Symposium | Winning the Voting Wars

A Temporary Victory: Looking Ahead to 2014 and Beyond

By Jeff Hauser

Tagged voting rights

The voter suppression efforts by Republicans in the recent election sparked, thankfully, a well-organized grassroots response, as well as much critical media attention. From civil-rights, faith, and labor groups to media outlets ranging from The New Yorker and The New York Review of Books to Daily Kos and The Miami Herald, the attack on democracy received significant scrutiny.

And so, the story goes, the effort failed. President Obama’s re-election proves that all is well. Indeed, the heavy turnout by minorities in states like Ohio and Florida suggests to some that suppression had the ironic effect of boosting turnout for Obama. If that were the whole story, one might think we had heard the last of this sort of attack on democracy.

Think again. Progressives will have to be even more vigilant, and even more strategic, in the coming years. The conservative motive, means, and opportunity to reduce suffrage are not changing a whit: Broad political participation hurts Republicans, they have an enhanced understanding of what works legally and politically, and the GOP retains significant federal and swing-state political power after the Democrats’ cataclysm in the 2010 midterms. Furthermore, the nature of the Republican coalition—relatively diffuse geographically and relatively powerful socioeconomically—means that it does not risk Democratic retaliation in kind.

Democracy advocates responded heroically to Republicans’ 2012 efforts, but 2012 was just another battle in a war without obvious end. What might we see in 2014, and what should the pro-democracy movement be prepared to do? Democracy advocates need to play defense on all battlefields and push affirmative measures designed both to protect suffrage and to rationalize election administration. And perhaps most importantly, progressives need to make sure that the conservative movement pays a political price for its efforts to suppress the vote.

What’s Coming in 2014

Before looking forward, it’s worth revisiting the legal victories of 2012—victories that were less permanent than they may have seemed in the run-up to the election.

Some coverage of court decisions, like the ones that blocked implementation of the Pennsylvania and Wisconsin voter-ID laws in 2012, obscured the fact that the decisions did not permanently invalidate the laws but rather merely prevented their implementation before November’s elections. For instance, the unnecessary and for many citizens onerous Pennsylvania requirement stands a strong chance of being in place for the contentious 2014 re-election of the Republican governor who signed it into law. The October court decision temporarily blocking the bill seemingly offers a roadmap to voter-ID proponents of how to receive judicial go-ahead. Essentially, if the Republican-run state government convinces a judge that the required voter IDs are sufficiently available to Pennsylvanians, the injunction against the law (based on fighting an entirely unsubstantiated fraud problem) will be lifted. The future of the Wisconsin law is less clear, as current lower state court rulings against it are under appeal, but Republican appetite for voter-ID laws and gerrymander-assisted control of the state government makes it a live risk.

Additionally, in states where voter ID and other “counterfraud” efforts have not yet been taken up, the passage of such laws may be made easier by the wide attention that has been paid to “voter fraud” in recent years. Social science research has underscored the difficulty in correcting misperceptions and the risk that debunking can actually help reinforce the original misperception. That resilience means that viral untruths about ACORN and minority voter fraud, given ample hearings on Fox News and talk radio and seeping into mainstream coverage, are likely to remain virulent for a long time.

Accordingly, the coordinated normalization and expansion of efforts to combat nonexistent voter fraud is continuing apace in 2013. From states that seem like improbable Republican suppression targets (West Virginia) to states where their efforts are likely to fail (New York), conservatives are expanding their pursuit of the voter-fraud bogeyman across the country, including to Alaska, Arkansas, Montana, Missouri, North Carolina, and Wisconsin. The unlikeliness of some of these efforts suggests that pursuing suppression is an easy ideological box for many Republicans to check. Additionally, the inclusion of predominantly white states also helps the national movement argue that proponents simply “don’t see race,” even as they fail to offer an empirical basis for their schemes.

However, the most consequential battles are likely to occur where race and partisan consequences are both in play. Consider Virginia, where Tea Party icon Ken Cuccinelli, the Commonwealth’s attorney general, told a radio host in a November interview that she was “preaching to the choir” when she complained that “[Obama] can’t win a state where photo ID is required. So clearly there’s something going on out there.” It’s not that Virginia failed to get in on the bogeyman suppression effort—the state’s 2012 voter-ID law required a voter provide an ID (not necessarily with a photo) at the polls, or within three days after casting a provisional ballot. The 2012 law proved insufficient to undermine Obama or depress African-American turnout, even if it did lead to some long lines at some polling places. It’s no surprise then that a radicalized Virginia GOP seeks to implement a photo-ID requirement before this year’s gubernatorial contest—arguably the nation’s highest profile 2013 election—between former DNC Chairman Terry McAuliffe and Cuccinelli himself.

Lately, Virginia has received more national attention for several relatively novel and extremely ambitious electoral gambits. In the evenly divided state senate, where each party holds 20 seats, the GOP had brief success exploiting the absence of Democratic state senator Henry L. Marsh, a 79-year-old civil rights veteran. Marsh missed a legislative session to attend President Obama’s second inauguration, and the senate’s Republicans used their temporary majority to pass a highly suspect re-redistricting of Virginia’s state legislative maps. National scorn (and Governor Bob McDonnell’s threat of a veto) thwarted that effort.

But the state GOP isn’t done. In January, the party introduced a bill that would allocate electoral votes by congressional district, rather than by the winner-take-all system of statewide popular vote. The logic behind the move is obvious: Any state that leans Democratic can be diminished in Electoral College importance by ending the winner-take-all norm. Moreover, Republican dominance in many states in the wake of the 2010 elections gives them the room to consider this tactic without short-term worries about Democratic retaliation in kind. Five other states—Wisconsin, Michigan, Pennsylvania, Ohio, and Florida—have considered similar legislation, but the outcry from critics has been so loud that Republicans in those states have abandoned these plans for now. If the proposed system had been in effect in all six states in 2012, according to electoral demographer Alan Abramowitz, Mitt Romney would have become president with 271 electoral votes—even while receiving five million fewer popular votes than Obama.

These assaults are both unlikely to succeed and yet so consequential as to demand a serious response from progressives. And so, even if they fail, they matter. While progressives fight off radical revisions to the Electoral College, will they have the resources available to make sure that urban precincts have enough voting machines, or that voting places are located in places where those without cars can still access them with ease?

Will the Law Be on Democracy’s Side?

Eric Holder’s Justice Department blocked voter-ID laws in Florida, Texas, and South Carolina under the embattled Section 5 of the Voting Rights Act. Section 5, which enables heightened Justice Department scrutiny of states with strong histories of discrimination, may be held unconstitutional by the Supreme Court’s dominant conservative bloc this spring in Shelby County v. Holder. As Jeffrey Toobin noted in The New Yorker, “The Roberts Court, and especially the Chief Justice, has shown a marked animosity toward the Voting Rights Act.” It seems likely that this bulwark against further entrenchment of Southern white political power will be eliminated before the midterm elections. The demise of Section 5 would not only revivify dreadful laws, but encourage further voter-suppression efforts in increasingly competitive states like North Carolina and Virginia.

But even if the somewhat unlikely legal winning streak of democracy proponents in 2012 were to continue, it’s also the case that conservatives now have a much clearer sense of what impediments to voting are likely to survive judicial scrutiny than they did in 2011, when the assault began. For instance, Ohio’s Secretary of State Jon Husted tried and largely failed to limit in-person early voting—which is widely believed to benefit Democrats—because his effort made an exception for military voters. A future effort may sacrifice the troops for partisan goals.

But the savviest conservative strategy would be to resist moves that directly bump up against popular and legal support for the right to vote and to further exploit judicial reluctance to investigate motive. The Supreme Court under Warren Burger—that is, a Court far less conservative than today’s—ruled in cases from San Antonio v. Rodriguez to Washington v. Davis that laws that ended up being discriminatory in effect but that were not written with that intent were constitutional. Even Justice John Paul Stevens made such a ruling. In 2008’s Crawford v. Marion County Election Board, Stevens’s decision placed the burden to show harm on affected citizens, rather than on the state to demonstrate that voter ID fulfills a need. So there is ample precedent for Court decisions that credulously accept weak, proffered motives of states engaging in behavior that systemically harms people of color more than whites.

Those cases not only undermine the pushback against voter-ID laws, but more broadly empower politicians to aid themselves by making superficially neutral decisions like allocating insufficient funds for early voting or voting machines in poorer areas. It is clear that vastly longer lines for urban populations have not in and of themselves prompted legal scrutiny, which affords Republicans significant leeway for actions—or inaction—that are, ostensibly, racially and politically neutral. Under the nominally neutral principle of “local self-governance,” affluent GOP-leaning municipalities can more readily invest in adequate electoral infrastructure, from machines to voter education to poll worker training.

Even potentially legitimate reforms, like electronic poll book check-in, require a significant investment in a time of widespread municipal government austerity. It is all too easy, especially in austere times, for state and local governments to offer neutral-sounding justifications for failing to provide adequate resources to administer the vote. Expect, then, a series of moves across the country to promote electoral “economy” that are more subtle than the voter-ID push, but no less invidious to election administration.

The failure of courts to undertake searching scrutiny of allegedly neutral or even acknowledged partisan behavior (like partisan gerrymandering) provides voter suppression advocates a roadmap to judicial success. That 2011 witnessed overreach by those forces in the form of poorly crafted laws is not something we can expect again. And with institutions like the American Legislative Exchange Council and the Heritage Foundation, the right has the means to promulgate model bills far and wide and tap into a state-by-state infrastructure.

What Is to Be Done?

The 2012 election year saw a broad, heroic effort by a wide range of progressive and voting-rights organizations to protect democracy. But the effort wasn’t perfect. For example, an Ohio State University researcher worked with the Orlando Sentinel to show that “at least 201,000 [Florida] voters likely gave up in frustration” on Election Day due to long lines. Those additional voters, likely to have been heavily Democratic, would have given Obama a larger margin of victory in a state he won by a narrow margin. There is every reason to think other failures of electoral administration hurt Obama, down-ballot Democrats, and democracy.

But it can get even worse than 2012.

And so we need to repeat 2012’s commendable work, as well as explore new efforts. We should see what we can learn from Minnesota, where an extensive voter-education effort led to the surprising defeat of a ballot initiative for a government-issued photo ID requirement. That initiative had 80 percent support in the polls until a coalition of Minnesota progressives swung into action. They countered the measure by educating Minnesotans about the burdens it would pose for older voters and others disproportionately affected—all for a solution in search of a problem.

Promising initiatives to expand and ease voter registration, as in California, should be pursued across the country, even where initial victory seems unlikely. [See “Make It Easy,”] The United States is one of only five democracies that puts the onus of registration entirely on voters rather than the government, according to a 2009 Brennan Center study.

And if progressives are in the spirit of promoting democracy, they might well consider expansions of democracy such as statehood for the District of Columbia. If the GOP can shamelessly manipulate the Electoral College to undermine the will of the people, then it hardly seems overly partisan to give the people of D.C. real representation in Congress.
Perhaps most importantly, progressives must learn a vital messaging lesson from 2012. Central to the reformers’s success was the vigorous communications campaign that associated the Republican Party with voter suppression. That message motivated affected communities to fight back by voting. We’ll need to maintain that message so long as Republicans see electoral advantage in suppression.

But it won’t be easy to make that message resonate in 2014. The nation’s first African-American President will not be on the ballot. And minority turnout tends to fall precipitously in midterms. The drop-off in political interest in a midterm makes it harder to stoke the broad-based outrage required to generate political payback against suppressors.

But it is imperative that there be costs associated with voter suppression for the GOP. Republicans retain significant political and judicial levers over the nation’s voting system. So long as figures like Chief Justice Roberts, Ohio’s Secretary of State Jon Husted, and Pennsylvania House Majority Leader Mike Turzai (who infamously admitted that the state’s voter-ID law would help Mitt Romney) remain valued members of the conservative movement rather than discredited opponents of democracy, our election process remains vulnerable.

But over time political parties tend to bend toward survival. The harder Democrats work against voter-suppression efforts, the more faith groups and others with nonpartisan voices will speak out to shame the suppressors, the more the media will step up and press Republicans to justify their efforts, and the greater will be the electoral downside to impeding the vote. In the end, a political party with motive, means, and opportunity to shape the electorate to their liking is a dangerous thing.

From the Symposium

Winning the Voting Wars

Barack Obama's second inaugural included what most would expect from a progressive President, including calls for action on climate change, inequality, and immigration reform. But near the peroration, the President also declared, Our journey is not complete until no citizen...

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Jeff Hauser is the Executive Director of the Revolving Door Project at the Center for Economic and Policy Research.

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