of 1965, due to the Supreme Court’s decision in Shelby setting aside the use of preclearance. Bad enough. But the effectiveness of the still-existing provisions, and laws like the NVRA, require a Justice Department committed to protecting the vote for all. However, this Justice Department seems far more likely to be committed to purging the rolls and suppressing the vote. They are the muscle behind the Kobach Commission’s fishing expedition. In the Ohio purging case, the Justice Department has up until now been on the side of the plaintiffs; what position it takes from here is uncertain at best.
The National Voter Registration Act. We already know that Kris Kobach has had his sights on eviscerating the NVRA, thanks to the now-famous photograph of him bringing a sheaf of papers with NVRA amendments clearly visible to Trump’s Mar-a-Lago doorstep, and by the good work by the ACLU to jump on the case and demand public access to the files. So it is very possible that attempts will be made to weaken this landmark law. This has long been a crusade of some state and local election officials who have chafed under the act’s requirements to make significant efforts to register new voters through mail-in voting and public agency registration. But even more chilling is the possibility that the NVRA could be used as a sword, not a shield. Its provisions limiting purging procedures could be used by Trump Justice Department to expedite purging.
The Interstate Crosscheck Program. As Kansas Secretary, Kris Kobach introduced the Interstate Crosscheck Program, in which states share data from voter lists ostensibly to eliminate duplicate registrations. Twenty-eight states are now part of the program, although three—Oregon, Washington, and Florida—have dropped out recently. The Crosscheck Program, with its emphasis on shrinking the lists, rather than on keeping them accurate while ensuring that people are not wrongfully dropped, uses procedures that create large numbers of false matches. These huge numbers of potential duplicates are then sent to the states, leaving it up to state and local officials as to how they use the lists they are given. A recent study of Crosscheck in Iowa found that fully 99 percent of records sent to Iowa as potentially duplicate registrations were in fact not such at all.
The Electronic Registration and Information Compact (ERIC). The other multi-state voter-registration matching program originally initiated by the Pew Charitable Trusts is far more alert to the problem of “false positives.” It starts with the same initial data, but runs it through multiple screens of motor vehicle information, social security death lists, the National Change of Address system, and several others, which drastically reduces the possibility of erroneous purging. It has proven to be a far better way for states to keep lists clean and also keep all eligible voters on the rolls.
Fight Back, 2018-Style. I wrote in a recent piece that from a legislative point of view, the bills passed in 2017 were not a blizzard of suppression items. Pushback from the pro-democracy community—in legislatures, in litigation, in public education, and other ways—was effective in defeating or weakening some of the intended voter-discouraging legislation. And litigation efforts have been singularly effective in dismantling many schemes of suppression over the last five years.
As 2018 approaches, planning and mobilization have already begun. The rapid response to the Kobach Commission was a good case in point. There is an ongoing “Pence-Kobach Strategy Group” following and responding to every twist and turn in this ongoing saga. In Florida, the Second Chance ballot initiative, which will expedite the restoration of voting rights for Floridians with felony convictions, is well on its way to qualifying for the 2018 ballot, and litigation is also moving forward to lift the restrictions on the 1.5 million people there whose voting rights have been denied.
There is also renewed focus on secretaries of state and other state and local election officials and on the critical role they play. As Ellen Kurz recently wrote in The Hill, secretaries of state are “democracy’s first responders.” One primary area of focus, professor Lorraine Minnite of Rutgers University emphasizes, should be on transparency and accountability of the election process at the local level. This includes nonpartisan post-election audits to check how many ballots were cast, how many were counted, how many were canceled or challenged; and also working to recruit well-trained nonpartisan polling officials to ensure access on Election Day is not wrongly denied.
The groups who have been fighting this battle for years are gearing up in new ways, with an intensive focus on collaboration. And there are new players in the field aimed at working with, or pressing, election officials before and on election day. Access Democracy, a new outfit created by legal veterans of the Obama and Clinton campaigns, was recently launched to work proactively in Wisconsin, Pennsylvania, and Florida. Former Missouri Secretary of State Jason Kander has created Let America Vote, which has already weighed in on the Georgia purging issue and others.
Whether people come out and vote in 2018 will be a critical event for our country’s future. Some analysts are predicting a significant drop in participation rates for 2018, especially among the “rising American electorate,” which will be more than 60 percent of the potential electorate in 2018. Ensuring that this does not happen—not just for election outcomes but for the health of our democracy itself—will require a major effort in many directions. Making sure the barriers that prevent people from exercising their right to vote are torn down is one critical piece. For those seeking the widest possible participation, and outcomes reflective of America’s people as a whole, the stakes are immensely high.