Voter Suppression as Core Political Strategy in American Politics and How to Remedy It

We are quite familiar with the classic cases of voter suppression in this country going back to the post-Reconstruction south and the infamous Jim Crow laws that spawned from it in the late nineteenth and early twentieth centuries, remaining in effect until the Ratification of the 24th Amendment in 1964 banning poll taxes and the enactment of the Voters’ Rights Act of 1965. From there, the assumption of many was that voter suppression would no longer be tolerated in this nation. While we all knew it would take time for these changes to sink in, the assumption was that these actions had essentially eradicated the tradition of voter suppression as a core political strategy, apart from the occasional struggles against gerrymandering.

As it turns out, the assumption of many was false; voter suppression in a variety of forms has never disappeared as a political strategy, even as one that could be practiced unabashedly, albeit sometimes with a wink. In recent times, this nefarious trend has been greatly bolstered by the one-two punch of two Supreme Court Decisions: Citizens United vs. the Federal Elections Commission (2010) and Shelby County (Alabama) vs Holder (2014). The first decision allowed into the political arena new types of spenders not required to disclose their expenditures and thus allowed to remain anonymous, shielding them from any political flak that might act as a check against their economic interference in the political process. The justices who voted in the majority in this case adjudicated on the fatuous assumption that the new spending it was opening up would remain transparent and could not reasonably be expected to be corrupt.

The Shelby County case greatly weakened the Voters” Rights Act of 1965 by invalidating the focus of its enforcement, which had placed the onus on voting jurisdictions historically engaged in voter suppression to justify to the federal government any changes they make in voting procedures. The rationale of the majority in invalidating this clause of the Act was that the identification of these offending districts was based on obsolete evidence.

In the years since these landmark decisions were made, it has become clear that the new flow of dark money created by the Citizens United decision has been largely invested in the myriad of new opportunities to suppress votes opened up by the Shelby County decision. These investments have not only gone to fund a continuous flow of court cases aimed at legitimizing a variety of changes to voting in various states that would result in a restriction of the voting franchise to targeted demographic categories, particularly African Americans, known to disfavor Republican candidates; but also to fund mass mailings to minority neighborhoods of incorrect voter information, the enlistment through a web of conservative non-government organizations of “election monitors” to certain polling places, and billboard campaigns in minority neighborhoods warning of the severe punishment meted out for voter fraud. The calculated effect was that such billboards would scare away a portion of would-be black voters on the fear that going to the polls carried the risk of false imprisonment and possibly conviction.

In fact, the Shelby County decision was a sort of repeat of the Civil Rights Repeal Act of 1894, which paved the way for the Jim Crow era of voter suppression . What the Repeal Act of 1894 repealed was not the 15th Amendment itself, which guaranteed the right to vote of non-whites and former slaves, but the Enforcement Acts of 1870 and 1871, which had paved the way for the Reconstruction. These Acts had authorized the federal government to punish violations of the 15th Amendment, enumerating punishments including disqualification from public office; prohibited judges from cooperating with voter suppression schemes; authorized federal oversight of elections on the petition of two citizens; and authorized the use of federal military invention to guard against voter suppression.

In repealing the federal authority to punish and prevent voter suppression, the 15th Amendment became a moot point. While in the 1880 presidential election (Garfield vs Hancock) the majority of eligible African Americans had cast their vote, by the mid-1890’s only 9000 of Mississippi’s 147,000 eligible black voters were registered to vote, with Louisiana later counting 1342 black voters in 1904, down from a high of more than 130,000 in the previous decade.

So it wasn’t the withdrawal of federal troops in 1877, but the gutting of authority to enforce Constitutional law that led to the disenfranchisement of blacks in the Jim Crow era. We are now seeing a repeat of the process, spearheaded this time not by Congress, but by the judiciary.

It is no secret what the modern methods of voter suppression are, and the attempts to mask them are disingenuous to the extent that no one except for the most deceived and least informed can take them seriously. Apart from gerrymandering, whose ultimate remedy will eventually reside in mathematical formulae of equitability and whose practice is limited to census years, the methods of voter suppression currently in use are: instituting voter identification - particularly photo ID’s – and residency requirements the compliance with which are disproportionately onerous to the poor; mass mailings of false voting instructions, reduction of opportunities for early voting, targeted closings of voting locations, anti-voter-fraud campaigns designed to intimidate black and immigrant voters by fear of false imprisonment, and most recently, time limits imposed on the counting of votes already cast. I think it is fair to say that this last tactic was utilized in U.S. presidential election of 2000 by the state of Florida, with the complicity of the Supreme Court of the United States, to secure victory for George W. Bush, brother of Jeb Bush, then governor of Florida. It is been established that had we taken the time to accurately recount all the votes cast in Florida, Al Gore would have won.

That voter-fraud scare tactics are nothing more than a flimsy pretext for suppressing votes is demonstrated by the fact that actual cases of voter fraud in this country are exceedingly rare. In Iowa in 2016, the year before new anti-voter-fraud voter ID legislation was passed there, there had been only 10 allegations of voter fraud in the entire state, with only one case, a Republican, substantiated. Compare that to the more than quarter-million voters whose right to vote was threatened by the new legislation.

It is no doubt than these efforts at voter suppression are amply funded by the dark money that the Citizen’s United decision first made legal in this country. Journalist Amadou Diallou reported in 2016 (Aljazeera America, February 12) that the following funnels of dark money have been consistently dedicated to voter suppression: Project on Fair Representation, True the Vote, Project Liberty, Inc., Linde and Harry Bradley Foundation, Knowledge and Progress Fund, Donors Trust, Charles and David Koch, and Americans for Prosperity. The projects funded by these include “false info on voter mailings,”, “voter ID laws & cuts in early voting”, “poll monitors in black and Latino neighborhoods”, and “voter fraud billboards in minority neighborhoods” (Diallou). These represent a network of agencies that move money around between one another as needed to support their political agenda. Donors Trust reportedly has donated more than $740 million to the cause. It has been accused of “repeatedly participating in voter suppression schemes” (Diallou).

One figure to examine in particular is Kris Kobach, Kansas Secretary of State from 2011-2019, whose crass attempts to push through aggressive anti-immigrant voting measures in his own state and others – he succeeded in Alabama in 2011 with a proof-of-citizenship statute which was the subject of the Shelby County decision, enacted the day after the SCOTUS decision was given - have been repeatedly denied even by conservative-appointed judges, most famously in 2016 (Fish vs. Kobach) by U.S. district Judge Julie A. Robinson, who had been appointed by George W. Bush. In reward for his efforts – mostly failed – he soon thereafter was named head of President Trump’s newly created Presidential Advisory Committee on Election Integrity. I will leave it to the reader to surmise the true purpose of this committee.

The lesson is clear: federal laws against voter suppression are ineffective without federal laws authorizing their enforcement. Voter suppression is a core political strategy for those who can’t get elected without it, and they will do it, unabashedly, if necessary, as long as they can get away with it. The track record of the Enforcement Acts of 1870 and 1871 was good, as they supported the effective voter participation of blacks in the south until their repeal in the 1890’s. For this reason, there is no reason to despair that voter suppression is inevitable. We don’t need to reinvent the wheel; but just put it back on the wagon. Voter’s rights can be effectively protected if we allow the enforcement of the laws that protect them.

A weak point of the Voters’ Rights Act of 1965 is that it was written as a temporary remedial legislation that would only apply to certain jurisdictions based in part on their negative past records. As such, it puts the onus on Congress to periodically update and renew it, and to adjust its scope to new jurisdictions if necessary. But as we see now, voter suppression is an endemic problem liable to appear in any state; as such, the enforcement legislation we need should be permanent in nature and apply equally to all states, without a need for the federal government to always meet the onus of proving malicious intent in each case. Voter suppression is not a subtle matter, and it is a constant threat everywhere. Legislation more like the original Enforcement Acts of 1870 and 1871 is what we will need to solve this problem.