Lost in the endless fascination with Donald Trump’s presidential run are the serious flaws in the processes that determine how Americans exercise their voting rights. Much has been made of the fact that two of Trump’s children will be unable to vote for him in the New York Republican primaries, but the reality is that around the nation many millions of people are unable to vote in primaries, or in the general election, because of overt and covert actions by the states and officials charged with overseeing the voting process. In a further reversal for a country lauded as a democratic example to the world, voters in twenty-two states face even tougher voting procedures in 2016 than in 2012.
Election rules have long been prone to politicisation, but over the past decade this has become extreme, especially in states with Republican governors and legislatures. More states have passed laws pushing voters off electoral rolls than at any point since the Jim Crow era. More than fifty years after president Lyndon Johnson signed the Voting Rights Act into law, discrimination and flaws in the voting process have been shown to be deep and widespread.
The United States is one of only a handful of democracies whose constitution does not specifically deal with voting rights, and in practice this has meant there are no national rules for national elections. Enrolment, the provision and staffing of polling places, the design of the ballots, and the way votes are recorded and counted are all left to the states. Only some states allow independents to vote in Democrat and Republican primaries; some allow those who have been incarcerated to vote, others don’t.
Confusing and varying standards control which forms of identification are acceptable for registration and who can vote, and many states have made these requirements increasingly stringent. Voting always takes place on a work day, and a shortage of equipment and staff means that queues are often long. Early voting has become more widespread but there are often strict limitations on absentee and email voting. In some states people must come out to vote multiple times: committed New York voters, for instance, have presidential primaries on 19 April, federal primaries on 28 June, and state and local primaries on 13 September, all ahead of election day on 3 November. Small wonder that New York voter turnout is consistently among the lowest in the nation.
After the US civil war and the abolition of slavery, the 15th amendment to the constitution, which was ratified in 1870, prohibited states from denying (male) citizens the right to vote based on “race, colour or previous conditions of servitude.” Nevertheless, especially in the south, African Americans were often forced to take literacy tests, recite the constitution, or explain complex provisions of law. Poll taxes enacted in southern states between 1889 and 1910 also had the effect of disenfranchising many African Americans, along with poor whites, because payment of the tax was a prerequisite for voting.
Despite lobbying from civil rights leaders, the 1964 Civil Rights Act didn’t prohibit most forms of voting discrimination. But after the 1964 elections, in which Democrats gained overwhelming majorities in the House and the Senate, President Johnson privately instructed his attorney-general to deal with the problem by drafting “the goddamndest, toughest voting rights act that you can devise.” A week after the March 1965 civil rights march on Selma, Johnson told a joint session of Congress that “the constitution says that no person shall be kept from voting because of his race or colour. We have all sworn an oath before God to defend that constitution.” The bill was signed into law in August 1965 and has since been amended several times to strengthen its provisions.
Around the same time, in 1964, the 24th amendment to the constitution disallowed the poll tax as a prerequisite for voting in federal elections. In 1966 this prohibition was extended to all elections by the Supreme Court, which ruled that such a tax violated the equal protection clause of the 14th amendment to the constitution.
These important legal changes didn’t eliminate the discrimination, but the most egregious instances were addressed by a provision of the Voting Rights Act that enabled the federal justice department to intervene when states were not acting in accordance with the law. These states included Alabama, Arizona, Louisiana, Mississippi, South Carolina and Texas, as well as some counties in California, Florida, New York and North Carolina.
More recently, problems with voting technologies and state political interference were highlighted by the Florida “hanging chads” debacle in 2000, which showed that even minor manipulations of election procedures can affect outcomes in close races. In its wake, Congress created the Election Assistance Commission to designvoluntary guidelines for voting systems, maintain a clearinghouse of information regarding election administration procedures, including testing and certification of election equipment, and make voting easier.
The Commission has been accused of being dominated by Republican interests, and it has certainly struggled to do its assigned work. In 2015 a report by the non-partisan Brennan Center for Justice found that the US electoral system is headed for a crisis. The voting technology deployed by most states around the country is now so antiquated and unreliable that it is in danger of breaking down at any time. (Some states have even had to resort to eBay to buy spare parts for machines that are no longer manufactured.) Many states indicated they were unable to afford the needed new equipment. The jurisdictions with equipment reaching the end of its natural lifespan cover about forty million registered voters and account for 387 of the 538 electoral college votes that decide the presidency.
The reliance on mechanised forms of voting has other consequences, too. Many voting machines don’t allow voters to verify their vote before it is recorded; many votes are cast on touchscreens, most of which lack a means of verification; some machines have been shown not to record votes properly; and even new electronic machines can be hacked. Reports from Ohio in 2004 (where exit polls went to Kerry but the number of Bush votes in some counties exceeded the number of registered voters) found that problematic voting machines were purchased from a company with strong Republican links – the implication being that they were rigged. Demonstrations have shown that this is certainly easy enough to do.
Alongside these problems have been significant changes in electoral boundaries. Gerrymandering is not new, but in recent years Republican governors have used changes in electoral boundaries to help ensure Republican control of the House of Representatives. Over half the nation’s congressional districts have been redrawn to favour Republicans and only 10 per cent to favour Democrats. In Florida, Virginia and North Carolina, the efforts have been so extreme that the courts have intervened to ensure fairness.
All this is shocking enough, but there is worse. There is clear evidence in some states of concerted efforts to stop certain groups from voting. These were kickstarted after Republicans won a substantial number of state governorships and legislatures in 2010. There can be little doubt that the resulting changes to electoral processes are aimed at those population groups – African Americans, Hispanics, the poor and students – that are most likely to vote for Democrat candidates. The Brennan Center has found that the higher the 2008 increase in minority turnout, the more likely a state was to subsequently push laws cutting back on voter rights. Of the twelve states with the largest Hispanic populations in the 2010 census, nine have put new voting restrictions in place.
Putting such initiatives in place has been made much easier as a consequence of a 2013 Supreme Court decision. In the case Shelby County, Alabama v Holder, the Supreme Court, in a 5–4 vote, held that a key part of the Voting Rights Act – the requirement that those states with histories of voting-related racial discrimination “pre-clear” any voting law changes with the federal Department of Justice – was invalid. Specifically, the majority opinion found that the remedy to reduce racial discrimination “must speak to current conditions,” implying that the discriminations that existed at the time the law was enacted do not exist today. This means that the Department of Justice now must wait for problematic laws to be enacted before it can intervene, and states like Texas and Arizona have been quick to act.
Some of these efforts have been done in the name of dealing with the problem of voter fraud. But in fact voter fraud is very rare and voter impersonation is nearly non-existent. Ongoing studies by the Brennan Center reveal most problems that have been identified as fraud are in fact unintentional mistakes by voters or election administrators. A common example is people who have voted early but, concerned about whether this vote will be counted, show up at the polling booth and are permitted to vote again.
In reality, ballot security initiatives suppress voting by creating unnecessary hurdles for eligible voters. Those that require identification such as passports or driving licences can be de facto poll taxes for those who are not well-off.
A recent study measuring the impact on voter turnout of strict voter identification laws in states like Texas, Georgia, Virginia and Wisconsin found a clear and significant dampening effect on minority turnout. In primary elections, these laws depress Latino turnout by 9.3 points, African-American turnout by 8.6 points, and Asian-American turnout by 12.5 points. Similar effects are seen in general elections.
Given that minorities tend to vote overwhelmingly for Democrats, it is not surprising that a key finding of this research was that Democrat turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place, compared to just 3.6 percentage points for Republicans. For those who identify as strongly liberal, the estimated drop in turnout in strict photo identification states is 7.9 percentage points. By contrast, strong conservatives actually vote at a slightly higher rate (up 4.8 points) in these states.
The primaries and caucuses in 2016 are the first voting procedures held under these new restrictive conditions and they serve to indicate how fraught the general elections will be. The list of problems to date includes:
- Maricopa County in Arizona, with a high population of Hispanics, had only one voting site for every 21,000 voters. Most counties averaged 2500 or fewer eligible voters per polling site.
- In multiple precincts in Georgia, Democrat voters were issued Republican ballots.
- More than half a million registered Texans didn’t have the correct identification to be able to vote in the Super Tuesday primary. Texas will accept a concealed carry permit for identification purposes but not a state-issued student card.
- In Wisconsin a second world war veteran was unable to vote because his veterans’ card was not accepted as sufficient identification.
- Native Americans on the Navajo Reservation in Arizona faced a drive of several hours to register and to vote, yet the state has just enacted legislation that makes it a felony to collect other people’s ballots and bring them to polls.
- Wisconsin shut down the “Souls to the Polls” drive organised by African-American churches by eliminating weekend early voting.
- More than three million people (including Donald Trump’s children), or 27 per cent of registered voters, couldn’t participate in the New York primary because they are not specifically registered as a Democrat or a Republican – and the deadline to make the necessary changes was October 2015.
Not surprisingly, lawsuits and actions abound. In 2012 and again in 2014 the National Association for the Advancement of Colored People appealed to the UN Human Rights Commission over the erosion of voting rights. The American Civil Liberties Union has filed a lawsuit against the Ohio secretary of state on the grounds that over the past five years around two million people have been automatically removed from the voter rolls because they have not voted in recent federal elections.
The Democratic Party and the presidential campaigns of Hillary Clinton and Bernie Sanders are together suing the state of Arizona over voter access to the polls after thousands of residents waiting as long as five hours to vote in the presidential primary. Other challenges to new voting requirements are under way in Ohio and North Carolina.
Minority voters are growing in numbers and are increasingly likely to vote, despite all the hurdles. In 2016 nearly one-in-three eligible voters (31 per cent) will be Hispanic, African-American, Asian or from another racial or ethnic minority, up from 29 per cent in 2012. By 2050 it is predicted that the minority groups that helped elect President Obama in 2012 will be a majority of the American population, and the record number of Hispanics who voted in the 2012 presidential election will double within the next generation. There are more nasty battles ahead, but ultimately the demographics mean that these Republican tactics will falter and fail. •
