The Problem: Voter Suppression and Race
Free, fair, and regular elections form the cornerstone of the American experiment, allowing citizens to exercise their most basic political right: the right to choose who governs. This right has expanded in America through most of its history, but in recent years efforts to reverse this trend have gained steam.
Voter suppression is deeply linked to a troubling history of laws passed to disadvantage minority voters and marginalized communities. From the nation’s founding until today, whenever an emerging group of Americans have sought the right to vote, people and institutions have fiercely fought to stop them. Today, that battle centers over state-based legislative attempts to suppress minority turnout.
According to the Brennan Center for Justice, after the 2010 election state lawmakers nationwide began to introduce hundreds of harsh measures making it harder to vote. The new laws range from voter ID requirements to limiting early voting to registration restrictions. All in all, 25 states have put in place new restrictions since then. Last year alone, 99 bills designed to diminish voter access were introduced in 31 state legislature.
In the lead up to the 2018 election, governors, secretaries of state, and state lawmakers across the country purged voter names from rolls and adopted stricter ID laws. In Georgia in 2018, in addition to purging rolls, then-Sec. of State Brian Kemp used his office to put 53,000 registrations on hold. To highlight the outsized impact his office’s methods had on minority voters: Georgia’s population is 32% black, but the percentage of black voters with registration holds totalled 70% of the list. This was particularly problematic (and unconstitutional) because Kemp was responsible for overseeing the administration of an election in which he was running for Governor.
President Trump has exacerbated the problem, attempting to undermine the legitimacy of elections by repeatedly calling into question the results, and spurring xenophobic sentiment by exaggerating the prevalence of voter fraud. He refuses to condemn Russian interference in the 2016 contest or take meaningful steps to prevent such interference from happening again. In fact, his administration and campaign considered offers of Russian assistance.
There also exists a clear danger of voter suppression by private actors using tools that have not previously existed—particularly social media. This has included Russian digital efforts, but political campaigns are also using social media advertising to intimidate communities of color via intimidation. Further, as has been highly reported from the 2016 campaign, misleading digital ads exploit nuances in racial divisions to influence communities and discourage voter turnout. Greater transparency of digital ads will help to combat voter suppression.
HR 1 and the VRA
In 2013—five decades after the enactment of the landmark 1965 Voting Rights Act (VRA)—the Supreme Court struck down the VRA’s preclearance system in Shelby County v. Holder. The preclearance system had enabled the Justice Department and federal courts to block proposed discriminatory voting restrictions in states with established histories of discrimination. In their decision, the Court ruled that Congress had not provided sufficient guidance in determining those areas that should be subject to preclearance.
Additional provisions in HR 1 would devise a new formula for determining geographies with well-documented histories of discrimination that would be subject to preclearance.
PD’s Proposed Solutions and Actions
We have proposed legislative solutions for Congress, executive actions any president can implement, and are fighting in the courts to address the voter suppression that occurred during the 2018 elections and prevent election interference of any kind going forward.
Legislative and executive solutions
Sections four and five of our “Roadmap for Renewal” legislative blueprint offer several proposals for Congress (detailed below) that protect inclusive and fact-based democratic dissent, and modernize our campaigns and election system to protect participation and accuracy. Many of these reforms are also discussed in our 2020 Presidential Platform.
Roadmap for Renewal – Relevant Proposals:
- Ensure eligible voters have access to vote and have their votes counted including by:
- Enacting legislation to create automatic registration, make voter registration portable between every state, restore voting rights to former prisoners, require that polling location and registration status be available online, and increase federal resources for state and local election boards, possibly through the mechanism set forth in the 21st Century Voting Act;
- Making election day either a national holiday or a weekend – possibly through the Weekend Voting Act, which moves elections from Tuesdays to the first full weekend of November, with elections lasting two full days;
- Reauthorizing and updating struck-down portions of the Voting Rights Act, in order to continue protecting voting rights in the 21st century; and
- Preventing long lines at the polls by setting and enforcing standards regarding the distribution of voting machines and poll workers.
- Reduce corruption in campaigns and increase democratic accountability by:
- Enacting reforms to the campaign finance enforcement system that close disclosure loopholes, create a new enforcement and oversight agency or fix the FEC, and reduce opportunities for corruption or the appearance of corruption;
- Requiring states to establish independent redistricting commissions to avoid partisan gerrymandering; and
- Passing the Honest Ads Act, which subjects social media companies that provide platforms for civic discourse to federal regulation and campaign ad disclosure requirements.
- Harden election machinery and campaigns against cyber-attack from foreign or domestic actors by:
- Appropriating additional funds and resources to states and municipalities for election security, administration, and information sharing;
- Passing the bipartisan Secure Elections Act, which provides states with funding to replace decaying election systems and replaces or incorporates Voter Verified Paper Audit Trails; and
- Passing the bipartisan Defending Elections from Threats by Establishing Redlines (DETER) Act, which addresses Russia’s meddling in the 2016 presidential election by attempting to deter Russian actors through targeted sanctions.
- Prevent the use of government as a political weapon against dissenters by:
- Clarifying that judicial redress is available in situations where there is political interference in regulatory or enforcement actions against media organizations;
- Prohibiting federal officials from coercing private employers to stifle the political speech of their employees, and private employers from coercing employee speech to curry favor with government actors; and
- Requiring reporting to Congress and the public on contacts between the White House and agencies on party-specific regulatory matters.
- Require that federal law enforcement surveillance and monitoring of domestic organizations responds to the level of the threat and does not stifle First Amendment-protected activity, including by:
- Prohibiting monitoring based on race of the type outlined in the DHS “race paper”;
- Ensuring that countering violent extremism programs focuses on all those who may pose such a threat, including domestic and white-supremacist terrorism; and
- Providing guidance, training, and funding to states and cities to prevent and respond to armed or militia violence in their jurisdictions while protecting peaceful protests.
Prohibiting Abuse of Official Powers to Interfere in an Election
We’re also working to pass legislation to address the problem of government officials unconstitutionally using their official powers to interfere with voting or the conduct of an election. The Due Process Clause bars any official from serving as “a judge in his own cause,” as well as from undermining the fundamental fairness of an election.
But relying on judicial enforcement of these constraints is often too little, too late. Congress can and should strengthen the guardrails against interference in elections to ensure a level playing field for all candidates. The key components of this would be:
- Protecting political candidates from improper law enforcement activity.
- Preventing voter intimidation by Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE).
- Ensuring equal access to government resources for political candidates and campaigns.
- Preventing deceptive practices in elections.
As mentioned above, we filed suit in Georgia last November to prevent then-Sec. of State Kemp from unconstitutionally supervising a recount in his own race. Instead of arguing against us in court, he resigned. We filed a similar suit to prevent Governor Scott from overseeing his Senate race recount in Florida. We wrote about the problem and why we sued in this NYTimes op-ed.
We also intervened in a case to shutdown the Pence-Kobach commission which was collecting sensitive voter information from election officials around the country. Shutting the commission down deprived the President of a mouthpiece to foment fear and division, and ultimately suppression.