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By Andrew Bilodeau | andrew.bilodeau@yale.edu
The Voting Rights Act of 1965, also known as the VRA, is commonly considered the most effective piece of civil rights legislation in American history. For most of its existence, its popularity only increased. It has been amended five times by the United States Congress – each time was an expansion of its powers. The Voting Rights Act has served as a pillar of the human right to political participation in the United States.
However, today the United States is seeing a rise in restrictive voting practices that disproportionately impact the poor and people of color. State legislatures from across the country seem to be doing all they can to curtail – not expand – the core principles held in the spirit of the VRA. From Kansas to Wisconsin to Ohio, the American voter is seeing waves of obstruction unseen since the passage of the Voting Rights Act. What is happening? How is it happening? And what does it mean for our democracy?
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In 2013, the Kansas state legislature passed the Kansas SAFE Act. The law required new voters to provide proof of citizenship during their registration process, often satisfied through a birth certificate or driver’s license.
Voters who are unable to provide proof of citizenship are placed on a list of “suspense voters” and are given 90 days to provide proper documentation. Given that birth certificates can take up to two months to arrive from the state, opponents argue that this is a burden on any voter. Further analysis shows that communities of color, the differently-abled, women and the young are all overrepresented on the list of “suspense voters” in the state.
Former Kansas Secretary of State Kris Kobach defended the law as necessary to protect the integrity of state elections, and emphasized that copies of birth certificates are provided for free if procured for voter registration purposes. However, reports have emerged that some Kansans trying to procure a birth certificate to register have been charged anyway, despite the Secretary of State’s assurances. Moreover, the state only covers the costs of procuring birth certificates of people born in Kansas. For those who moved to the state, fees of up to $45 can apply to procuring the necessary documentation from their state of birth.
If a voter is trying to get a driver’s license to satisfy the citizenship requirement, they oftentimes have to travel long distances – only 32 of the 105 counties in Kansas have full-time DMV facilities. In addition to the travel costs, the cost of getting an identification card can be over $20. A driver’s license can be over $40.
Kobach scoffs at challengers who claim that costs, travel time, and waiting periods are an undue burden on voters. “The photo ID part, I don’t think it’s a burden to reach into one’s wallet or one’s purse and pull out a photo ID,” he asserts. The only way someone could argue that his regulations are a burden, Kobach says, is “argu[ing] that you’re exerting calories when you’re doing that.”
In June, Kris Kobach was ordered by a federal judge to stop enforcing the Kansas SAFE Act, as it was deemed a violation of the National Voter Registration Act and the 14th Amendment. However, it was reported after the ruling that Kobach ordered elections officials to keep enforcing the law as usual, ignoring the decision of the court. When confronted with a question regarding the law’s continued application despite the court ordering the state to cease enforcement immediately, a spokesperson for Kobach told the Topeka Capital-Journal, “I think ‘immediately’ is kind of open to interpretation.”
Currently, the majority of states request some form of identification from voters at the polls. These laws vary in levels of strictness and consistency of enforcement. Seven states (Georgia, Indiana, Kansas, Mississippi, Tennessee, Virginia and Wisconsin) currently enforce strict photo-ID regulations in their elections, meaning only identification with photographs of the voter are accepted at the polls. Proponents of such regulations argue (despite ever-increasing evidence to the contrary) that voter fraud is a serious challenge facing election officials that must be met with restrictions like photo-ID requirements.
Challengers of these strict regulations often point out that the time and money needed to procure acceptable identification is a heavy burden to place on certain groups of voters such as the disabled and the working class. Such burdens, they argue, operate as a modern-day poll tax.
And these impacts can be deeply influential in real election results. A 2017 study found that Wisconsin’s voter ID restrictions prevented at least 17,000 eligible voters from casting their ballots on election day.
Hillary Clinton lost the state of Wisconsin to Donald Trump by just around 22,000 votes. Another study,conducted after the 2014 Congressional race in Texas’s 23rd district, concluded that as many as 9% of eligible voters did not vote because they lacked proper ID. A sizable majority of these voters reported their support for Pete Gallego, who lost the election by less than 2,600 votes - just around 1% of eligible voters.
But threats to access go beyond registration and voter ID. Even after a voter fills all the requirements to cast a ballot, getting to the polls is increasingly difficult. There were over 800 fewer polling places in 2016 than there was in 2012. In 2018, those wishing to have their say in one Kansas county had to drive 18 miles to their polling station.
Most election board officials cite costs as the main driver behind poll closures. However, moving voters from long standing polling locations can cause confusion and discourage people from voting, not to mention the increasingly long lines that come as a result of fewer stations. In some places in the country, voters can wait up to 4 hours at the polls.
Even when polling stations remain open, early voting periods are slashed and poll hours diminished. States across the country have eliminated weeks of early voting. This impacts a large chunk of the electorate – nearly a third of the votes cast in 2012 were early ballots.
In Wisconsin, all night and weekend early voting was eliminated ahead of the 2016 election. In Ohio – where black voters are two times more likely than whites to vote early – six weekdays, all Sundays and all evenings of early voting were eliminated. In North Carolina alone, the ACLU estimates that over 200,000 people would have left long lines in frustration before voting if the state’s current laws were in place in 2012.
Why is all this change coming now? One of the reasons may be the 2013 Shelby County v. Holder decision, which stripped the federal government of any practical ability to require certain areas to get election law changes pre-approved by the Justice Department. Since then, Elections Boards across America have engaged in restrictive practices and the curtailing of voting rights. All of this disproportionately impacts low-income and minority voters.
Technically, Congress can solve this simply by enacting a new system for determining which municipalities should come under federal scrutiny. The Supreme Court simply took issue with the outdated list, not the concept of a list itself. However, with a White House and Senate majority that seem to wholeheartedly believe in voter fraud narratives, the odds of that happening are slim.
Another Supreme Court decision, expressed in Husted v. Randolph Institute, might have deeper implications for registered voters. The 2018 case centered around Ohio’s method of voter purging. Voter purging, a process that aims to remove outdated records from election day voting rolls, is normally deemed necessary to ensure states’ lists are up to date. In Ohio, however, the procedures used are deeply controversial.
In Ohio, if a voter doesn’t update their registration or vote once every two years, the state sends a card to their address, giving them four years to confirm their eligibility. If they do not respond in some way, whether by voting in the next election or returning the card, they are removed from the ballot. So, if someone failed to vote in 2016, they’d receive a card in the mail in 2018. If they fail to vote in an election by 2022, they would be forced to re-register in order to vote in the next election.
Voting rights groups argue that Ohio makes it too difficult for people to stay registered. A postcard is easy to lose and might be confused with junk mail. Low-income voters in particular also may not have a reliable mailing address. And, unsettlingly, the notices are sent only in English in a state where 183,000 Latinx people speak a language other than English at home, a number that of course does not include dozens of other communities in the state.
Ohio argues that their law gives voters plenty of time to prove their registration status and that its law does not violate the National Voter Registration Act or Help America Vote Act. Challengers say that Ohio gets around these laws through a technicality that violates the spirit of voting rights in the United States. Federal law prohibits states from purging voters for simply not participating in elections. Ohio’s law was deemed constitutional by the Supreme Court thanks to its postcard return method, which allows Ohio to say it technically doesn’t only consider nonvoting in voter purging, though the process is literally started as a result of an eligible voter not showing up at the polls.
Since Husted, several states have announced intentions to pass purging laws as strict as those in Ohio. The consequences of those policies may end up looking like those in Georgia, where research has found that Governor Brian Kemp improperly removed hundreds of thousands of voters from the registration rolls while serving as Secretary of State. Studies have shown that during Kemp’s time in charge of state elections, Georgia purged voters at a much higher rate – a total of 1.5 million between 2012 and 2018, more than 10% of the state’s population.
Brian Kemp has also met controversy recently for keeping 53,000 voting registrations on hold – 70% of those registrations are for black voters, who make up only 30% of the population. While those voters were able to vote on election day in 2018, they weren’t eligible to vote by mail or via absentee ballot. Just before the election, Kemp was caught on tape saying that his opponent Stacey Abrams’s voter registration advocacy “concerns us [the Kemp campaign], especially if everybody uses and exercises their right to vote.”
Instead of the electorate choosing its representatives, policies that make it harder to register, vote, and stay eligible to participate in elections allow politicians to pick their voters. Both Kris Kobach and Brian Kemp served as Secretary of State while in the midst of tight races to become governor of their respective states. Kemp won his.
Today, we are seeing a new wave of voter suppression unmatched by anything in the last generation. Inherent to membership to a nation is the ability to take part in deciding its future, but leaders across the country are once again attempting to make it harder for low-income communities and people of color to exercise those rights. Americans are being prevented from speaking in the way it counts most, and such practices undermine their status as citizens. More deeply, it undermines the fundamental human right to have a say in how one is governed. As long as local and state governments continue attempts to effectively disenfranchise large groups of the country, how can one call America’s democracy a representative one?