Rigged elections: GOP voter suppression and the Voting Rights Act

The egomaniacal Twitter troll Donald Trump spent more than a year seeking to undermine American’s confidence in their electoral system, first claiming without evidence that the GOP primaries were rigged, then spending months claiming the general election was rigged. Trump falsely claimed without evidence that millions of illegal voters voted to explain losing the popular vote by well over 2 million votes.

Trump even suggested that his supporters might resort to “Second Amendment remedies” if the election did not go his way, Donald Trump Suggests ‘Second Amendment People’ Could Act Against Hillary Clinton, eschewing the American tradition of deciding elections by the ballot box, not bullets.

This is the man who is now in a position to impose GOP restrictions on voting in pursuit of the GOP’s mythical “voter fraud” fraud — in reality, voter suppression of Democratic-leaning voter constituencies. After Bitter Campaign, Election Positions Trump to Shape Rules on How You Vote:

After an extraordinarily contentious election, crucial elements of the rules that determine how Americans vote will be under assault from conservatives and facing legal challenges heading toward the Supreme Court as Donald J. Trump prepares to become president.

Mr. Trump’s claims of a “rigged” election — made before he won — and his false declaration after his victory that “millions of people” had voted illegally for Hillary Clinton made headlines.

They also amplified longstanding Republican claims that rampant voter fraud justified a welter of state laws making it more difficult to register and vote. Democrats say the laws are not about combating fraud but about suppressing the vote of minorities and other Democratic-leaning constituencies.

Mr. Trump will have enormous power to shape future policy on voting.

“The last time we had a national government that was as hostile to the protection of minority voting rights as we may have with this president was probably near the end of the first Reconstruction” after the Civil War, said Pamela S. Karlan, a Stanford University law professor, who was a deputy assistant attorney general under President Obama until 2015.

“There are still strong Republican protectors and champions of voting rights,” she said. “But they don’t seem to have the whip hand in their own party.”

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One Trump adviser, Kris Kobach, the Kansas secretary of state, is among the most aggressive national crusaders for voting restrictions.

Entering a meeting with Mr. Trump last week, Mr. Kobach was photographed carrying a sheaf of policy recommendations. The visible text proposed to “Draft Amendments to the National Voter” — an apparent reference to the 1993 National Voter Registration Act, the “motor voter” law that has come under sharp attack from Republicans.

The law prohibits states from purging voters from the rolls for technical reasons like moving within a district, and imposes a waiting period and other requirements to remove voters.

Conservatives say the requirements keep ineligible voters on the rolls and promote fraud. Democrats say the law prevents partisan purges of poor and minority voters.

Mr. Kobach, who once suggested that Mr. Obama was plotting to replace American voters with socialist-leaning legalized immigrants, is the leading advocate of requiring everyone to present proof of citizenship when registering to vote instead of swearing an oath. Critics say the poor are far less likely to have those documents, and the costs of obtaining them essentially amount to a poll tax, which has long been unconstitutional.

Trump’s promotion of the widely debunked myth of rampant voter fraud and the presence in his inner circle of political leaders who supported stricter voting laws send a troubling signal, say advocates who have spent the past several years fighting what they say are efforts to disenfranchise minorities and young, elderly and low-income voters. Voting rights advocates brace for ‘biggest fight of our lifetime’ during Trump administration:

“They don’t want us to participate in this democracy,” said Cristóbal J. Alex, president of the Latino Victory Project. “We are gearing up for what will be the biggest fight of our lifetime.”

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Among those concerned about the Trump administration’s approach is Chris Carson, president of the League of Women Voters, who said last week in a statement on the group’s website, “This election was rigged.” But she was referring to what she and other advocates describe as “voter suppression.”

This point was emphasized by the Washington Post‘s Dana Milbank in a recent column. The election really was rigged: “A voting scandal of epic proportion tilted this election. The scam involved millions of people . . . Millions of would-be voters didn’t participate because of obstacles designed to discourage them.” “Focus instead on the scandal that really is rigging American democracy.”

In an interview this week, Carson cited Ohio, where, in violation of federal law, officials dropped 400,000 voters from the rolls because they had not cast ballots in recent elections. The league sued, and a federal court ordered the voters reinstated a few weeks before the election. Carson said league members scrambled to call as many voters as they could.

The league also sued to block the states of Kansas, Alabama and Georgia from requiring people to show proof of citizenship to register to vote. “We’re not going to sit here and accept . . . that we can just willy-nilly restrict the right of eligible citizens to vote,” she said.

Many of the laws that advocates have fought were put in place after the Supreme Court’s 2013 decision striking down a section of the 1965 Voting Rights Act that required states with a history of discrimination against minority voters to seek the Justice Department’s approval before making changes in voting laws and procedures.

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Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said the group’s Election Protection coalition was contacted by 117,000 voters and would-be voters who had problems during the election cycle. “We did not receive any complaints of voter fraud, but we received plenty of complaints of elections officials requiring identification where there was no such requirement in place, of polling machines malfunctioning, of individuals brandishing weapons at polling sites, of students being told they were not eligible to vote,” she said.

“To suggest that vote fraud is rampant across our country invites states to put in place laws making voting more difficult, and that is incredibly anti-democratic,” she said.

Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice at the New York University School of Law, said the Trump administration could change the voting landscape in a few ways. They include not filing lawsuits against states in which voter suppression is alleged, pressing for more aggressive purges of voter rolls or trying to push legislation through Congress, Weiser said.

The president-elect’s statements and some appointments and Cabinet nominations that he has made have been of particular concern to groups that fear that a Trump administration could move to suppress voting among black, Hispanic, elderly, young and rural voters. They are worried about Trump’s nomination of Sen. Jeff Sessions (R-Ala.) to be attorney general and his appointment of Kansas Secretary of State Kris Kobach, an anti-illegal-immigration hard-liner, to his transition team. Kobach also has pushed rules — which were challenged in court — that would require proof of citizenship for those seeking to register to vote. And they fear that a Trump appointee to the Supreme Court could undermine voting rights.

Sessions’s nomination to the federal bench was rejected in 1986 in part because of a voting rights case he handled while U.S. attorney in Alabama. Sessions’s office alleged then that three black civil rights activists in Perry County, Ala., had tampered with absentee ballots. The activists argued that they changed the ballots with the consent of elderly and illiterate voters and that they were being targeted to suppress the black vote.

Kobach is one of the nation’s foremost advocates for adding more requirements for people to vote or register to vote. He is considered a possible candidate for a Trump Cabinet post.

“Given the troubling rhetoric and records of the president-elect and his nominee for attorney general, I am deeply concerned that the Trump administration will use totally unsubstantiated claims of voter fraud of this nature to make it more difficult for citizens to vote,” said Rep. John Conyers Jr. (D-Mich.), who participated in the 1963 voter registration drive known as Freedom Day in Selma, Ala.

Trump’s greatest influence over election policy may lie in the Supreme Court, where he has pledged to nominate a reliable conservative to the seat vacated by Justice Antonin Scalia. After Bitter Campaign, Election Positions Trump to Shape Rules on How You Vote:

At least two major voting lawsuits against the Texas and North Carolina state governments seem likely to be appealed to the court. In both, federal courts of appeals this summer voided or modified Republican laws requiring voters to produce photo IDs, saying they disproportionately reduced minorities’ turnout.

The court has upheld photo ID requirements before. But the new cases marshal far more evidence of their outsize effect on minority voters. The North Carolina ruling concluded that the state intentionally imposed restrictive rules “with almost surgical precision” to suppress African-American voters.

Whether the Supreme Court will agree is an open question. Many legal experts say the eight justices appear evenly split over whether the Texas and North Carolina laws violate the Voting Rights Act or the Constitution. Should the cases be heard after a Trump nominee is approved, legal analysts agree, the chance that the laws will be reinstated will markedly increase.

“If it is someone whose stance is like Justice Scalia, you should expect a reversal” of the appeals courts, said Ellen D. Katz, a former Justice Department lawyer and a law professor at the University of Michigan. “Every signal they’ve given us to date is that they would overturn the decisions.”

Yet some analysts are less certain. In recent cases, for example, courts have broadly agreed that ID laws must be written so that people who cannot reasonably obtain required identification cards still get an opportunity to vote.

“Courts are going to insist on a safety net” for voters without proper IDs, said Edward B. Foley, a professor and director of the Election Law Project at Ohio State University’s law school. “Even conservative appeals judges are buying into that.”

The Supreme Court also seems certain to address a second important question: whether majority parties in state and local governments can gerrymander political maps during redistricting, redrawing boundaries in ways that solidify their hold on power.

Gerrymandering to dilute minority voters’ power has long been illegal. But while justices have said partisan gerrymandering is wrong, they have never decided whether they can outlaw it. Three partisan gerrymandering cases are moving toward hearings in a Supreme Court that some experts say could be poised to rein in the tactic, even with a Trump appointee.

Other policy questions remain unanswered, Professor Katz and others said, including whether the Justice Department will pursue voting rights lawsuits that the Obama administration started or joined. Nor is it clear how vigorously it will enforce Voting Rights Act clauses that remain.

The 2013 ruling ended the department’s power to oversee voting and election rules in jurisdictions with histories of racial bias. Advocacy groups and pro bono lawyers have assumed some of those watchdog duties. But whether the agency will enforce remaining clauses of the law by bringing or joining lawsuits like those in the Texas and North Carolina cases is unknown.

“The consequences here will be in what they don’t do as well as what they affirmatively do,” Professor Katz said. Should enforcement taper off, she said, “it’s not clear that the private bar can step up and do all the things the Justice Department has been doing.”

Still, officials at voting-rights organizations said they hoped to build a bipartisan consensus on issues like automatic voter registration and restoring voting rights to ex-felons where some Republicans support reforms. [See, Automatic Voter Registration a ‘Success’ in Oregon].

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One leading organization, Common Cause, will renew efforts to block any resurgence of state or federal laws making registration or voting more difficult. “There’s a concern at the federal level that there could be the introduction of laws to make photo IDs a national requirement, or to require documentary proof of citizenship at registration,” said Allegra Chapman, the group’s director of voting and elections.

It is a sharp turnabout from the scenario most expected would unfold under a Clinton presidency.

“What’s the phrase? ‘These are the times that try men’s souls,’” said Lloyd Leonard, director for advocacy at the League of Women Voters in Washington. “We’ll be playing defense in a number of areas.”

There are ways to go on offense. More on that topic later.

UPDATE: Ari Berman of The Nation reports Republicans are rushing to make it harder to vote in states like Michigan, New Hampshire, North Carolina, Texas, and Wisconsin. Trump’s Lies About Voter Fraud Are Already Leading to New GOP Voter-Suppression Efforts:

Less than a month after Donald Trump unexpectedly carried Michigan by 10,000 votes, Republicans in the state legislature are already pushing to make it harder to vote. The presidential recount hasn’t even finished yet and Michigan Republicans are trying to pass a strict voter-ID law through the lame-duck legislative session before the end of this year.

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This is happening in other states as well.

In New Hampshire, newly elected GOP Governor Chris Sununu has called for eliminating same-day registration, and Republicans in the legislature want to tighten residency requirements to vote.

In North Carolina, GOP Governor Pat McCrory spread bogus claims of voter fraud before finally conceding to Democrat Roy Cooper, while conservative groups are challenging same-day registration and the GOP legislature is considering packing the state Supreme Court in a special legislative session beginning December 13 to reassert Republican control after Democrats won a 4-3 majority on election night.

In Wisconsin, Republican leaders called for cutting early voting, again, after high early-voting turnout in Democratic cities like Madison and Milwaukee. “We’re probably going to have to look at it again to make sure that everybody in the state has the same chance to vote,” said House Speaker Robin Vos.

In Texas, Lt. Gov. Dan Patrick has called for reviving the state’s strict voter-ID law, which has repeatedly been struck down as discriminatory by federal courts, listing it as one of his top 10 priorities for the 2017 legislative sessions. “I know we’re going to do photo voter ID again,” he said.