Kentucky’s June 23 primary election went smoothly for the most part – until the polls closed.
Footage of crowds banging on doors, demanding that the poll workers inside let them vote, evoked scenes from a dystopian novel – or The Walking Dead.
Those doors belonged to the Exposition Center in Louisville, the largest city in the Bluegrass State and the seat of Jefferson County. Because the center was the only polling place for the county’s 700,000 residents, an Election Day traffic jam stirred panic among last-minute voters. Though a local judge ruled that the doors could stay open a little longer, those voters, while relieved, suspected that an attempt had been made to silence them.
Others watching from across the country agreed. Jefferson County, after all, is home to about half of Kentucky’s African-American population. Charges of voter suppression were thus layered with racial overtones. Given that polling places in minority communities have been closed rather routinely in recent years, it’s not hard to see why.
But in the context of the pandemic, several things must be kept in mind.
Since coronavirus arrived in this country, states have been struggling to figure out how to conduct elections both safely and securely. The most unfortunate thing about the Kentucky primary’s messy moments is that they were familiar. In the name of safety, Kentucky consolidated its polling locations just as South Carolina did two weeks before and Wisconsin did back in April.
Given such conditions, Kentucky’s election was relatively successful. Most voters at the Expo Center that day reported generally painless experience. Most Kentuckians, in fact, had already voted by mail with record turnout.
So there’s voter suppression, and then there’s unpreparedness. The two, however, can coexist. And where unpreparedness fails to explain the obstructed voter, a more sinister truth takes its place: that the greatest threat to turnout this year is not a virus. As November approaches, partisanship is driving some to subterfuge – and the red flags are already flying.
The War on Vote-By-Mail
The state of voter suppression in 2020 is, above all else, ironic. In the past, its object has been to keep voters home. Now, it seeks to force them to the ballot box.
Those outraged by what happened in Kentucky were thus blowing the whistle from the old stadium. Much of the vote this year will arrive in the mail, and the tactics used to suppress it are adapting accordingly.
But to understand the war on vote-by-mail, we must first know who is waging it and why.
The prospect of catching an infectious and potentially fatal disease hardly encourages the average voter to spend Election Day waiting in line at the polls. Voting by mail has never seemed more appealing or necessary.
But Republicans are already suffering the down-ballot effects of an increasingly unpopular president, and now they fear that vote-by-mail will increase turnout among Democratic-leaning voters: young people, minorities, and the poor.
It’s not clear that mail-in voting actually benefits one party over the other, but the possibility is concerning enough to stop it. Restrict access to vote-by-mail, turnout will shrink, and the red team may just be able to evade a historic defeat in the general election.
Importantly, many Republican officials do embrace vote-by-mail. Multiple states, like Arizona, have constructed successful mail-in systems under Republican leaders. Utah Senator Mitt Romney, whose constituents have been voting by mail almost exclusively for years, says that the approach “works very, very well” even in his “very Republican state.” Voting by mail, in fact, has become increasingly popular among groups that typically lean Republican – namely, older and rural voters.
Yet some Republicans in power still perceive it as a detriment to their cause, rather than a neutral or even positive force. They are the ones waging the war on vote-by-mail in an effort to suppress turnout in November.
How they are doing it requires some context.
Before this year, most states already had “no-excuse” absentee voting, meaning voters could request a mail-in ballot without needing a reason. Only 16 states still required one.
Typically, voters had to be away on Election Day or have an illness or disability to vote by mail; additional exceptions varied by state.
This year, the big question is whether one’s fear of catching COVID-19 should make them eligible for an absentee ballot. Those who argue it should stress that vulnerable Americans should not be forced to vote in person at extreme risk to their health. Therefore, the pandemic has prompted most excuse-requiring states to relax their restrictions and expand the mail-in option to all voters – at least on the surface. Courtroom roguery, however, has sought to chip away at such a prospect.
Order in the Court
Let’s look at Texas, where state leaders have remained especially stubborn.
In May, Texas Attorney General Ken Paxton argued before the Texas Supreme Court that fear of COVID-19 did not sufficiently qualify a voter for an absentee ballot under the state’s definition of disability. The court agreed.
However, the court also said that the state cannot deny absentee ballots to voters who say otherwise. In other words, Texans can decide for themselves whether they qualify for an absentee ballot.
This was, in some sense, a setback for Paxton and Texas’ other Republican leaders: Governor Greg Abbott and Secretary of State Ruth Hughs – but the trio rallied in a separate case that same month. When US District Judge Fred Biery tried to expand the mail-in option to all voters via an injunction, they immediately and successfully appealed in federal court. Texas, the US Supreme Court ruled, cannot be forced to expand mail-in voting to all of its voters.
That second ruling gave Republican leaders some breathing room to distract from the fact that the first one created a major loophole in their efforts to limit voting by mail. According to Travis County Clerk Dana DeBeauvoir, they are still dishonestly pushing for in-person voting in an attempt to restrict turnout this November.
“They tried to say we weren’t gonna let voters vote by mail when that’s not what the Texas Supreme Court said… I’m surprised there’s not a contempt of court,” DeBeauvoir told The Globe Post.
To the extent that Texans remain unaware of their ability to vote by mail, and insofar as that deters them from voting at all, people like Paxton, Abbott, and Hughs will have succeeded in their efforts to suppress the vote.
A similar battle has been brewing in nearby Tennessee. When a Nashville judge determined that COVID-19 was good enough reason to request an absentee ballot, the state appealed all the way to the Tennessee Supreme Court. In the meantime, it explicitly instructed local election officials not to send out absentee ballots to those who cited COVID-19 as concern – directly violating the Nashville ruling.
In some instances, the issue is not the expansion of voting by mail but its execution – less sinister and no less alarming. Missouri Governor Mike Parson recently signed legislation that allows all voters to vote absentee, including those vulnerable to COVID-19, but requires absentee voters to get a notary.
North Carolina, similarly, passed bipartisan legislation requiring mail-in voters to have a witness sign their ballots – in the middle of a pandemic. These are additional barriers which contravene the urgency of a safe and smooth general election.
As does the slow starvation of perhaps the most critical mechanism of all: the post office. The financial plight of the United States Postal Service (USPS) is nothing new but never more concerning. President Donald Trump’s administration and some Congressional Republicans are currently denying the USPS the emergency funding it will need to brave the tsunami of mail-in ballots soon to crash on its doorstep.
The chain of events is maddeningly predictable: voters may stay home, election results may be delayed, and the ensuing uncertainty will foment whispers, then cries, of an illegitimate process.
Indeed, the foundation for such accusations is already forming. Those who are waging the war on vote-by-mail must justify it beyond mere partisanship, and so they have recruited a boogeyman to fire blanks from behind enemy lines.
The Red Herring
Fox News said it best way back in 2012:
“What is going on here is that the GOP is yelling ‘Fire’ when there is no fire. Their goal is to reduce the number of Democrats casting ballots in the November election. The GOP has created a fictional controversy about voter fraud to hide the reality of efforts to suppress likely Democratic voters.”
Study after study has reiterated the simple truth that voter fraud in America is somewhere between extremely rare and nonexistent. It is so elusive that the Brennan Center for Justice determined that one is more likely to be struck by lightning than to commit voter fraud. And transitioning to an all-mail election will almost certainly not make voter fraud any less rare than it already is.
But an argument debunked is not an argument defeated, and partisans continue to cite voter fraud as the reason why expanding mail-in voting in particular is an untenable approach.
“I feel expanding [mail-in voting] would be detrimental to the security of our elections,” claimed Louisiana State Representative Dodie Horton after a party-line vote on the state’s House panel shot down the idea.
Mississippi Secretary of State Michael Watson was more blunt: “Don’t like it, don’t support it.”
No one has inflated the threat of voter fraud more than President Trump himself, who has warned, among other things, that a mail-in election would be tarnished by millions of foreign votes.
This has created an awkward situation for the many Republican leaders who endorse vote-by-mail. Three-quarters of Trump supporters now see vote-by-mail as “vulnerable to fraud,” meaning state officials must tiptoe around terminology in an effort to preserve credibility with their own voters. Instead of “vote-by-mail,” they must refer to less politically-charged “absentee ballots.” The two are virtually the same thing, but Trump has poisoned the former by suggesting otherwise.
Efforts to limit mail-in voting are glossed over with rhetoric painting a valorous (and ironic) defense of democracy. Were they not beset by the facts, the window dressing would perhaps work. But voter fraud remains rare, and the coronavirus increasingly less so.
Even a forced in-person election might not mitigate the prospect of a landslide result. In hard-hit Texas, Travis County Clerk DeBeauvoir and Harris County Clerk Chris Hollins, who oversees the third most populous county in the country, are both anticipating their largest turnouts ever.
Record numbers of polling places will be open so as to avoid long lines. Each will adopt strict safety measures. And while most of the vote is expected to come in the mail, DeBeauvoir and Hollins say that the traditional process is as safe as possible.
In an interview with The Globe Post, Hollins explained succinctly:
“This is a unique time… People across America, and certainly in Harris County, are yearning for their voices to be heard.”
Perhaps those who seek to suppress the vote understand the potential futility of their efforts. But such efforts, in their minds, at least afford them a tangible advantage. To the rest of us, they offer a history lesson.
Braving the Rainstorm
Voter suppression is nothing new and hardly distant. The war on vote-by-mail only emphasizes its rejuvenation in the past decade, traceable to one landmark court decision.
In 2013, the Supreme Court ruled in Shelby County versus Holder that states could bypass the need for “pre-clearance” – permission from the federal Justice Department to change any voting or election procedures.
Shelby struck down the part of the 1965 Voting Rights Act which allowed the federal government to keep a close eye on states with a history of voter discrimination. According to the majority opinion, states had proven they could be trusted not to target minority voters.
In her dissent, Associate Justice Ruth Bader Ginsburg retorted that removing the need for pre-clearance was “like throwing away your umbrella in a rainstorm because you are not getting wet.”
Within hours of the Shelby ruling, Texas began flaunting its independence by implementing Senate Bill 14, an infamously strict voter ID law. Other states followed with ID laws of their own. Jurisdictions originally restrained by pre-clearance began purging voters from the rolls at a rate 40 percent higher than those that were never under supervision. More restrictions followed.
Notably, but unsurprisingly, these laws are often struck down for their discriminatory effects on African-American, Latino, and Native American voters. Others, however, survive. And according to constitutional law historian Lawrence Goldstone, they all continue a tradition of voter suppression that traces back to the Civil War.
Goldstone is the author of On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights. Much of his research focuses on how white supremacists kept black Americans in a state of legal subordination even after they were freed from slavery.
In particular, they passed laws specifically designed to exclude “freedmen” from the voting process.
“Southern states realized that all they needed to do was avoid announcing that a different standard existed for whites and blacks,” Goldstone told The Globe Post.
“They took to writing seemingly race-neutral laws and state constitutions in which there would be provisions that would apply either exclusively or overwhelmingly to blacks.”
The Fourteenth Amendment says that states cannot deny their residents the equal protection of the laws. But Goldstone says that while “open discrimination” was considered a violation of the amendment, “de facto discrimination” was not.
By using a “strict, but ultimately convenient interpretation of language,” courts could cast aside accusations of deliberate discrimination. In other words, as long as states did not mention race, they could plausibly deny that their intentions were racist. Black voters were all but explicitly targeted as a result.
The aftermath of the Shelby ruling has demonstrated that “de facto discrimination” is not behind us. If it was, our voting laws would reflect compassion in their consequences – and perhaps hold up better in court. As the Atlantic wrote in 2016, “Jim Crow did not retire: He went to law school and launched a second career. Meet James Crow, Esquire.”
It is tempting to leave Mr. Crow to his own devices during a pandemic which has buried normalcy, crippled economies, and claimed hundreds of thousands of lives. He certainly appears a back-burner priority at the moment.
But voter suppression is the unsung virus of 2020. It’s in Texas. It’s in Tennessee. It’s being encouraged by the White House. It has infected our elections in three different centuries, and it spreads most when it goes unnoticed.