Democratic Party policy holds that the right to vote is foundational to our democracy and every qualified voter should be able to cast a vote with minimal hindrance. A central tenet of Republican politics for decades, by contrast, has been to win elections by making it difficult for their opponents to vote — more specifically, by blocking minority access to the ballot. Through enactment of laws that disproportionately burden minority voters (e.g., laws requiring photo identification, restricting early voting, limiting registration opportunities, and purging voter rolls), Republicans have carved out of the electorate the parts that don’t support them. Coronavirus presents the GOP with the greatest disenfranchisement opportunity of modern times. Democrats must not let them succeed.
GOP leaders have made clear that the pandemic will not lessen their efforts to limit the franchise. From Trump down, they have opposed expanding voting by mail and extending early voting, measures that would mitigate the health risk of voting during the pandemic. And, Trump, himself, admitted the quiet part out loud — that allowing too many people to vote would mean Republicans would never win.
The Wisconsin debacle foreshadows this battle heading toward November. Last week, the Wisconsin Republican-controlled legislature insisted on proceeding with both the Democratic presidential primary and the election of a Supreme Court justice, three court of appeals judges, and hundreds of local officials, despite the pandemic. The Democratic governor ordered a postponement from April 7 until June, but Republicans persuaded the conservative majority of the Wisconsin Supreme Court to overturn his order.
Because demand overwhelmed the system for requesting absentee ballots, a federal district court judge ordered Wisconsin to accept any ballots received by April 13, regardless when they were mailed. The five conservative justices on the U.S. Supreme Court stayed that order, meaning only ballots postmarked by April 7 would count. That disenfranchised thousands of voters, who did not receive their absentee ballots in time. It also affirmed for anyone with doubts that, even during a pandemic, the Republican appointed justices will continue their vigorous support of the GOP’s assault on voting.
Wisconsin held its election with devastating racial impact. Because many poll workers (who skew elderly) were unwilling to risk their lives, Milwaukee — home of a large percentage of Wisconsin’s African American voters — was able to open only five polling places, down from its usual 180. Turnout suffered accordingly.
How did the Party of Lincoln come to depend so heavily on suppressing African American votes? The story is complex, but its outlines are stark. A good starting point is 1964. During the height of the battle to dismantle the south’s oppressive racial caste system, Barry Goldwater, the Republican nominee for president, opposed passage of the Civil Rights Act of 1964, signaling to southern supporters of segregation that they might find a home in the Republican Party. Though Goldwater lost in a landslide, he carried the deep south. The following year, President Lyndon Johnson signed the Voting Rights Act of 1965 (VRA), fully aware that doing so would alienate southern voters intent on maintaining white supremacy and drive them into the Republican Party.
Richard Nixon followed with his southern strategy, an overt appeal to southerners upset by school desegregation and other threats to white supremacy posed by the civil rights progress of the 1960’s. While Nixon did not turn his back entirely on civil rights progress, he slowed it considerably, pushing the GOP in a direction that further alienated black voters and made it dependent on winning large majorities of white voters. The challenge for the GOP became appealing both to voters repelled by the federal government’s efforts to promote civil rights progress as well as more moderate voters — who may have been offended by overt racism, but were willing to tolerate a steady stream of racist dog whistles.
For example, Ronald Reagan could choose to deliver his first speech as the Republican presidential nominee in Philadelphia, Mississippi, the town where three civil rights workers were slain in 1964 and speak of states rights, so long as he and his supporters vehemently denied any intended racial message. Similarly, Reagan’s administration, aided by the young John Roberts in the White House Counsel’s office, could oppose strengthening the Voting Rights Act in 1982, so long as Reagan signed the compromise legislation that emerged.
As increases in the number of eligible minority voters shrunk the electorate’s percentage of white voters, however, the GOP faced a dilemma. If minority voters turned out in substantial numbers, it could not win. It could either change its policies to appeal to minority voters or it could reduce the number of minorities who voted. It chose the latter.
The GOP launched a phony campaign to combat voter fraud. To stir up hysteria, Republicans in the George W. Bush administration pushed hard to prosecute voter fraud cases. Their efforts failed. A Department of Justice task force found a trivial number of cases after years of investigation. The White House engineered the firing of U.S. Attorneys who were insufficiently zealous in pursuing voter fraud cases, resulting in a congressional investigation that led to the resignation of Attorney General Alberto Gonzales and other top leadership of the Department of Justice. Most recently, Trump, with great fanfare, empaneled a commission to study voter fraud that quietly disbanded without finding any.
The phony voter fraud frenzy, however, has been used to convince states to adopt restrictive legislation, including photo ID laws. Such laws do virtually nothing to stop fraud, since they only deter people from showing up at a polling place and asserting a false identity. Anyone caught in that act can be prosecuted for a serious felony. People are unlikely to risk imprisonment to change a single vote and supporters of ID bills have struggled in vain to identify any significant number of instances where a photo ID would have deterred fraud. Photo ID requirements, however, do disproportionately deter voting by otherwise qualified minority voters, which has made them a favorite tactic of Republican lawmakers.
Perhaps the biggest check on Republican vote suppression efforts was the Voting Rights Act (VRA) of 1965. Among other things, it contained special provisions that required covered jurisdictions to submit any election change to the Attorney General or a three-judge court in D.C. for approval before it could go into effect. The submitting jurisdiction had to prove that the change had neither the purpose nor effect of discriminating on the basis of race. Jurisdictions with a history of discriminating were covered by a formula in the statute. This was powerful medicine required by a century of vicious vote suppression by southern states. The VRA proved effective in preventing the adoption of racially discriminatory changes, including racial gerrymanders, relocation of polling places, changes in registration and ballot practices, photo ID laws, purges of voter rolls, and other discriminatory tests and devices.
The preclearance provisions were renewed in 1970, 1975, 1982, and 2006 (for 25 years). In 2013, the Republican-appointed justices on the Supreme Court struck down the formula for determining which jurisdictions had to preclear their changes, thereby invalidating preclearance.
The shift of the Republican position from 2006 to 2013 is enormously revealing. The House passed the 2006 renewal overwhelmingly and the Senate passed it unanimously. As Sen. Kennedy’s chief counsel on the Senate Judiciary Committee at the time, I was acutely aware that a number of Republican senators from covered states would have preferred to oppose the bill. The 2006 election was approaching, however, and the Bush White House did not want to allow Democrats to bash Republican candidates with the party’s opposition to the VRA. That was not because Republicans realistically expected to pick up African-American votes, but because they still felt the need to avoid appearing overtly racist to more moderate suburban voters. They also did not want to give Democrats an issue with which to mobilize their base. Republicans in Congress, therefore, fell in line behind the administration.
Republican activists launched legal challenges to the 2006 legislation almost immediately. In 2009, the Supreme Court declined to throw out preclearance, but signaled strongly that it invited the next challenge. By 2013, the five Republican-appointed conservatives were ready. In Shelby County v. Holder, they held that the coverage formula was outdated, conditions in the covered jurisdictions had changed, and preclearance was no longer warranted — despite Congress having concluded the opposite. In short, its opponents argued that the law had worked so well that it was no longer needed. In dissent, Justice Ginsburg compared the majority’s reasoning to taking down your umbrella in a rainstorm because you are not getting wet.
Justice Ginsburg was right. The lifting of preclearance launched an orgy of vote suppression legislation in previously covered states. For example, Texas implemented its previously blocked photo ID requirement. North Carolina passed legislation codifying the greatest hits of vote suppression measures, including photo ID, cutbacks on early voting, and new registration restrictions, all measures that would have been denied preclearance.
It speaks volumes about the evolution of the Republican Party that it felt obligated in the Senate to support VRA renewal unanimously in 2006, but, to date, only one Republican senator has supported legislation to restore the Voting Rights Act after Shelby County. Suppression of minority voters had become central to Republican electoral success.
Since Shelby County, the Republican Party has openly embraced its vote suppression strategy. Trump has wailed falsely about voter fraud to justify his loss of the popular vote and now to oppose voting by mail. In fact, states that currently rely on mail voting, such as Colorado, Oregon, Utah, and Washington, conduct some of the cleanest elections in the country. Trump opted to vote by mail in Florida in March without complaint.
Is the GOP’s calculation that it benefits from vote suppression still correct in these topsy-turvy times? The Republican constituency is older and more vulnerable to COVID-19. While it should be more reluctant to turn out during the pandemic, polling suggests that Trump’s early message — amplified by Fox News and right-wing social media — that the virus was not serious resonated with his followers. They are overwhelmingly less concerned about contagion and less supportive of social distancing. Combine that with their cult-like support, and much of Trump’s MAGA base is still likely to turn out to vote in person.
African Americans have been hardest hit by the virus, which may translate into greater reluctance to vote in person. And, as Wisconsin demonstrates, they continue to face the highest barriers to voting in person because of shortages of voting equipment and polling places that result in lengthy commutes, long lines, and crowded polls.
Democrats must push back strongly to prevent a replay of Wisconsin’s experience across the country. Republicans will continue to press for in-person voting and other restrictions. Democrats must use the leverage they now have through economic relief legislation to pass a federal requirement that every state adopt voting by mail that includes mailing a postage paid ballot to every registered voter.
While Article I, sec. 4 of the Constitution assigns primary authority for administering elections to the states, it empowers Congress to set the terms for federal elections. Congress needs to exercise that power to break Republican resistance to voting. Republican leadership will view this fight as posing an existential threat to the party. McConnell and Trump, however, desperately want recovery money to save Trump’s economy. They must be forced to accept this fundamental repair for our broken democracy as part of the package.
Democratic insistence on removing barriers to voting is not merely a partisan interest. It serves the noblest promise of our democracy. We long ago rejected the notion that voting should be limited to a small minority comprised of white, landholding men. We amended the Constitution to prohibit discrimination on the basis of race and gender and we have enacted foundational legislation to implement those guarantees. We cannot allow the Republican Party to steer the country away from its drive toward universal participation, particularly when a key element of its strategy for winning elections is to disenfranchise minority voters.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.