The ensuing court fights did not correspond neatly to the election cycles. Many started in one and continued into the next. In some cases, new laws were put on hold while lawsuits unfolded. In other instances they were not. When the spate of new anti-voter bills was first introduced in 2011, the Brennan Center estimated the new laws could make it harder for five million people to vote nationally. That became a front page New York Times story. But after many legal challenges were filed, the Center reported anti-voter laws in fourteen states “have been blocked, blunted, repealed or postponed” just before the 2012 election.112
That red-to-blue swing of the pendulum faced an abrupt reversal in 2013 that endures today. In a lawsuit and ruling that voting rights activists long feared, a right-wing Supreme Court majority ruled that preclearance—VRA’s Section 5—was unconstitutional. Chief Justice John Roberts wrote race relations had evolved so the DOJ’s oversight was obsolete.113 In a flash, states and counties with histories of discrimination in voting were deregulated. States under Section 5 jurisdiction in 2013 were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. Preclearance also covered counties and cities in California, Florida, New York, North Carolina, South Dakota, and Michigan.114
The lawsuit prompting the ruling came from Shelby County, Alabama. It was designed by right-wing lawyers specifically to challenge the VRA’s toughest provision. These advocates also drafted the federal suit challenging affirmative action in state university admissions that made it to the Supreme Court—but lost. These are white supremacists that say civil rights groups are unduly negative and backward by continuing to focus on racial identity, racial differences, and discrimination.115 Publicly, they feign the nation has moved beyond racial divides. While this was all before Trump’s overtly racist 2016 campaign, they were aware what their GOP allies would do—restore race-based voter suppression measures in states where white governing classes are threatened by diversity.116
Within hours of the Supreme Court’s ruling, states demonstrated the absurdity of Justice John Roberts’s opinion. Texas, North Carolina, and Alabama immediately acted to pass or announce they would begin enforcing anti-voter laws that had been stuck in court.117 Overnight, the voting rights pendulum swung hard to the right. Voter suppression had been legalized anew for the 2014 midterms, 2016 presidential election, and local races—and was embraced in red states.
What’s often overlooked in analyses of Shelby County v. Holder is how many voting law changes came before the DOJ for their preapproval—and involved local elections, such as those for city councils and university boards. The DOJ website said for the decade before Shelby it had “received between 4,500 and 5,500 Section 5 submissions, and had reviewed between 14,000 and 20,000 changes in voting laws and procedures annually.118 A June 2016 report by the NAACP Legal Defense Fund noted, “More than 85 percent of pre-clearance work previously done under Section 5 was at the local level.”119
The NAACP report highlighted the most common discriminatory tactics that ensued after the VRA was gutted, all of which dilute turnout or tilt the outcome in close races. These “include reducing the number of polling places; changing or eliminating early voting days and/or hours; replacing district voting with at-large elections [undercutting strong local candidates]; implementing onerous registration requirements like proof of citizenship; and removing qualified voters from registration lists.” What the NAACP didn’t quantify was what the GAO and Demos documented, and what Texas GOP Chair Royal Masset had said: that tactics like these shave a few points off of voter turnout, especially among Democrats.
By 2017, many voting rights groups have been saying that the pendulum was starting to swing back their way, as growing numbers of state and federal judges had been offended by the Republican’s antidemocratic playbook. They note that courts are ordering states to redraw political districts marred by racially motivated gerrymandering, to stop enforcing new voter ID laws, and to reverse other anti-voter measures like cutting early voting. They cite progress that Democrats and their allies have made, such as states instituting more registration options and Oregon’s model of universal automatic registration.120
That view is accurate but incomplete. What it omits is that in the states that determine federal power—House races and presidential swing states—and states where the political complexion is purple or trending blue, that advocates of expanding voting rights are on the defensive.121 Also, lower-court victories have been hamstrung by GOP-filed appeals—or by legislators dragging their feet to fix laws, or unfairly doing so, despite losing in court.122 Meanwhile, voting rights groups face new barriers in these states, as Republicans seeking more restrictive voting keep launching new offensives. The result is an ongoing spectrum of rules and requirements that makes voting anything but easy. The NAACP’s post-Shelby report described the pinpoint targeting of attacks that led up to and fed into 2016. Each attack seeks to peel away blue voters: A few percent here, a few percent there.
LAYERED AND NUANCED ATTACKS
TAKE THE PURPLE STATE OF VIRGINIA. Consider what’s unfolded since Shelby. In 2013, after the Supreme Court threw out the DOJ’s veto power over local changes, Virginia—which had been under the VRA—did what a lot of red states did. It wasn’t the most egregious. Its GOP governor and legislature quickly passed a tougher voter ID requirement. It was to take effect the following year in June 2014. Before Shelby, the DOJ would likely have blocked this law. Civil rights groups sued and noted 197,000 Virginians didn’t have a state driver’s license—an acceptable form of ID. Many were nonwhites and lower-income.123
Shrewdly, the ID law’s authors added a provision so Virginians could get a free state ID. That was what they cited in court. Virginians had to make an effort, they said. Democracy should not be taken for granted, they argued, and the new law provided such a path. Yet a year later, fewer than five thousand Virginians had gotten that free state ID in order to vote. That result was what Republicans expected. That’s how voter suppression works. The federal district judge who tossed Texas’s ID law also noted 608,000 residents lacked ID, whereas the state issued 279 substitute IDs—showing the same voter suppression template.124 Virginia’s voter ID law remained in effect for 2016’s election and was upheld in court that December.
Virginia’s voter ID fight wasn’t in a vacuum. It had other voter suppression battles. After the 2010 election, Republicans aggressively packed black voters into twelve legislative districts in the Richmond-Hampton Roads region along its southeastern border. That gerrymander was challenged in court as racially discriminatory, prompting a federal court to order the state legislature to redraw its maps in early 2016. New maps were created, but that legal fight has continued with the US Supreme Court telling a lower court to use different standards in assessing whether the gerrymander was partisan, which is legal, while racial sorting is not. Both Democrats and Republicans claimed victory, but contested lines remain in effect.125
There’s more. In 2013, Virginia’s political landscape shifted. That November, Democrat Terry McAuliffe was elected governor, starting a four-year term in 2014. Two years later, he signed an executive order restoring voting rights to two hundred thousand Virginians convicted of nonviolent felonies who served their sentences and completed probation or parole. Many were youths caught up in the war on drugs. The state was one of four in the country that banned ex-felons from voting for life. Virginia Republicans sued McAuliffe, arguing his clemency was an abuse of power because it did not look at individual cases. State courts put the rights restoration on hold. In July 2016, the Virginia Supreme Court killed it and ordered 11,662 ex-felons who had registered to vote to be removed from voter rolls. McAuliffe responded that he would act to individually restore their rights.126 In early 2017, McAuliffe reported that he had restored the voting rights of 140,000 people.127 Virginia’s Republicans have yet to respond, but may be waiting until McAuliffe’s term ends in January 2018.
These pendulum swings show how layer
ed and deliberate Republicans are with trying to nullify slivers of the Democrats’ base. It is maddening. State courts uphold a stricter voter ID law that adds complexities to the process for all of a state’s voters, but block a governor who restores voting rights to a disadvantaged class. Republicans in Virginia and elsewhere don’t care about ex-felons’ due process rights. They care about preserving political power. As Marty Connors, then chairman of the Alabama Republican Party, told the Washington Post in 2004 when asked about felon re-enfranchisement, “As frank as I can be, we’re opposed to [it] because felons don’t tend to vote Republican.”128
Needless to say, the states drawing the hardest lines against felon voting are states where restoring that right would threaten Republican rule. Nationally in 2016, six million ex-felons had lost their voting rights, according to the Brennan Center. A third were black—one-in-thirteen voting-age blacks across the United States, Brennan reported. Half a million are in Texas. A quarter million are in Georgia. But Florida is the worst. There, 1.6 million—one in ten voting-age adults—are disenfranchised for life (although civil rights groups are hoping to put a state constitutional amendment changing that before voters in 2018).129
Virginia is a typical state in the voting war of attrition. It’s purple and a presidential swing state. It’s in the GOP mainstream and has close ties to the national party in Washington. Its tug-of-war on voting rights are indicative of this past decade, where political and legal fights have unfurled in state-by-state silos—even as they use a similar playbook. Unless you live in these states, you are unlikely to hear about these power plays, ongoing court fights, their complexities and often-unresolved nature. Yet, these battles are all preambles to the stage upon which the 2016 election was set, including purple-trending states that saw aggressive anti-voter attacks—such as Georgia and North Carolina.
We’ll soon delve into what went on there—because it is part of a landscape that is setting the stage for 2018 and 2020. But first we need to step back to get a better foundation in order to understand what the GOP’s hit men are pursuing in the fine print of election law. They are burrowing into deeper parts of the process where federal and state laws can be ambiguous and have not been subject to enough lawsuits for clear national standards to emerge. So far, we have touched on big frames—redistricting, changing the rules to one side’s benefit, propaganda about fake threats to facilitate restrictive laws. Now we have to step back.
There’s another lens that can clarify where other serious anti-voter attacks are occurring. If we think about voting as a narrative with a beginning, middle, and end, we can pinpoint why what’s described as a technicality is anything but. Otherwise, it is easy to get lost in details of state-by-state fights, or get distracted by meaningless digressions from election officials or aggressive partisans.
One irrelevant detail that repeatedly surfaces is the claim that voter rolls are a gold mine for fraudulent behavior, when, in reality, they are not. Think about how many times you have heard a TV news reporter blare that voter rolls include dead people. “People that have died 10 years ago are still voting,” Trump said at an October 2016 rally in Green Bay, Wisconsin. Well, dead people do not notify election offices that they have died and ask to be removed. They also don’t vote—unless they voted early and passed away before Election Day, which is legal. It’s an empty concern.130
That illegal voter meme points to a corner of election law that has come under increasing GOP attack: voter registration rolls and how they are kept current. There are protocols about how county officials clean up their rolls, and how they face the same problem with people who die as with people who move—and they’re not notified of the change. These steps are in the legal nuts and bolts of the voter registration process. If we want to see how the GOP is playing dirty, and how the same people who have been behind the worst suppression gambits are resurfacing under Trump, we must examine what voter registration is and isn’t, as well as voter purges.
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THE STARTING LINE
TO BEGIN TO SEE HOW A straightforward process such as voter registration can be needlessly twisted, we first turn to Alabama. Its political culture repeatedly elected Jefferson Beauregard Sessions III to positions of power, first as state attorney general and US senator, before being picked by Trump as US Attorney General, where he now sits atop national voting rights enforcement. Sessions’ namesake are his father and grandfather, both named after Jefferson Davis, the Confederate’s president, and Pierre Gustave Toutant-Beauregard, the general who ordered the attack on Fort Sumter that started the Civil War. As a federal prosecutor in 1985, he tried but failed to convict three Alabama activists for voter fraud after they helped with absentee ballots. One was a former aide to Dr. Martin Luther King Jr.131 That sounds like long ago, but the past is never far behind the fine print of American elections.
Alabama didn’t just pass a stricter voter ID law within days of the Shelby decision with redistricting and announcements of intention to enforce it. As 2016’s cycle began, the state tried to close thirty-one state motor vehicles offices across Alabama’s “Black Belt” counties, where residents could get an approved ID. It backtracked by reopening those offices for one day each month, prompting civil rights groups to sue.132 Alabama’s GOP-led redistricting also has been in federal court for most of this decade, where civil rights groups repeatedly won rulings that its state Senate maps were unconstitutional racial gerrymanders. Instead of appealing for a second time to the US Supreme Court, its Republican-majority legislature adopted new maps in May 2017—on a party-line vote. That prompted black Democrats to cry foul and predict they would be back in court.133 That fight may leave Alabama’s maps in place for 2018, however.
But that’s not all. Alabama is among a handful of states where Republicans want to impose a secondary voter registration system to winnow who gets to vote in its state elections. This would not affect voting for Congress and president, but for local and state contests on the same day. This is another strategy for resegregating who gets to vote—atop gerrymandering—and is more than reminiscent of Jim Crow days. As Ari Berman has noted in The Nation, the impact of these anti-voter laws in the South is turning Democrats into a party of nonwhites and Republicans into a party of whites.134
These states seeking a separate, unequal, and secondary state registration process—Alabama, Arizona, Kansas, and Georgia135—updated the voter fraud meme in a way that anticipated Trump’s big lie that millions of illegal immigrants voted in 2016, keeping him from a popular victory. These states want people registering to vote to provide paper proof of American citizenship. That’s usually a birth certificate, passport, or naturalization papers, which not everyone has and takes time and money to get. As with voter fraud, there’s no federal agency that maintains an authoritative US citizenship database.136
A handful of powerful Republicans in these states unapologetically keep pushing for this secondary standard despite seeing variations of this ploy lose in federal court. They know their allies in high statewide office can keep throwing the first punch by implementing new voter requirements and then fighting via ensuing litigation. That’s because voter registration is done at the state level. The fact there is no authoritative federal database of all citizens creates an ambiguity they knowingly exploit. To understand why this is not just odious but could open a major new frontier for GOP-led voter suppression, we have to parse the starting line of voting in America, the registration process.
Unlike most western countries and Canada, voter registration is not automatic for all adult citizens. Most people know they have to register, and if the state doesn’t offer it online then federal registration forms are available at the post office. The exceptions are North Dakota, the only state that doesn’t require any voter registration, and Oregon, which in 2016 became the first state to automatically enroll everyone who was getting a driver’s license. (A half dozen other blue states have taken steps to follow Oregon’s example.)
At first glan
ce, registration seems simple. To be an eligible voter, you must be a citizen, a state resident, and at least eighteen years old. That’s cited in most state Constitutions. Additional requirements often include not being a convicted felon (most states), not judged mentally incompetent, and swearing to uphold the state and federal constitutions.137 The federal voter application form seeks this basic information, which is then copied by election office workers from paper forms into computerized voter databases. The data fields or categories are clear: one’s first, middle, and last name; street address, city, county, and state; political party if you’re joining one; and an identifying ID—usually a state driver’s license or the federal Social Security number.138 Registrants also sign their name, which provides a signature (and signature image) and crucially constitutes a legal oath under penalty of perjury—a major offense.
From this baseline, officials who run elections—usually at the county level—will ensure you get the right ballot with party primaries and correct local and regional races. They will add you to polling place lists (if you are not voting by mail). This is straightforward until snafus emerge with partisan overtones—such as removing infrequent voters from rolls, or moving local polling places without telling voters. But those come later. States also ask people that apply for a driver’s license if they want to register, under the National Voter Registration Act of 1993 (also called the motor voter law). The NVRA requires military recruiters and other state agencies to offer registration. But many states have not done so at their welfare offices—prompting lawsuits. (The NVRA also specifies how state officials are to conduct voter list purges, to protect voters but to remove people who move or die.)
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