How voter suppression is destroying our democracy

Approaching the homestretch of the 2018 mid-term elections, the forecasting website FiveThirtyEight predicted that Democrats would have to win the popular vote by 5.6 points to regain control of Congress -- a substantial vote spread, particularly so because incumbents begin with an advantage. How did we get to a point where a majority of Congress is elected by a minority, and where in two of our last five presidential elections, the winning candidate did not garner the most votes?

This is one puzzle addressed by Carol Anderson, Charles Howard Candler professor and chair of African American Studies at Emory University, in her new and hard-hitting book, "One Person, No Vote: How Voter Suppression Is Destroying Our Democracy."

Not surprisingly, much of the story of voter suppression can be explained by racial discrimination. Article I, sec. 2, cl. 3 of the Constitution provided: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." This constitutional provision guaranteed that each African-American, who could not vote, would nevertheless count as 3/5ths of a person towards the allocation of electoral votes to the slaveholding states. Nothing in the Constitution, before it was amended, guaranteed universal suffrage for minorities, the poor, or women, and voting procedures were left up to the states.

In 1870, the 15th Amendment provided that the right to vote could not be denied based upon "race, color, or previous condition of servitude," guaranteeing African-American men the right to vote. But Jim Crow laws implementing poll taxes, literacy tests, and record-keeping requirements, accompanied by violence, resulted in a vertiginous decline in African-American suffrage.

In his "Give Us the Ballot" speech of 1957, the Rev. Martin Luther King, Jr. declared, "The denial of this sacred right is a tragic betrayal of the highest mandates of our democratic tradition." It was not until the Voting Rights Act of 1965, 100 years after the Civil War, that the federal government added meaningful enforcement efforts to prohibit voter discrimination based on race, and frontally attacked Jim Crow voting laws.

However, as Anderson explains, the role of the Supreme Court in eliminating barriers to voting, and making voting more fair, has been anything but simple. Thus, from 1927 to 1944, it took four U.S. Supreme Court cases, and the support of the NAACP, to bring the collapse of white-only primaries in Texas. One of those cases, Grovey v. Townsend (1935), actually upheld the right of the Democratic Party Convention of Texas to adopt a rule prohibiting blacks from voting in primaries, on the grounds that this was the act of a private organization rather than the state -- provoking Thurgood Marshall to remark that the judges "blinded themselves as judges to what they knew as men."

A key event, which did not directly expand the suffrage, but enhanced the effectiveness of a vote, was the Supreme Court's decision in Baker v. Carr (1962), establishing the "one person, one vote" standard for legislative districting and apportionment. Perhaps Baker v. Carr carried within its fractured opinions the seeds of its own erosion, for Justices Felix Frankfurter and John Marshall Harlan II dissented, arguing that the majority violated principles of judicial restraint and separation of powers by interfering with the political process. The "one person, one vote" principle has been repeatedly undermined by the practice of gerrymandering, redrawing districts so as to cause political opponents to waste their votes. True, one can vote, and one's vote can be counted, but where gerrymandering has been effective, the vote will be wasted. Both political parties have taken advantage of gerrymandering, though presently the GOP is the chief beneficiary of the practice. And here, the majority of Supreme Court judges have pretty much thrown up their hands. In Vieth v. Jubelirer (2004), the court majority found that Pennsylvania political gerrymandering was beyond the scope of any judicial scrutiny: it was a political issue. While Justice Anthony Kennedy held out the promise that he might change his view if a standard could be developed for invalidating improper gerrymandering, this did not happen in this year's gerrymandering case, Gill v. Whitford, remanded to develop a record for plaintiff's standing.

The argument that partisan gerrymandering is not justiciable appears to be based on the assumption that, if citizens do not like gerrymandering, then they can change it through the political process. The courts need not get involved in the sticky wicket of partisan politics. The argument has a certain circularity about it, since the whole point of gerrymandering is to create a representative system that is difficult to change through the vote, and if really effective, impermeable to change.

Thus far, evidence that gerrymandering is tainted by intent to gain an advantage, that gerrymandering is a pattern repeated year after year, that gerrymandering has resulted in convoluted districting maps, that gerrymandering has resulted in wholesale wasted votes, and that gerrymandering has resulted in asymmetry (e.g., if one party needs 56 percent of the votes to elect 51 percent of the representatives, fairness does not apparently dictate that the other party should need 56 percent of the votes to elect 51 percent of the representatives), has not sufficed to mount an effective attack on gerrymandering. The map makers can create gerrymandered districts with exquisite perfection, and the Supreme Court seemingly is unable to undo the unfairness created by human intervention and expert ingenuity. Yet it remains difficult to answer the question: how does our political system benefit by the practice of gerrymandering?

Much of the debate about whether gerrymandering is acceptable has centered on whether it is based on partisan politics or racial bias, with the accompanying arguments that partisan gerrymandering is not justiciable, whereas racial gerrymandering violates the 15th Amendment injunction against denying the vote based on race, the principle of equal protection, and whatever remains of the VRA. As Anderson explains, racial and partisan gerrymandering are now inextricably intertwined. The parties increasingly have different membership, with the GOP representing a constituency that is older, more white, and more rural than the Democratic party, which is younger, more ethnically and racially diverse, and more urban. The GOP finds itself fighting a rearguard against a demographic shift, targeting the voting power of the young, poor, and minorities.

The VRA was largely gutted in 2013, when the Supreme Court invalidated Section 4(b), providing for a coverage formula to determine which voting districts were subject to preclearance based on a history of prior discrimination. This ruling left on paper Section 5 of the VRA, providing for preclearance by a federal court or the Justice Department before voting procedures could be changed in certain states. Without a coverage formula, however, and with the current Department of Justice, the VRA has been mortally wounded.

Anderson masterly employs the pungent language of a political pamphleteer, particularly when she focuses on claims of purported voter fraud, condemning the "witch's brew of feigned innocence" behind voter suppression, "lethal maneuvers," "baying at the moon" about voter impersonation fraud, the "bogeyman of voter fraud," "hocus-pocus," the "monstrous little program named Exact Match," the "zealotry to all of [Kris] Kobach's work," a "Captain Queeg-hunt for culprits," the "juiced-up pounding on" minorities, and "chicanery." But then, Tom Payne can also be described as a pamphleteer.

However, it would be a mistake to read Anderson's short book as no more than a passionate polemic, first, because it is evidence-based, with a scholarly apparatus of 90 pages of footnotes, and second, because the passion is merited for those who care about the health of our democracy.

What is eye-opening is the description of the laundry-list of tools available to accomplish a political party's goal to limit voting, long after the days of Jim Crow: shortening the time to cast an early vote, shortening voting hours, closing polling places (and creating longer lines), moving early voting sites to significantly increase the distance to travel to vote early, failing in minority neighborhoods to invest in updated voting technology and other resources, requiring exact name matches, limiting means of voter identification (e.g., yes for drivers' licenses and hunting licenses, no for public housing IDs), targeting urban areas to purge voter rolls when voters do not vote regularly, felony disenfranchisement (with the war on drugs creating many felons, and Florida being the national champion of felony disenfranchisement), Interstate Crosscheck that aligns databases among states to flag apparent redundancies (a problem given that minorities are represented by a narrower range of names, resulting in more redundancy and false positive matches), limiting the effectiveness of the census to reflect changing demographics, the use of criminal investigation into voter fraud to intimidate civil rights attorneys and voters, and claims advertising widespread voter fraud, despite the dearth of evidence. Such tactics have a disproportionate impact disenfranchising young persons, poor persons, and minorities. However, they are carried out under the purportedly neutral banner of efficiency, economy, and protecting the integrity of the voting system -- a thin veneer to cover efforts to discriminate.

Russian meddling, which includes the sleazy use of Facebook to spread disinformation, and stir up racial division, also deserves dishonorable mention.

Anderson does provide some examples of constructive efforts to encourage voter participation. A chapter is devoted to the massive grassroots effort in Alabama to defeat the run of the egregious Judge Roy Moore for senator. "His Bible-thumping diatribes," writes Anderson, "embodied the sense of righteous, God-ordained racism that had already doomed the state to the bottom tier." However, after massive get-out-the vote campaigns, voter registration efforts, and door-to-door canvassing, Alabama voters resisted the call to turn backwards. Yet the results of that election may not be readily reproducible. News appeared late in the campaign that Moore had a predatory history with teenage girls. His example is an outlier. Even so, he lost by only 20,000 votes.

Anderson also offers examples of constructive efforts to get people to vote, and make one's vote count. Under Gov. Arnold Schwarzenegger, California adopted the process for a nonpartisan commission to draw district lines -- a process to address the unfairness of gerrymandering. In 2015, Oregon adopted Automatic Voter Registration, enabling citizens who "apply for or renew their driver's license" at the DMV to be automatically registered to vote unless they opt out. California adopted AVR, as well as preregistration of 16 and 17 year olds who are then automatically registered when they turn 18. Other reforms may also encourage more citizens to vote, such as allowing early voting, same-day registration, mail-in ballots, and elimination of the need in some states to notarize absentee ballots.

Systemic issues remain, notably, gerrymandering, biases built in to the electoral system favoring rural over urban America, and felony disenfranchisement.

Just because there is a problem does not mean there is a solution. As Anderson concludes, "[W]e have created a nation where democracy is simultaneously atrophying and growing -- depending solely on where one lives." Fundamentally, she believes that voting must be treated as a right, not as a privilege to be obtained only by overcoming an obstacle course. When representatives choose their voters, and thus are able to create a "perpetual-motion entrenchment machine", they may find themselves currying the favor of wealthy donors, rather than serving the interests, needs, and desires of the majority. In the end, this is not a healthy situation for a democracy.