Stop the Vote

 

Republicans seem to have come to the conclusion – even with a Constitution that clearly favors rural-red over urban-blue states – that they cannot win a national election and a growing number of state elections unless they find “legitimate” ways to keep Democrats from voting. And as the clearest and most identifiable segment of Democratic voters are people of color, making it hard for minorities to vote (without making clearly unconstitutional racial determinations) is the highest priority for GOP state legislatures. There are currently over 250 state bills proposed by Republicans aimed at doing just that. 

The dictates of Citizens United vs FEC (a 2010 Supreme Court ruling that took the lid off of SuperPAC spending that clearly and overwhelmingly benefited Republican causes and candidates) apparently were not enough. Activist right-wing judges are slowly repealing the equal protection provisions of the US Constitution.

We have a red-rural bias built into our system of government. For example, 30% of the voters (mostly from sparsely populated rural states) elect 70% of the Senate. Two Senators from each state regardless of population.  States also have the constitutional power to set voting rules and districts. Add the provisions of Shelby County vs Holder (2013 US Supreme Court ruling that repealed federal oversight, under the 1965 Voting Right Act [amended as recently as 2006], over southern states that had the most egregious voting restrictions), which opened the floodgates of new voting restrictions, unabashedly aimed at disenfranchising Democrats that were opened wide. 

I began this discussion with my February 27th blog, Voting Rights, Conspiracy Theories and Catch-22, but the Supreme Court has since heard oral arguments on the a case challenging this new spate of GOP legislative voter suppression. So far, as long as there is no direct connection between voter suppression and constitutionally proscribed discrimination – usually just a matter of choosing your words carefully knowing that the effect will be precisely that form of prohibited discrimination – the Court has otherwise routinely allowed incumbent political parties to make it politically more difficult for their opponents to have equal access to the ballot box. The argument that has sustained this imbalance is that the Constitution does not specifically proscribe political bias in the states’ rights to set voting rules. It only proscribes racial bias.

Civil and voting rights advocates, noting a newly configured and mostly GOP-appointed Court, fear that this judicial rubric will be used to marginalize if not totally repeal the remaining major provision of the Voting Rights Act (particularly Section 2, which prohibits racial discrimination in voting laws). Simply looking at words vs results would allow severe marginalization of voters of color. On March 2nd, the Court focused on oral arguments in Brnovich vs. Democratic National Committee regarding new voter restrictions imposed in Arizona: “One rule calls for throwing out ballots cast by voters who arrive at the wrong precinct on election day but want to vote there anyway. The other forbids ‘ballot harvesting,’ making it a state crime for anyone — other than family members, caregivers or postal workers — to collect and return mail ballots.

“In their comments and questions, most of the justices said they were in search of a middle-ground position, blocking new restrictions that could have a significant impact on Black, Latino or Native Americans, rather than automatically invalidating any rule that has different impacts based on race.

“Both of Arizona’s rules were in effect during last year’s election, when Joe Biden narrowly defeated then-President Trump in the previously Republican-leaning state, which also elected another Democrat to the Senate. But since then, Republican state lawmakers there and in other GOP-controlled states have proposed dozens of new rules that could make it harder for Black people and Latinos to vote.” David Savage, writing for the March 3rd Los Angeles Times. 

Republicans cite voter fraud and election integrity as justifications – where they even need a justification – despite a dramatic lack of proof that there is or was any meaningful fraud in any recent election. But when a significant GOP majority remains convinced that Donald Trump won the November election – despite Biden’s 74 electoral and 7 million popular vote majority margins – you completely understand why they desperately need to keep Democrats from voting. Effectively, the optics have to look good, even if the practical effect is to marginalize voters of color.

“Washington attorney Michael Carvin, representing Arizona Republicans, said the court should uphold state election rules as long as voting is ‘equally open’ to all groups. He cited as an example the requirement to register to vote in advance, which may exclude more racial minorities than white people…

“During Tuesday’s argument, Justice Elena Kagan pressed the Republicans’ attorney to clarify when voting rules should be considered to be ‘equally open’ to racial minorities… What if the state has one polling place per county, which means that Black voters in urban counties have to wait 10 times as long as white voters, she asked… What about if a state with two weeks of early voting, including Sundays, passes a new law to close polls on Sunday, Kagan asked. Several Republican states are weighing proposals to do that… Carvin said that should be permitted, even if it would have a discriminatory impact on Black voters. ‘Sunday is the day that we traditionally close government offices,’ he said. [Sunday is church day for a large number of Blacks and Latinos.]

“Kagan continued with another scenario: ‘The state says we’re placing all our polling places at country clubs.’… Carvin said that would be a problem and unfair to minority voters… Other justices pointed to Kagan’s questions as evidence that it is not enough to say a voting rule is legal because minorities are not ‘denied’ the right to vote… But several of them also spoke approvingly of Arizona’s rule against ballot harvesting.” LA Times. The tea leaves suggest that voter discrimination against people of color will be allowed as long as the statutory wording does not allow racial discrimination, even if the effect is to disenfranchise people of color.

This blog has dealt with voter suppression, but remember, by gerrymandering alone, Republican state legislatures actually have the power to shift control of the House to the GOP in the 2022 midterms by doing absolutely nothing more than redistricting a few states. Florida alone can almost make up the difference to the existing Democratic majority in the House. And to date, gerrymandering for political advantage – without clear racial discriminatory intention – has never been reversed by the U.S. Supreme Court.

As the Democrat House majority is poised to pass a wide-ranging new voting rights act, one that truly does protect minority voters, grinning Republicans know that they can kill that nascent legislation under Senate filibuster rules. “Stop the Steal” has now become, “Let us steal.”

I’m Peter Dekom, and we are the only major Democracy on earth where legal voter suppression is permitted.