The Voting Rights Act of 1965 moved to combat decades of racially discriminatory voting laws. It included, among many other things, a preclearance provision requiring states with a history of unfair voting rules to clear any changes to their voting laws with the federal government before implementing them.
When Shelby County v. Holder came before the Supreme Court, the constitutionality of the preclearance clause was challenged. In June of 2013, the Supreme Court struck down the formula that the federal government used to determine whether or not a state required preclearance, a move which effectively ended preclearance.
Suppression of minority voting rights is a practice that is as old as the rights of minority groups to vote. In the wake of the Shelby decision, the assault on minority voting rights has picked up through old practices like gerrymandering and old practices made new like voter id laws and the closure of polling places.
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet. – Ruth Bader Ginsburg, Dissenting opinion
The Attack of the Gerrymander
Gerrymandering is the practice of drawing legislative districts with the intention of diluting a group’s votes and thus reduce their representation in government. The practice has been around almost as long as the United States has been drawing congressional districts. Provisions in the Voting Rights Act that prohibit racial gerrymandering survive, but the practice is still widely implemented.
There are two main methods to suppress the voice of minorities in government through gerrymandering. Packing is the practice of drawing a congressional district to contain a high concentration of a certain group so that they wind up with the smallest number of representatives possible.
Cracking is the practice of drawing a congressional district in such a way that a small portion of the disenfranchised group is included with a larger amount of another group that will predictably outvote the minority group. This practice can be seen in many metropolitan areas where congressional districts combine thin slices of a city with large chunks of the surrounding suburbs.
A popular political cartoon illustrates the gerrymander as a beast with claws and wings. – By Elkanah Tisdale (1771-1835) (often falsely attributed to Gilbert Stuart) – Originally published in the Boston Centinel, 1812, Public Domain, https://commons.wikimedia.org/w/index.php?curid=6030613
There are some widely used systems that score the fairness of voting districts, most of them rely on measures of a district’s compactness, with some including demographic factors to show how well the population’s interests should align.
Gerrymandering has been a problem in American politics from the word go. Neither party is historically innocent, but never before has it been as effectively implemented as the GOP REDSTATE plan. The plan was to take over state legislatures, races that often don’t attract much attention or money, by pouring large amounts of money into them from the national level. In 2000, a year that was both an election year and a census year, the GOP plan came worked. The ensuing nationwide gerrymandering resulted in Republicans being able to maintain a 33 seat majority in the House of Representatives while only getting 49% of the vote in those races.
There has been some progress recently as lawsuits challenging racially discriminatory districts make their way to the Supreme Court. The court has at times been hesitant to make rulings in the absence of an easily discernible and applicable measure of what constitutes an illegal gerrymander.
There are a few methods being mulled over. An interesting case actually may cover partisan gerrymandering, and it uses the efficiency gap, or an easy to measure test based on how many of a group’s votes wind up wasted.
Protecting the Integrity of the Vote, as they say
Three million illegal immigrants voted in California in the 2016 presidential race, if you believe Breitbart and the President Elect. A fundamental flaw with the media caused several outlets to run the tweet as a headline and the fact checking in the article, which means the damage was done, for the most part.
That is an issue for another day. It isn’t true, nor are the stories of thousands of dead people voting. In fact, a comprehensive study showed that 31 credible cases of voter impersonation occurred out of over one billion votes. Any time a politician pushes a law to solve an essentially inconsequential problem, it is a safe bet that there is something nefarious going on.
Immediately after the Supreme Court ruling in Shelby v. Holder eliminated the preclearance requirement, voter id laws started springing up in states that were previously covered by section 5 of the Voting Rights Act. More than thirty states have enacted voter id laws. Unsurprisingly, many of the states that have done so are those with demographic shifts threatening to tilt the balance away from the establishment power class.
Voter id laws are an easily discernible case of disparate impact, as the people most likely to lack government issued id are minorities and poor people. GOP pundits smile and talk about common sense laws designed to protect the integrity of the vote while they know whole purpose is subversion of democracy.
The best smoking gun evidence comes from the North Carolina GOP. When the North Carolina state legislature went about building their voter id laws they requested data on voter behavior based on race. The law they subsequently passed coincidentally eliminated the alternative forms of id used to vote that black voters were most likely to have. The law was struck down for racially discriminatory intent. The court decision will likely be appealed. Coincidentally, North Carolina is the state where the aforementioned partisan gerrymandering case arose.
Not to be outdone, Texas is currently fighting in the courts to protect the nation’s strictest photo id law. The law, currently being litigated, was effectively suspended by the courts for the 2016 presidential election, and those without photo id were allowed to sign an affidavit stating that they are who they claim to be. Texas Attorney General, Ken Paxton went on Fox News and announced that anyone who improperly uses those forms could be prosecuted for perjury. Around the same time, Stan Stanart, clerk of Harris County, went on to say that his office would investigate affidavits that they received.
Finally, When All Else Fails, Limit Access
In 2016 there were 868 fewer polling places than in 2012. Approximately half of the counties previously required by the Voting Rights Act to preclear changes to voting laws have cut the number of polling places. Rural poor tend to lack the mobility of middle and upper class people. Closing the nearest polling station essentially puts voting out of reach for many. Even those who do have a vehicle or means to travel greater distance to a polling place will often lack the ability to afford missing additional time from work to vote.
Early voting has been reduced in many places. In 2012, fully 70% of black voters voted early. Allowing for a window of time to vote makes it more likely that a poor person will be able to find the time to vote without suffering the economic hit of missing a day of work when they can’t afford it. Only 33 states allow early voting, but fully 32% of voters voted early in 2012.
Many states have moved to purge their voter rolls. Kris Kobach, Kansas Secretary of State, championed a program called Crosscheck. The program allegedly uncovered hundreds of thousands of duplicate voters. Kobach then offered to have Kansas foot the bill for any other state that wanted their voter rolls put through the program.
Thirteen states took him up on that offer. Of all the supposed cases of duplicate voters in all the states that utilized Crosscheck, not one case of voter fraud has been prosecuted. Voter fraud is a felony. The program did, however, achieve the objective of 1.1 million minorities finding themselves unable to vote in the 2016 election, according to Greg Pallast’s column at Democracy Now.
The All Out Assault on Voting Rights
Through virtually every avenue possible, there is an all out assault on voting rights in America. Poll taxes are unconstitutional, so the method is to make voting too expensive by limiting access. For a poor voter taking an entire day to stand in long lines at a polling place thirty miles from their home is not an affordable prospect.
Many lack the mobility to even travel that far. Still more lack the ability to take a Tuesday off work, foregoing a day of pay when even many people firmly in the lower rungs of the middle class would struggle to cover their bills by losing that pay. In a country where the right to vote is at the very foundation of our value system, we should be working to extend accessibility to the ballot instead of limiting it.
Laws requiring identification at the polls are thinly veiled attempts to put the vote out of reach for minorities and the poor. There are proposals out to counter voter id laws by issuing free federal id to everyone. Other proposals abound, but one thing is certain. These voter id laws are as clear a case of disparate impact as there has ever been, and it is no coincidence.
Finally, if a poor voter manages to overcome all the obstacles by saving enough money to miss a day of work, arrange for travel to the nearest polling place, endure the long lines, present a photo id, and get the stroke of luck that their common (read: likely minority) name didn’t get them kicked off the voter rolls by Crosscheck they will finally get to cast a vote quite possibly marginalized by the fact that they live in a heavily gerrymandered district.
Voter fraud is a non-issue at the rates it currently exists. Voter impersonation, the kind of fraud detected by voter id, is the most inefficient way to rig an election. There have been an extremely low amount of voter fraud prosecutions in the United States over the last decade. Any time large numbers of suspect names from the voter rolls have hit the headlines, the investigation that follows usually shows that the vast majority of those names are due to simple clerical errors or other legal and explainable circumstances.
Any time a politician goes on a crusade to fix an issue with extremely low impact, you can bet the farm that they’re doing something unethical.
Disenfranchising voters in this era of our country’s history is anathema to the values we supposedly hold dear. One can easily imagine the reaction of the people who fought for their vote, spilled their own blood on the streets and still marched forward. It’s time to fight again. The laws might not be called Jim Crow, but that’s essentially what they are.
It is expected that the political parties will fight to tip the scales in their own favor competitively, but the fight should not require theft of voting rights from minorities and the impoverished. Democracy is being subverted right out in the open. If minority and poor voters are a problem for a politician, instead of stealing their right to vote, the politician might do well to address the issues facing those groups.
Make no mistake, the fight for equal voting rights is as important now as it has ever been.