Tuesday, April 07, 2020

The GOP's Decade-Long Efforts to Kill Voting Rights

By Eric Segall

There is going to be an election in Wisconsin today despite the fact that millions of people likely won't go to the polls because of the reasonable concern that doing so might get them exposed to the potentially deadly Covid-19 virus. The Democratic Governor of the state wanted to postpone the election but he was overturned by the GOP-controlled legislature. Making matters worse, late yesterday the United States Supreme Court made absentee voting in Wisconsin much harder in an opinion, wait for it, joined by five Republicans with four Democrats dissenting. Essentially this Wisconsin debacle is the logical result of a decade-long national strategy by the Republican Party to stop as many people as possible from voting, especially if they happen to be people of color.

In the mid-term elections of 2010, Republicans swept statehouses across the country, turning many blue legislatures into red legislatures. Thus began an effort by the Republican Party to make it harder for Americans to vote (and to gerrymander in the most partisan way many state legislative maps, but that's a story for a different post). These efforts include heightened Voter ID requirements, rules that deter college students from voting, criminalizing effective methods of voter registration drives, closing voting places on Sundays, reducing the number of voting places, felon disenfranchisement, and purging voter rolls. Many of these efforts have been sanctioned by five Republicans on the United States Supreme Court (both before and after Justice Anthony Kennedy's retirement).

Many of the voter suppression efforts listed above were adopted by states for the specific purpose of deterring people of color from voting because generally racial minorities vote for Democrats. These efforts have been made much easier by the notorious Roberts Court 5-4 decision in Shelby County v. Holder, which struck down the key part of the Voting Rights Act that required states with long histories of enacting racially discriminatory voting rules from adopting such rules without the consent of either a three-judge court or the United States Department of Justice. To reach its result, the Roberts Court had to make up out of whole cloth an anti-textual, anti-historical principle of equal state sovereignty that the Court had explicitly rejected in the 1960's.

In the days following that ruling Texas, North Carolina and other states and jurisdictions passed voter suppression rules that they could not have enacted prior to Shelby County. According to Meghan Tinsley:
The reaction to Shelby County v. Holder was immediate: the state of Texas announced that its voter ID requirement, which had been blocked as discriminatory, would go into effect before the next election. North Carolina, likewise, introduced a range of new measures, including a voter ID requirement, a shortened early voting period, a requirement that voters only cast their ballot in their assigned precinct, and the elimination of same-day registration and voting – eliminating measures that had increased voter turnout among African-Americans. The state of Alabama likewise introduced a voter ID requirement – and then shuttered offices in predominantly black counties where voters could obtain the required ID cards. By Election Day 2016, there were 868 fewer poll places available to voters than there had been three years earlier.
Although Shelby County gathered the most headlines, the GOP-controlled Supreme Court has issued numerous other decisions effectively telling the Republican Party that its efforts to stop people from voting will meet with approval when they get to the nation's highest Court. In 2018, the Court, in the words of Adam Liptak, the Supreme Court reporter for the New York Times, "upheld Ohio’s aggressive efforts to purge its voting rolls, siding with Republicans in the latest partisan battle over how far states can go in imposing restrictions on voting." 

Also in 2018, in a case involving Texas's efforts to discriminate against minority voters through racially based redistricting, the Court, in the words of election law expert Rick Hasen, "eschewed the judicial minimalism it has used to avoid other contentious issues—such as partisan gerrymandering and the clash between anti-discrimination laws and religious liberties—to contort rules limiting its own jurisdiction so that it could give states like Texas freer rein for repression of minority voting rights."  This case was extremely important to the GOP crusade to stop people from voting because, again in the words of Hasen, the 5-4 holding made it "well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3 [of the Voting Rights]."  That provision, now gutted by the GOP Justices, allowed the federal government to put states that used to be covered by the Voting Rights Act back under its coverage of the law if they engaged in intentional racial discrimination in voting, which the lower court had found to be the situation in the Texas case. That finding was reversed by the Supreme Court.

And on it goes. Across the country GOP-controlled legislatures, with the full blessing of the the Republican-controlled Supreme Court, are doing everything they can to put obstacles in the way of people voting. This tsunami of voter suppression came to a head yesterday when the GOP-controlled Wisconsin legislature decided to hold an election during a pandemic when people in their own state are being told to stay indoors. To make matters worse, also yesterday, the United States Supreme Court limited the time absentee ballots could be counted, further reducing the number of people whose votes will matter. In Wisconsin, voting is now a matter of life or health, exactly as the Republican Party wants it--a severe threat to our democracy as we know it.