History of Voter Suppression

WP: History of Voter Suppression


Table of Contents

15th Amendment and the Failure of Reconstruction

Voter Rights Act and Modern Voter Suppression

Gutting of the Voting Rights Act

Gerrymandering

Unfair Representation

Voting Resources


15th Amendment and the Failure of Reconstruction

  • The 15th Amendment (1870)
    • Granted black men the right to vote
  • Failure of Reconstruction and the return of white supremacy (1865 to 1877)
    • After the Civil War the gov initiated the Reconstruction Era attempting to protect newly freed black civil rights, including the right to vote.  With the protection of the military, black people and white allies won many offices in the South.  By 1870 black people held over 2000 political offices (over 15% of Southern offices).
    • By the late 1870s Reconstruction lost its support and the military was recalled, paving the way for white spread voter suppression, civil rights abuse, and the return of white supremacy to the South, removing all black political gains.
    • Despite the 15th amendment, discriminatory practices were used to prevent Black people from exercising their right to vote, especially in the South.
    • These practices included:
    • In the 1890s there were some 100,000 African-American voters in Texas
      • By 1906 that number had fallen to fewer than 5,000
    • “In 1940, 77 percent of black Americans still lived in the South, where they made up 24 percent of the population but only 3.5 percent of registered voters. The white-controlled Democratic Party made white supremacy a central platform, excluded black members as a matter of policy,  and dominated state politics throughout the region.” EJI

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History Net: The Roots of Voter Fraud in America

“Electoral disputes stretch back to the nation’s creation. Widespread voter suppression, however, has a particularly ugly history, dating to the aftermath of the Civil War, when authorities in the former Confederacy physically barred, intimidated, or procedurally precluded newly freed slaves from voting. In 1865, the federal government enacted Reconstruction, a series of measures to reunite the republic while combating efforts to resurrect white supremacy. Federal troops oversaw the reestablishment of state governments, and many former Confederates were temporarily barred from voting or holding elected office. Freed blacks and newly arrived Northerners took over state and local government, and soon blacks held many elected positions in state and national government. By 1877, support for Reconstruction was weak, and a compromise ensuring the election of Republican Rutherford B. Hayes as president over Democrat Samuel Tilden ended Reconstruction. President Hayes ordered any federal troops remaining in the South to return to their barracks. White Southerners then seized the opportunity to reestablish the antebellum social order.

But freed blacks, who constituted majorities in many jurisdictions across the South, had a tool denied slaves: the vote. To reassert power, white supremacists had to neutralize black voters, who leaned Republican in the tradition of Abraham Lincoln. Retaking offices ranging from seats in Congress to sheriff, white Democrats worked to suppress the black vote, sometimes by administrative feint, often by fear and violence. African-Americans sticking with the GOP saw their crops, barns, and houses burned. Many were whipped or lynched. By one estimate, 150 African-Americans were killed during the 1876 South Carolina gubernatorial campaign alone. After federal troops departed the South, the region’s election managers—the officials responsible for keeping elections fair and accurate—were likely to be white Democrats willing to use any means necessary to keep blacks away from the ballot box. Paramilitary groups of armed white men known as “Red Shirts” patrolled polls, supposedly to ensure fairness but in reality to intimidate blacks”

Wikipedia: Disenfranchisement after the Reconstruction Era

Disenfranchisement after the Reconstruction Era[1] in the United States of America was based on a series of laws, new constitutions, and practices in the South that were deliberately used to prevent black citizens from registering to vote and voting. These measures were enacted by the former Confederate states at the turn of the 20th century, and by Oklahoma when it gained statehood in 1907,[2] although not by the former border slave states. Their actions were designed to frustrate the objective of the Fifteenth Amendment to the United States Constitution, ratified in 1870, which sought to protect the suffrage of freedmen after the American Civil War.

During the later elections of Reconstruction era, beginning in the 1870s, white Democrats used violence by paramilitary groups, as well as fraud, to suppress black Republican voters and turn Republicans out of office. After regaining control of the state legislatures, Democrats were alarmed by a late 19th-century alliance between Republicans and Populists that cost them some elections. After achieving control of state legislatures, white Democrats added to previous efforts and achieved widespread disenfranchisement by law: from 1890 to 1908, Southern state legislatures passed new constitutions, constitutional amendments, and laws that made voter registration and voting more difficult, especially when administered by white staff in a discriminatory way. They succeeded in disenfranchising most of the black citizens, as well as many poor whites in the South, and voter rolls dropped dramatically in each state. The Republican Party was nearly eliminated in the region for decades, and the Democrats established one-party control throughout the southern states.[3]

In 1912, the Republican Party was split when Roosevelt ran against the party regular, Taft. In the South by this time, the Republican Party had been hollowed out by the disenfranchisement of African Americans, who were largely excluded from voting. Democrat Woodrow Wilson was elected as the first southern President since 1856. He was re-elected in 1916, in a much closer presidential contest. During his first term, Wilson satisfied the request of Southerners in his cabinet and instituted overt racial segregation throughout federal government workplaces, as well as racial discrimination in hiring.[4] During World War I, American military forces were segregated, with black soldiers poorly trained and equipped.

Disenfranchisement had far-reaching effects in Congress, where the Democratic Solid South enjoyed “about 25 extra seats in Congress for each decade between 1903 and 1953.”[nb 1][5] Also, the Democratic dominance in the South meant that southern Senators and Representatives became entrenched in Congress. They favored seniority privileges in Congress, which became the standard by 1920, and Southerners controlled chairmanships of important committees, as well as leadership of the national Democratic Party.[5] During the Great Depression, legislation establishing numerous national social programs were passed without the representation of African Americans, leading to gaps in program coverage and discrimination against them in operations. In addition, because black Southerners were not listed on local voter rolls, they were automatically excluded from serving in local courts. Juries were all white across the South.

Political disenfranchisement did not end until after passage of the Voting Rights Act of 1965, which authorized the federal government to monitor voter registration practices and elections where populations were historically underrepresented, and to enforce constitutional voting rights. The challenge to voting rights has continued into the 21st century, as shown by numerous court cases in 2016 alone, though attempts to restrict voting rights for political advantage have not been confined to the Southern states. Another method of seeking political advantage through the voting system is the gerrymandering of electoral boundaries, as was the case of North Carolina, which in January 2018 was declared by a federal court to be unconstitutional.[6] Such cases are expected to reach the Supreme Court.[7]

Brennan Center for Justice: Racism & Felony Disenfranchisement: An Intertwined History

The End of the Civil War: An Increasingly Racist Criminal Justice System

By the end of the Civil War, states were already incarcerating African Americans at a higher rate than whites. This disparity significantly worsened in the ensuing years, a fact well-documented in the South.

Although outlawing slavery itself, the Thirteenth Amendment carved out an exception allowing states to impose involuntary servitude on those who were convicted of crimes. Seeing an opportunity to sustain their crumbling economy, numerous Southern politicians quickly implemented new criminal laws that were “essentially intended to criminalize black life,” wrote Pulitzer Prize-winning author Douglas Blackmon.  These ostensibly race-neutral laws were selectively enforced by a nearly all-white criminal justice system.  While white people accused of crimes often escaped punishment, black people were arrested and convicted “almost always under the thinnest chimera of probable cause or judicial process,” as Blackmon put it.

Identifying these new criminal laws as “Black Codes,” historian Eric Foner describes how they bolstered the South’s faltering economy by providing employers “with a supply of cheap labor” through convict leasing. This system was reserved nearly entirely for black prisoners — at least 90 percent of those forced into convict leasingarrangements were black.  Because convict leasing generated significant profits for states, law enforcement officials, and companies alike, the practice incentivized baseless arrests and convictions of black citizens.

These factors and others spurred widening disparities in incarceration rates. In Alabama, for example, the percentage of nonwhite prisoners jumped from 2 percent in 1850, to 74 percent by 1870.

A First Wave of Backlash to Voting Rights Expansion: Broad Felony Disenfranchisement Laws

Within the context of an increasingly discriminatory criminal justice system, states became “particularly likely to pass punitive felon disenfranchisement laws” in the 15 years after the Civil War — just as black men gained voting rights nationwide.

Before the Civil War, most states already had some form of disenfranchisement on the books, but these new laws were significantly broader, imposing disenfranchisement as a consequence for all felonies, rather than only a few select crimes.  In rapid succession between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws.

These new laws were closely linked to the rising inequalities in the nation’s criminal justice system. A historical analysis by authors Jeff Manza and Christopher Uggen found “[w]hen African Americans [made] up a larger proportion of a state’s prison population, that state [was] significantly more likely to adopt or extend felon disenfranchisement.” In later decades, the reverse would hold true, as “[s]tates with a small proportion of African-American prisoners [were] most likely to abolish ex-felon voting restrictions.”

The motivation for enacting broad felony disenfranchisement laws in this context was clear: preventing newly enfranchised black citizens from exercising political power. “Felon disenfranchisement provisions offered a tangible response to the threat of new African-American voters that would help preserve existing racial hierarchies,” the authors of a study published in the American Journal of Sociology wrote.

New York is a clear example of the way in which states expanded the franchise while simultaneously using felony disenfranchisement to restrict its reach. By 1860, New York was the only state that required property ownership for black voters — and black voters only.  This law clearly violated the Fifteenth Amendment, which prohibited voting restrictions based on race and which New York ratified in 1870.  In 1874, a governor-appointed “Constitutional Commission” finally struck down the property law, but in the same stroke quietly amended New York’s constitution to impose felony disenfranchisement.

Once these broad disenfranchisement laws were on the books, racist politicians could also enforce them in a deliberately discriminatory manner. For example, in 1876 Virginia broadened its felony disenfranchisement law to encompass petty theft, or “petit larceny,” a crime of which white politicians believed black citizens could be easily convicted. The next year, the legislature passed a law requiring that lists of voters convicted of any of the new, broader array of disenfranchising crimes be delivered to county registrars. Applied “almost exclusively to the detriment of African American voters,” the law facilitated racist politicians’ attempts to selectively enforce disenfranchisement. “We publish elsewhere a list of negroes convicted of petit larceny,” a Richmond-based newspaper advertised several years later, advising that “Democratic challengers should examine it carefully.”

A Second Wave of Backlash to Voting Rights Expansion: Targeted Disenfranchisement Laws

A distinct wave of changes to disenfranchisement laws began in the last decade of the 1800’s, when Southern states began holding overtly racist constitutional conventions in response to partisan shifts in Congress and the growing threat of a Populist movement that was uniting white farmers and black political forces.

Mississippi’s new disenfranchisement law, adopted at its constitutional convention in 1890, served as a model for other states. Before, conviction for “any crime” disqualified an individual from voting. But at the convention, Mississippi’s white politicians narrowed disenfranchisement to a specific list of crimes they believed black men were most likely to commit, such as bigamy, forgery, burglary, arson, and perjury. Upholding this new disenfranchisement scheme six years later, the Mississippi Supreme Court acknowledged the racist motivations for the change:

Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker member were prone….Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications [from voting], while robbery and murders, and other crimes in which violence was the principal ingredient, were not.

Other states soon followed with their own racially targeted disenfranchisement laws, including South Carolina in 1895, Louisiana in 1898, and Alabama in 1901.

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Voter Rights Act and Modern Voter Suppression

  • Voting Rights Act (1965)
    • Outlawed voter suppression
      • Banned literacy tests, poll taxes, and provided for federal oversight for states with a history of voter suppression
      • By 1968 black voter registration in the South had increased by 1.3 million people
        • Between 1964-1969 the black registration rates soared
          • Alabama, 19.3% to 61.3%
          • Georgia, 27.4% to 60.4%
          • Louisiana, 31.6% to 60.8%
          • Mississippi, 6.7% to 66.5%
  • Modern voter suppression
    • As the South gained more than a million black voters, segregationists:
      • Suppressed the black vote with more sophisticated ways
      • Created the voter fraud myth as justification for modern suppression
      • Traded “segregationist” for “conservatives”

Equal Justice Initiative: Segregation in America

HOW SEGREGATION SURVIVED

“The Voting Rights Act “literally changed the face of southern politics” by bringing widespread enfranchisement to black communities for the first time since Reconstruction. 542 Just three years after the law passed, black voter registration in the South had increased by 1.3 million people. The greatest changes were in the states most targeted by the new law. In Mississippi, 60 percent of eligible black voters were registered in 1968, up from just 7 percent in 1965…To stay in power as the South gained more than a million black voters, segregationists needed to suppress the black vote, so they began calling themselves “conservatives” and added more sophisticated tools to their repressive repertoire.One tool was the voter fraud allegation, wielded in 1985 by then-United States Attorney Jeff Sessions against black voting rights activists in Alabama. Sessions targeted only black defendants, including civil rights icon Albert Turner, a former aid to Martin Luther King Jr. who was beaten in Selma on Bloody Sunday.”

Modern Voter Suppression Tactics

  • Voter Fraud Myth
    • The “voter fraud” narrative has been used by conservatives since the Voter Rights Act as a popular pretext for voter suppression strategies
    • The Brennan Center’s seminal report on this issue, The Truth About Voter Fraud, found:
      • Most reported incidents of voter fraud are actually traceable to other sources, such as clerical errors or bad data matching practices.
      • The report found incident rates between 0.0003% and 0.0025%
        • A review of the 2016 election found 135 million voted and only 4 cases of voter fraud
        • It is more likely that an American “will be struck by lightning than that he will impersonate another voter at the polls.”
  • Voter ID Laws
    • IDs required for registration and/or voting
    • 34 states require
    • Democratic-leaning voters (Black, Hispanic, students, elderly, disabled) less likely to possess a valid government-issued ID
      • Barriers for IDs: financial, accessibility, transportation, language, name change documentation, etc
      • Native Americans on reservations often don’t have street addresses required for voter IDs
    • More than 10% of U.S. citizens lack such identification
      • 18% of young voters lack ID, 25% of African-Americans lack ID
    • Wisconsin ID restrictions
      • 300,000 didn’t have an ID (mostly Democratic voters of color), Trump won by 22,000 votes

Screen Shot 2019-06-17 at 2.42.13 PM.pngPhoto credit” Carol Anderson – “One Person, No Vote” & The Impact of Voter Suppression – Extended Interview – The Daily Show with Trevor Noah (Video Clip)

  • Aggressive Voter Purges and Voter Caging
    • The National Voter Registration Act (1993)
      • Voters can be purged only if they ask, move, convicted of a felony, mentally incapacitated, or die.
    • Voter caging
      • Sending mail to addresses on voter rolls and purging any voter whose mail is returned
        • On the ground that they do not legally reside at their registered addresses
      • Ohio purges voters after missing one election and not responding to a mailed notice
        • Over the past five years, Ohio has purged two million voters from the voting rolls.
        • Trump won Ohio by about 447,000 votes.
      • Brennan Centre for Justice 2018 report, Purges: A Growing Threat to the Right to Vote, found
        • 9 southern states, all listed under Section 5, we’re found purging voters more aggressively than other states
      • Kansas Secretary of State Kris Kobach’s Interstate Crosscheck
        • Database aggregating voter registration records from multiple states to identify duplicate voter registrations
          • The program is currently under fire for its inaccuracy, poor data security, and potential for racial bias

Project Vote: Voter Purges

“Under the Help America Vote Act (HAVA), states are tasked with maintaining current and accurate voter registration databases. However, the lack of clear and uniform standards for list maintenance has resulted in inconsistent standards from state to state, and poorly developed “voter purge” programs have often led to the mass disenfranchisement of eligible voters. Frequently, such ill-conceived purge programs have had a disproportionate impact on minority populations.

The removal of voters from the rolls needs to be undertaken with the greatest of care, and in complete compliance with the standards established by federal law, including the National Voter Registration Act (NVRA), which contains a number of procedural protections to protect eligible voters from wrongful removals.”

In the 2016 election voting rights advocates in North Carolina filed an emergency petition in federal court alleging that at least three counties in the state have engaged in a systematic effort to purge voters, including a disproportionate number of African Americans, from the voter rolls in the final weeks before the election.  Due to the evidence presented the Federal Judge ordered North Carolina to restore the purged voter registrations.”

Interstate Voter Registration Crosscheck Program

  • Eliminating same day registration, reducing early voting, and closing poll stations
    • Since the Supreme Court struck down Section 5
      • Southern states, from Arizona to North Carolina, have closed down at least 868 polling places
      • Many states like NC and Ohio eliminated same-day registration and reduced the early voting period
    • These changes more likely to disenfranchised poorer minority voters
      • Who have more transportation barriers

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  • Felon Disenfranchisement
    • More than 6 million American citizens are unable to vote because of a past criminal conviction
    • These laws, rooted in our racial history, have a disproportionate impact on minorities
      • Designed after Civil War in a deliberate attempt to dilute the voting power of freed slaves
    • 1 in every 13 voting-age black American have lost right to vote
      • 4x the rate for all other Americans
    • State approaches to felon disenfranchisement vary tremendously
      • In Maine, Vermont, California felons never lose their right to vote, even while they are incarcerated
      • 38 states including DC most ex-felons automatically gain the right to vote upon the completion of their sentence
      • In Florida, Iowa and Virginia, felons and ex-felons permanently lose their right to vote
        • In Florida roughly 1.5 million Florida residents (2.5% of state’s population) disenfranchised
          • In 2016 one in four of Florida’s black residents could not cast a ballot.
          • Clinton lost Florida by just 119,770 votes

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A century ago, the commonwealth’s leaders weren’t circumspect about their motives
Last Friday, Virginia Governor Terry McAuliffe restored voting rights to more than 200,000 people with previous felony convictions. It’s a momentous stroke in both scope and effect; with an eye towards the 2016 races, The New York Times estimated its electoral impact as “small but potentially decisive.” But the significance of McAuliffe’s efforts goes far beyond a single election. It instead marks an exorcism for one of Jim Crow’s last vestiges in Virginia’s state charter—and a reminder of how many of its legal aftereffects still linger today.Many of Jim Crow’s most pernicious aspects were swept away in a Second Reconstruction of sorts during the civil-rights movement of the 1950s and 1960s. But those efforts had little effect on the criminal-justice system and its role in enforcing white supremacy, both in the South and beyond it. Disenfranchising people with criminal convictions was one of many vote-suppressing tools deployed in the state’s 1902 constitution, which was explicitly drafted and ratified to destroy black political power in the Old Dominion.The path to Virginia’s Jim Crow constitution began with its Reconstruction constitution. In 1868, delegates gathered to draft the state’s first constitution since the end of the Civil War. Led by John C. Underwood, a domineering federal judge and enthusiastic abolitionist, the convention produced a charter that guaranteed the vote to every 21-year-old male citizen, regardless of his race. (Convention delegates rejected Underwood’s efforts to include women’s suffrage, however.) Restrictions on the electorate were minimal. A set of clauses excluded only people convicted of corruption or treason, participants in duels, and “idiots and lunatics” from voting.
Virginians approved the “Underwood Constitution,” as it became known, by a wide margin in 1870. But their progress towards multiracial democracy only lasted a generation. Redeemer Democrats began to supplant Republican officeholders, both in Virginia and throughout the South, in the 1880s and 1890s. Once in office, they steadily repealed Reconstruction-era reforms and enacted Jim Crow laws aimed at suppressing black political power. Control of the Virginia General Assembly allowed them to pass restrictive election laws, but by 1900, those efforts culminated in an effort to eliminate the black franchise once and for all.“The safety and perpetuity of our free institutions depend upon the purity and inviolability of the ballot,” said John Goode, president of the 1902 constitutional convention and a former colonel in the Confederate Army. Threatening the ballot’s “purity” were black voters enfranchised during Reconstruction. By ratifying the Fifteenth Amendment to protect their right to vote, Goode argued, the Republican Party “not only committed a stupendous blunder, but a great crime against civilization and Christianity” against the South.“The negro had just emerged from a state of slavery. He had no education. He had no experience in the duties of citizenship. He had no capacity to participate in the functions of government,” he told the other delegates. “Under the circumstances existing at the period of reconstruction, the bestowal of universal suffrage upon the negro was a grievous wrong to both races.”The ideal solution, he argued, would be the repeal of the Fifteenth Amendment, a view shared by many of his contemporaries at the convention. Northern and Western states opposed such an effort, but Goode suggested the rest of the country might agree to it after the Civil War’s hatreds faded. “Until that auspicious day shall come, we must adapt ourselves to the conditions in which we are placed,” he declared.Black political suppression was neither an accident nor a mistake; it was the central purpose of the convention. Newspapers plainly reported it and politicians eagerly campaigned on it. “I told the people of my county before they sent me here that I intended, as far as in me lay, to disenfranchise every negro that I could disenfranchise under the Constitution of the United States, and as few white people as possible,” R.L. Gordon told his fellow delegates during the suffrage debates.That proved trickier than expected. Delegates faced two balancing acts when crafting the suffrage provisions. The first one was constitutional. The Fifteenth Amendment prohibited states from denying the vote to black Americans because of their race, and the delegates had to craft exclusionary measures that targeted black voters without explicitly referencing them, lest the U.S. Supreme Court intervene.

But the Court had already cleared a possible path for the delegate’s efforts. In 1890, Mississippi had enacted a constitution to eliminate the black franchise with literacy tests, poll taxes, and a grandfather clause. Those methods were challenged before the U.S. Supreme Court eight years later by Henry Williams, a black man convicted by an all-white jury, whose members were drawn from the state’s voting rolls.The Supreme Court unanimously upheld the conviction in Williams v. Mississippi, ruling that the provisions did not violate the Fourteenth Amendment’s equal-protection clause because they were written in a race-neutral manner. Mississippi’s suffrage requirements “reach weak and vicious white men as well as weak and vicious black men,” Justice Joseph McKenna wrote for the Court, “and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”Virginia’s delegates referenced the Williams decision throughout their debates. They were also well aware of the racial imbalances in the state’s criminal-justice system. Fears of black criminality suffused the argument against black enfranchisement. Gordon told the convention that in the South, six whites out of 10,000 were in prison compared to 29 blacks out of 10,000, “showing that since these people have been made free, instead of improving, the record of crime show that they are retrograding.”Previous Virginia constitutions also included language about disenfranchisement for criminal acts. The 1830 constitution limited it to “infamous crimes,” for example, while its 1851 successor drafted by reformers added bribery and the 1870 charter targeted treason and corruption. What set the 1902 constitution apart was the breadth of crimes it included. Drawing on language from other states’ constitutions, the convention approved a clause that disenfranchised Virginians convicted of numerous crimes, including “treason or of any felony, bribery, petit larceny, obtaining money or property under false pretenses, embezzlement, forgery, or perjury.”Overall, disenfranchising criminals was one of the less contentious debates at the convention. The delegates often argued instead about the second balancing act they faced: disenfranchising as many black voters as possible without disenfranchising large numbers of white voters as well. Many delegates had no problem with also excluding poor and illiterate white voters in large numbers, but enough of them raised concerns about it to drag out the debates.The final suffrage article once again limited the franchise to men 21 years of age and older. It imposed a poll tax, from which Civil War veterans were exempt. To weed out illiterate voters, it required prospective registrants to apply without assistance and in their own handwriting. And to grant local officials the latitude necessary to exclude any black Virginians who met the other requirements, it required voters to answer any questions posed to them by an election official.

Some delegates feared the provisions would exclude too many prospective white voters. But its drafter, future U.S. Senator and Treasury Secretary Carter Glass, claimed otherwise. The suffrage article “does not necessarily deprive a single white man of the ballot, but will inevitably cut from the existing electorate four-fifths of the negro voters,” he told his colleagues to applause. “That was the purpose of this convention; that will be its achievement.”“Will it not be done by fraud and discrimination?” another delegate asked.“By fraud, no; by discrimination, yes,” Glass replied. “But it will be discrimination within the letter of the law, and not in violation of the law.”Unlike its 1870 predecessor, no referendum on the Jim Crow constitution was held before it went into force. The effects were immediate and profound for black voters as well as white ones, despite Glass’s claims. In his book on Jim Crow’s effects in Virginia, the historian J. Douglas Smith summed up the new charter’s radical impact:

While 264,095 Virginians voted in the presidential election of 1900, only half that number, almost all of them white, bothered four years later. By the end of 1902, determined registrars and literacy tests had eliminated all but 21,000 of an estimated 147,000 blacks of voting age from the registration lists; three years later, the new poll tax cut that number in half. The electorate was so thoroughly eviscerated that throughout the first half of the twentieth century the Democratic Party regularly elected its gubernatorial candidates with the support of less than 10 percent of the adult population. From 1905 to 1948, state employees and officeholders accounted for one-third of the votes in state elections. So few Virginians voted in the first half of the twentieth century that political scientist V.O. Key quipped that “by contrast Mississippi is a hotbed of democracy.”

Change did not come until the civil-rights movement. By the late 1960s, Virginia had lost most of its disenfranchising tools to court decisions and federal legislation. The Supreme Court struck down grandfather clauses under the Fifteenth Amendment in 1915 and abolished state and local poll taxes in 1966. The Voting Rights Act of 1965 eliminated literacy tests and required Virginia and other states to seek approval from a federal court or the U.S. attorney general before implementing changes to its election laws. In 1972, Virginia enacted its current constitution, cutting the 35,000-word Jim Crow charter down to a more streamlined 18,000-word text. Many of the defunct measures to constrain black voting were erased along the way.

But the felon disenfranchisement provision remained and excluded hundreds of thousands of Virginians from the polls. 48 states have similar restrictions, although only a handful of them include lifetime bans. The Sentencing Project estimates that almost 6 million Americans can’t cast a ballot because of post-conviction restrictions imposed upon them.

Now, Virginia is rolling back more than a century of racial disenfranchisement conducted beneath the thinnest veneer of legitimacy. But similar provisions remain intact in many other states, where legislators were not always so explicit about their motives. And even with McAuliffe’s orders, the progress is tenuous. His successor could choose not to reinstate the rights of future ex-felons; Kentucky experienced a similar backslide last December. In North Carolina, meanwhile, a federal court recently upheld a sweeping set of voting-rights restrictions. As R.L. Gordon might have put it, instead of improving, the record of voting rights show that they are retrograding.
  • Misinformation Tactics
    • In 2008
      • Democrats in Nevada received robo-calls informing them that they could vote on November 5
        • A day after the election — to avoid long lines.
        • Hispanic voters in Nevada received similar messages saying that they could vote by phone
      • Voters in Lake County, Ohio, received official-looking mail stating
        • Voters registered through Democratic-leaning organizations would be barred from the 2008 election
      • Michigan had phone-based disinformation campaign telling absentee voters to mail ballots to wrong address
  • Intimidation
    • In the early 1980s RNC sponsored a group called National Ballot Security Task Force to patrol polling stations in search of voter fraud
      • Off-duty police officers armed with loaded service revolvers and wearing blue armbands
        • Was sued for steering black voters away from polling stations in New Jersey

NPR: ‘Your Body Being Used’: Where Prisoners Who Can’t Vote Fill Voting Districts

Robert Alexander has been away from home for more than a decade. His days and nights are spent locked up behind walls topped with barbed wire.

“Prison kind of gives you that feeling that you’re like on an island,” says Alexander, 39, who is studying for a bachelor’s degree in biblical studies while serving his third prison sentence.

Clad in an oversized gray sweatshirt under the fluorescent lights inside the visiting room of Wisconsin’s oldest state prison, he is more than 70 miles from his last address in Milwaukee.

“You don’t feel like a resident of anything,” he adds.

But if Alexander and his more than 1,200 fellow prisoners are still incarcerated at Waupun Correctional Institution next Census Day — April 1 — the Census Bureau will officially consider them residents of Waupun, Wis., for the 2020 national head count.

That’s because, since the first U.S. census in 1790, the federal government has included incarcerated people in the population counts of where they’re imprisoned. This technical detail of a little-known policy can have an outsized impact on prison towns across the U.S. for the next decade.

In many cases, rural, predominantly white towns see their population numbers boosted by population counts from prisons disproportionately made up of black and Latinx people.

In turn, states, which control how voting districts are drawn, and local governments can use those numbers to form districts filled predominantly with people who are locked behind bars and cannot vote in almost all states. Maine and Vermont are the exceptions.

Officials in some prison towns have come up with creative ways to avoid forming voting districts made up primarily of prisoners. But in many others, political lines are drawn around prisons in a way that critics deride as “prison gerrymandering.”

Split along partisan lines

A recent study about Pennsylvania’s state legislative districts by Villanova University associate professors highlights the impact this process can have on the political voice of incarcerated people’s home communities.

It found a “substantial likelihood” that Philadelphia would gain an additional majority-minority district for Pennsylvania’s state house if prisoners incarcerated in the state were counted as residents of their last known addresses.

“The incarcerated are not only missing from their communities,” the study’s authors, Brianna Remster and Rory Kramer, wrote, but “they are also advantaging other communities.”

Still, the issue of where to count prisoners for census numbers has been split largely along partisan lines. Most supporters who want to change the way incarcerated are counted are Democrats, while Republicans generally want to keep things the way they are.

In 2015, when the Census Bureau was collecting public comments about its rules for counting people in prisons, Thomas Hofeller — a prominent Republican redistricting strategist who died in 2018 — warned against adjusting prisoners’ numbers.

Hofeller expressed concern that “the actual effect on reapportionment and redistricting is not clearly known for individual states,” according to a document Hofeller’s daughter, Stephanie, provided to NPR that was copied from his hard drives.

“This change is being encouraged by Democratic or Liberal organizations and could involve the Census Bureau in yet another political conflict,” Hofeller wrote in the Microsoft Word document, first reported by The New Yorker.

What worked in 1790 “just doesn’t work anymore”

The following year, the bureau received another round of public comments on the issue. More than 99% of the close to 78,000 comments collected in 2016 “suggested that prisoners should be counted at their home or pre-incarceration address,” the bureau reported in a Federal Register notice.

The Census Bureau has said, however, it has no plans to change its policy for the 2020 count.

“Counting prisoners anywhere other than the facility would be less consistent with the concept of usual residence, since the majority of people in prisons live and sleep most of the time at the prison,” the bureau announced in 2018.

But some critics say that policy has become out-of-date since it was first implemented for the 1790 census.

“What has changed is just the massive scale of incarceration in the U.S. What worked for the country in 1790 just doesn’t work anymore in terms of data methodology,” says Aleks Kajstura, legal director of the Prison Policy Initiative, a research and advocacy group campaigning to change how incarcerated people are counted. “Even up until the 1970s, the incarcerated population was low enough that it did not impact redistricting when people were counted in the wrong place.”

Kajstura also points out that many prisoners are likely to be released or moved to another facility after they’re counted for the census. “This facility that they happen to be incarcerated on Census Day is in no way reflective of the reality of where they actually even live and sleep most of the time even by the Census Bureau’s own guidelines,” Kajstura says.

A piecemeal approach

With the bureau refusing to change its policy, state lawmakers, civil rights groups and other advocates have turned to a piecemeal approach to change how prisoner counts are used to redraw state and local voting districts by advancing legislation and fighting in court.

In May, Nevada and Washington joined California, Delaware, Maryland and New York in passing laws since 2010 requiring relocating prisoners’ numbers from where they’re incarcerated to their last known home addresses for redistricting.

After the 2020 census, the bureau is planning to help those states recalculate their counts in time for redistricting by releasing data about incarcerated people earlier than it did after the 2010 count.

In Connecticut, state officials are facing a lawsuit filed by the NAACP after they used 2010 census numbers counting prisoners where they’re imprisoned to redraw voting maps. The country’s oldest civil rights organization is arguing in court that the state’s redistricting plan has inflated the voting strength of districts of predominantly white voters and violated the 14th Amendment’s “one person, one vote” principle, which requires districts to have about the same number of people in them.

“There’s no comment”

In Wisconsin — where around 1 in 8 black men age 64 and younger, is behind bars, the highest incarceration rate for black men in the country — Democratic state lawmakers introduced a bill in September that would relocate prisoner numbers for redistricting.

If it becomes a law by the time Wisconsin’s political maps have to be redrawn after the upcoming census, a major shift in local political representation may be coming to prison towns such as Waupun.

In this rural, predominantly white town located northwest of Milwaukee, around 1 in 4 people is incarcerated. It is home to three state prisons, including the facility where every adult male prisoner sentenced to Wisconsin’s prison system is processed, Dodge Correctional Institution.

Together, the three facilities in Waupun house more than 3,000 incarcerated people convicted of a felony, who cannot vote while behind bars. These prisoners make up the majorities in two of the town’s voting districts represented by alderpeople on the town’s common council.

According to Waupun’s official website, alderpeople rely on “input from residents” to “ensure a citizen-centered process” when they’re making decisions on behalf of the town.

But the elected officials of Waupun’s two majority-prisoner districts told NPR that they have never visited the prisons in the areas they represent.

“There’s no reason to communicate on property I don’t have access to,” Alderperson Ryan Mielke, who was reelected this year with 43 votes to represent District 3 — where about 61% of his constituents are incarcerated and cannot vote, according to the Prison Policy Initiative’s analysis.

Asked whether he ever wanted to know how many people are in the prison he represents, Mielke replied: “There’s no comment.”

A spokesperson for Wisconsin Department of Corrections told NPR that elected officials are welcome to visit its facilities. “We have state senators and representatives come through a number of our institutions pretty regularly,” said spokesperson Clare Hendricks. “We’re welcome to it.”

“Almost like your body being used”

Alderperson Peter Kaczmarski represents District 2, where prisoners at Waupun Correctional Institution — a maximum security prison that houses people convicted of violent crimes — make up about 76% of his constituents. Compared with other constituents in his district, Kaczmarski says representing constituents who are behind bars is very different.

“You almost have to think for them because you don’t, perhaps, have that day-to-day interaction,” said Kaczmarski, who lives down the street from Waupun Correctional.

Robert Alexander — who is serving time in Waupun, about an hour-and-a-half drive away from where he was living in Milwaukee — and the three other prisoners NPR interviewed at the facility said they were not previously aware that Kaczmarski was elected to represent them.

“There’s no way that he can say what we feel unless he decides to come in and talk to us,” he said.

It doesn’t sit well with Alexander that he can be counted for political representation in a place he doesn’t consider his residence.

“It’s almost like your body being used,” Alexander said.

An uneasy relationship has been playing out in Waupun as the town’s officials try to keep its prisons in the background and attract more tourists and business developers with a rebranding effort featuring taglines such as “Naturally Adventurous.”

The three prisons have been a main driver of Waupun’s economy for decades. But Kathy Schlieve, Waupun’s city administrator, said officials see a trade-off from having incarcerated people included in the town’s population count.

“It really dilutes the socioeconomic profile of the community,” Schlieve said. “Our postsecondary attainment looks different than maybe what it is for the average citizen here, as does things like our average household income. So even how we think about recruiting retail, it becomes a much bigger challenge when the data’s not depicting the reality of the community that’s out spending the dollars.”

The town’s officials commissioned a study published in 2009 in order to produce a profile showing what Waupun’s demographics would look like if the prison population was removed.

Still, Schlieve said that prisoners should be counted as residents of Waupun, in part because the town is providing prisoners with ambulances, as well as police and fire department services.

“What I would say is purely because we are providing those protective services and infrastructure pieces, I think it’s appropriate as it is,” Schlieve says. “I think we will follow the letter of the law.”

Kajstura, the Prison Policy Initiative’s legal director, says that a 1981 legal opinion by Wisconsin’s then-state attorney general puts towns like Waupun in “a bind” in terms of how it has to redraw voting districts. For state and local redistricting, “institutional populations cannot be excluded” from the population count produced by the Census Bureau, according to the opinion.

But Schlieve said in a written statement that Waupun is interpreting the bureau’s “usual residence” rule to mean that the town has to “count inmates in our community.”

In other prison towns around the U.S., however, local officials have devised ways to avoid creating voting districts made up primarily of prisoners. In Kentucky’s Oldham County — where two of its districts contain prisons — incarcerated people were excluded from the 2010 census numbers used to redraw the voting map. Officials in Florence, Ariz., avoid the issue altogether by holding at-large elections that allow all voters to choose candidates from the same pool.

Stuck in limbo

Maryland and New York are the first states in the country to relocate their numbers of incarcerated people back to the last known addresses of the prisoners.

After the 2010 census, those states underwent a complicated process to make sure prisoners were matched with the correct home addresses, according to a study by New York Law School. Four additional states — California, Delaware, Nevada and Washington — plan to implement similar changes after the 2020 count.

But for some prisoners, determining where “home” is can be complicated. After serving their time, many incarcerated people, uprooted for years, do not return to where they were living before they were locked up.

“Wherever they want to send you, they send you. Wherever they want you to be, you be. So it’s not a home,” says Alexander, who is not expected to be released from Waupun Correctional Institution until 2030. “You’re never in a position where you make this home because you’re always planning to exit.”

Further Readings

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Gutting of the Voting Rights Act

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Gutting of Section 5 from the 1965 Voting Rights Act (VRA)

  • 2010 Alabama’s GOP state gov filed a lawsuit
    • Challenging Voting Rights Act as “no longer necessary.”
  • Section 5 gutted
    • Section 5 created with understanding racism evolves
      • Required lawmakers in states with a history of discriminating against minority voters get federal permission before changing voting rules
    • 2013 Supreme Court ( 5-4 decision) removed section 5
      • “Our country has changed,” Chief Justice John G. Roberts Jr.
  • Immediate voter suppression laws
    • At the time 9 states Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia were currently trying to pass voter restrictions
      • All states passed voter restrictions once Section 5 removed
    • Texas immediately announced after the decision:
      • Voter ID law that had been blocked would go into effect
      • Redistricting maps would no longer need federal approval
  • American Legislative Exchange Council (ALEC)
    • 2011, introduced 34 state ID “model” laws
  • 20 states have new restrictions since 2010 election
    • 10 states passed restrictive voter ID laws
    • 7 states passed laws making it harder to register
    • 6 states cut back on early voting days and hours
    • 3 states made it harder to restore voting rights for people with past criminal convictions.

voting_map_1260-1200x873

2016 Voter Suppression

Vox: 7 specific ways states made it harder for Americans to vote in 2016

Here is a detailed list of the restrictions, based on the Brennan Center for Justice’s tracker, the Leadership Conference Education Fund’s recent report on poll closures, and Project Vote’s voter purge database:

  1. Voter ID requirements: Alabama, Mississippi, New Hampshire, Rhode Island, Virginia, South Carolina, Tennessee, Texas, and Wisconsin passed new laws that require voters prove their identity with a voter ID. Indiana also passed a law letting party-nominated election officers demand voter IDs at the polls. The laws can severely limit which IDs are valid — Texas, for example, allows a gun permit and other government-issued IDs but not a student ID. Some states allow exceptions to their laws, but the process of obtaining an exception can be arduous, especially for poor, time-constrained voters.
  2. Early voting cuts: Ohio cut a whole week from early voting, eliminating the “golden week” in which voters could register and vote on the same day. And Nebraska cut its early voting period from 35 days to no more than 30 days.
  3. New requirements to register to vote: Kansas passed a law that requires new voters to show proof of citizenship to register to vote. Virginia also required groups submitting 25 or more voter registration forms to register with the state, and reduced the amount of time to deliver the forms from 15 days to 10 days.
  4. Limits on mail-in ballots: Arizona made it a felony to collect and turn in someone else’s mail-in ballot, even with that voter’s permission. The US Supreme Court recently let the law stand for 2016.
  5. Provisional and absentee voting changes: Ohio passed strict rules that can invalidate absentee and provisional ballots if forms accompanying those ballots aren’t filled out in a very specific way.
  6. Polling place closures: Southern states, from Arizona to North Carolina, have closed down at least 868 polling places since the US Supreme Court struck down part of the Voting Rights Act in 2013. (The Voting Rights Act could have allowed the Department of Justice to stop these closures before, but not anymore.) These are only the closures tracked in about half the counties that were once covered by the Voting Rights Act due to their long histories of racial discrimination, so there have likely been hundreds or even thousands more closures nationwide.
  7. Voter roll purges: Several states have attempted to conduct sweeping purges of voter rolls, potentially undoing voters’ registration without their knowledge. Some of these purges — such as North Carolina’s and Florida’s — have been overturned by courts, but not all are even known to the public until it’s too late.

The Newsroom – Tea Party is the American Taliban

2018 Voter Suppression

Brennan Center for Justice: This Is the Worst Voter Suppression We’ve Seen in the Modern Era

Large-scale voter purges from Florida to Maine. Ultra-strict registration rules keeping voters off the rolls in Georgia and other states. Cuts to early voting sites in North Carolina. A North Dakota voter ID law that could keep Native Americans from the polls. False voting information being spread online.

Since the modern-day push to create barriers to voting got underway around a decade ago, the Brennan Center has been tracking restrictive voting laws and practices as closely as any organization in the country – as well as speaking out against them and challenging many in court. As Election Day 2018 approaches, citizens in 24 states are facing new laws making it harder for them to vote than it was in 2010. And in nine of those states, it’s harder to vote than it was in 2016. (We rounded up the range of voting problems we’ve seen in 2018 here). By our assessment, the range of voter suppression efforts has been more widespread, intense, and brazen this cycle than in any other since the modern-day assault on voting began, especially when viewed in combination with the accumulated new hurdles to voting.

A number of factors have converged to turn up the volume on voter suppression. First, by consistently and falsely stoking fear about illegal voting for over two years – including the lie that he’d have won the popular vote if it weren’t for millions of non-citizen voters – President Trump has helped make the issue central to the far right’s agenda. Trump’s short-lived voter fraud commission collapsed in January after drawing bipartisan outrage, but it nonetheless acted as a signal to supportive states that efforts to make voting harder would be welcomed at the highest levels. It’s no coincidence that in the first few months of Trump’s presidency, a slew of states proposed or passed new restrictions, after several years during which the pace had seemed to slow.

The courts also have played a key role. The Supreme Court’s 2013 ruling in Shelby County v. Holder, which neutered the most effective plank of the Voting Rights Act, offered a green light to a host of election rules changes in parts of the country whose voting rules previously had been under federal supervision. The court’s new staunchly conservative majority may be encouraging even states not directly affected by Shelby to lean forward on voter suppression, confident — we hope falsely — that the justices won’t stop them. The court recently declined to block North Dakota’s voter ID law, despite evidence that thousands of Native Americans who live on reservations could be stymied by its requirement that their IDs include a residential mailing address.

Of course, courts have also been major players in stemming the growth of voting restrictions. The number of court decisions against new restrictions has ballooned in recent years, with several finding that officials had intentionally tried to keep minorities from voting. But despite these victories, another troubling reality has emerged: Even when courts rule against restrictive voting measures, it isn’t enough to deter those looking to limit access to the ballot.

Litigation is typically time-consuming, and so these harsh laws often stay in place, fully intact and disenfranchising voters, for one or more election before a court rules against them. And even if that ruling does come, it may only weaken the law rather than striking it down fully — as happened with Texas’s and Wisconsin’s strict voter ID laws, among other examples. That half-a-loaf outcome gives would-be vote suppressors little incentive to think twice about their strategy. And in the cases when a court scraps a law entirely, the confusion and misinformation surrounding the process can often still keep some voters from the polls.

Equally troubling, those who seek to restrict access to voting do not seem to pay much of a political price. For example, the authors of North Carolina’s sweeping voter suppression law, struck down by a federal court which found it “targeted African-Americans with almost surgical precision,” did not lose their political perches — indeed, one of its key legislative champions now sits in the U.S. Senate, and the lawyer who defended the law has been nominated to be a federal judge. Put bluntly: In the absence of a broad Supreme Court ruling enforcing voting rights — something that is now an uphill battle at best — or strong federal legislation expanding the legal tools available to voters, the courts simply aren’t enough to combat voter suppression.

Finally, there’s race. There’s evidence that states in which the political clout of minorities is growing — where the ruling majority perceives a threat to its power — are more likely to see restrictive voting laws than are more demographically homogenous states. And as the salience of race in our politics has increased, so too has voter suppression.

A decade ago, there was a national spike in vote suppression efforts in the 2008 election cycle, when Barack Obama, backed by a multi-racial coalition, was bidding to become the nation’s first African-American president. That spurred unfounded fears that ACORN, a community group serving mostly minority communities, and its allied voter registration group for which Obama once worked, was plotting to steal the election on his behalf. Two years later, this resulted in the first massive wave of news laws cutting back on voting access. In the age of Trump, politicians have grown more comfortable openly playing to these fears. And this year, two of the highest-profile statewide races feature progressive African-American candidates – one the founder of a voter registration group – running against white conservative Trump supporters.

Partisanship plays a role too. Voting restrictions have almost exclusively been promoted and supported by Republicans. As our country becomes more polarized, the partisan divide on voting rights has taken on greater import.

Causes aside, here’s the grim reality: The scope and sophistication of efforts to make voting more difficult make clear that voting advocates can’t respond solely by playing a defensive whack-a-mole against the worst laws and practices. That crucial work will continue, but it must be paired with a positive reform agenda — one that is gaining momentum at the state level — that bolsters protections for the right to vote and expands access to the ballot. Adding to this momentum, on Tuesday voters in four states will consider ballot initiatives to expand access to voting (in addition to four ballot initiatives to improve the redistricting process). After Election Day, it will be up to the new Congress and state legislatures to take up  voting rights.

We faced even worse voter suppression schemes before the 1965 Voting Rights Act, and we responded by making our democracy stronger. We should do so again.

Voter Suppression Tactics used in 2018 Election

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2020 Voter Suppression

Brennan Center: The New Voter Suppression

Over the last decade, states have enacted voter restrictions that disproportionately disenfranchise racial minorities and distort our democracy.

On Election Day in 1960, four unanswerable questions awaited Clarence Gaskins, a Black voter in Georgia looking to cast his ballot for president. Upon arrival at his designated polling place, he was ushered into a room that held a jar of corn, a cucumber, a watermelon, and a bar of soap. He was informed that in order to vote, he first had to answer the following correctly:

“How many kernels of corn are in the jar? How many bumps on the cucumber? How many seeds in the watermelon? And how many bubbles in the bar of soap?”

Clarence didn’t bother guessing once the polling official admitted there were no right answers. His vote was neither cast nor counted.

The connection between race and voter suppression did not end in the 1960s. While the overtly racist voter suppression tactics of the Jim Crow past are no longer with us, voter suppression remains a mainstay of electoral politics in the United States today.

Erecting New Barriers to the Ballot Box

Over the past decade, half the states in the nation have placed new, direct burdens on people’s right to vote, abetted by a 2013 Supreme Court decision that struck down a key provision of the Voting Rights Act. And the racial cause and effect of these seemingly race-neutral laws are hard to escape.

Take strict voter ID.

These laws require voters to present a government-issued photo ID in order to vote, and they offer no meaningful fallback options for people who do not possess one of these IDs. Like their Jim Crow predecessors, strict voter ID laws are often defended by reference to a racially neutral need to defend the “integrity” of elections. Specifically, defenders claim that voter ID laws are needed to combat voter impersonation fraud. But study after study has shown that voter impersonation fraud is vanishingly rare.

Many also claim that these laws impose little burden because everyone has the requisite ID — but the reality is that millions of Americans don’t, and they are disproportionately people of color.

Look at North Dakota: a federal district court found that, when the state enacted its current ID law in 2017, 19 percent of Native Americans lacked qualifying ID compared to less than 12 percent of other potential voters.

Likewise, Texas permits voters to use a handgun license to vote, but not a student ID from a state university. More than 80 percent of handgun licenses issued to Texans in 2018 went to white Texans, while more than half of the students in the University of Texas system are racial or ethnic minorities.

Strict voter ID is just one of a number of racially charged voting restrictions that states have adopted this decade. For example, following the election and reelection of President Obama — and the concomitant surge in turnout by Black voters — states like North Carolina imposed new restrictions on early voting, which was disproportionately used by people of color.

Other states imposed new restrictions on the voter registration process. In 2019, for example, Tennessee imposed new hurdles for third-party voter registration drives in response to a “large-scale effort to register black voters” ahead of the 2018 election.

In 2017, Georgia enacted an “exact match” law mandating that voters’ names on registration records must perfectly match their names on approved forms of identification. In the leadup to the 2018 election, approximately 80 percent of Georgia voters whose registrations were blocked by this law were people of color. (A lawsuit forced the state to largely end the policy in 2019.)

Fact

80%
of Georgia voters blocked by the state’s “exact match” voter registration law were people of color in 2018.

Complaint, Georgia Coalition for the People’s Agenda, Inc. v. Kemp ¶ 68 (Oct. 11, 2018)

Furthermore, the Brennan Center has documented a surge in voter purges — the sometimes error-prone process by which election officials remove allegedly ineligible voters from the rolls — in jurisdictions with a history of racial discrimination in voting.

The Supreme Court’s 2013 Voting Rights Act decision ended the requirement for those places to get permission (or “preclearance”) from the federal government before changing their voting rules. Afterwards, the median purge rate in counties previously covered by the law was 40 percent higher than the purge rate in other jurisdictions.

Unsurprisingly, in the past decade, federal courts have repeatedly found that voting restrictions and other voting measures were passed with a racially discriminatory purpose.

“Meet James Crow, Esquire”

As these examples make clear, race continues to play a key role in the voting process. The racial components of new voting restrictions are still here, but they are more subtle. Commenting on this change, civil rights activist Rev. William Barber II has said, “Jim Crow did not retire: he went to law school and launched a second career. Meet James Crow, Esquire.”

As voter suppression continues to evolve — with communities of color still bearing the brunt — protecting the right to vote remains as important today as it has ever been.

The Guardian: Trump says Republicans would ‘never’ be elected again if it was easier to vote

President dismissed Democratic-led push for voter reforms amid coronavirus pandemic during Fox & Friends appearance

Donald Trump admitted on Monday that making it easier to vote in America would hurt the Republican party.

The president made the comments as he dismissed a Democratic-led push for reforms such as vote-by-mail, same-day registration and early voting as states seek to safely run elections amid the Covid-19 pandemic. Democrats had proposed the measures as part of the coronavirus stimulus. They ultimately were not included in the $2.2tn final package, which included only $400m to states to help them run elections.

“The things they had in there were crazy. They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again,” Trump said during an appearance on Fox & Friends. “They had things in there about election days and what you do and all sorts of clawbacks. They had things that were just totally crazy and had nothing to do with workers that lost their jobs and companies that we have to save.”

Democrats often accuse Republicans of deliberately making it hard to vote in order to keep minorities, immigrants, young people and other groups from the polls. And Republicans often say they oppose voting reforms because of concerns of voter fraud – which is extremely rare – or concerns over having the federal government run elections. But Trump’s remarks reveal how at least some Republicans have long understood voting barriers to be a necessary part of their political self-preservation.

“I don’t want everybody to vote,” Paul Weyrich, an influential conservative activist, said in 1980. “As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.”

Trump’s Monday comments showed he saw voter suppression as part of his re-election strategy, the Democratic National Committee (DNC) said in a statement Monday. “Ensuring that Americans can vote during the Covid-19 crisis is fundamental to maintaining our democracy. It is shocking that Trump is essentially admitting that when the American people vote, Republican lose,” said Xochitl Hinojosa, a DNC spokeswoman. “Trump knows that suppressing the vote is the only way he and Republicans win in November.”

Shortly after he was elected, Trump falsely claimed he would have won the popular vote had it not been for millions of illegal votes. There is no credible evidence to support the claim. In December, a Trump campaign aide was recorded saying: “Traditionally it’s always been Republicans suppressing votes in places.” The aide later told the Associated Press he was saying that Republicans have traditionally been accused of voter suppression.

The $400m that Congress allocated so far is just a small fraction of what the Brennan Center for Justice estimated election officials need to run elections in November if coronavirus still lingers. Officials need that money to pay for postage, personnel and equipment to process an influx of mail-in ballots.

The urgency of getting election officials those resources should not be lost in the political fighting, said Myrna Perez, director of the Brennan Center’s voting rights and elections program.

“What cannot be lost in all the back and forth among politicians is that election administrators at the state and local level need substantial resources now to ensure that the elections in November go off smoothly and safely,” she said.

Further Readings

2016 Election

2018 Election

2020 Election

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Gerrymandering

Every ten years there is a census in the US to track shifting population changes.  Each state gets a certain amount of electoral districts, with one House of Representative for each district, based on their population.  To ensure everyone is getting equal representation in their state the electoral districts are often redistricted or their boundaries are redrawn, to capture any population shifts.  When districts are redrawned, states must draw Congressional districts of roughly equal population and comply with the Voting Rights Act of 1963, which prohibits plans that diminish the voice of racial minorities.  For most states the majority party in the state legislatures get to decide how to redistrict.

Often the majority party will redraw the district lines to capture/exclude populations that predominately vote for a particular party (like people of color usually vote for democrats and white seniors usually vote for republicans) to ensure they get more House of Representatives seats even if more people in the state vote for the other party.

Throughout the 20th century, courts have grappled with the legality of these types of gerrymandering and have devised different standards for the different types of gerrymandering. Various legal and political remedies have emerged to prevent gerrymandering, including court-ordered redistricting plans, redistricting commissions, and alternative voting systems that do not depend on drawing boundaries for single-member electoral districts.

States with independent commissions for redistricting: Alaska, Arizona, California, Idaho, Montana, and Washington

These independent commissions have regulations that:

  • Limit direct participation by elected officials.
  • Banned legislators and public officials from the commission
  • Bans commissioners from running for office in the districts they draw
  • Some independent commissions even bar lobbyists from serving on the commission

During the census year of 2010 the Republicans won huge victories in state governments giving the republicans the power to redistrict many states.  They drew up several controversial district lines while redistricting that has assured that:

  • In the 2012 election, Democrats received 1.4 million more votes for the House of Representatives, yet Republicans won control of the House by a 234 to 201 margin. This is only the second such reversal since World War II.
  • During the 2016 election the GOP won 49.7 percent of the national popular vote for the House, but garnered 55.2 percent of the House seats.
  • Several states where the Democrats won the popular vote, the Republicans still took more House of Representatives seats.
  • Even states that the Democrats lots the popular vote, they still didn’t receive as many House of Representative seats as they should have.

Overview

  • Census
    • Every 10 years there is a census in the US to track shifting population changes
    • Each state gets a certain amount of electoral districts based on their population
      • One House of Representative for each district
    • To capture any population shifts and ensure everyone is getting equal representation
      • electoral districts are often redistricted or their boundaries are redrawn
  • Redrawing Districts
    • When redrawing districts states must:
      • Draw Congressional districts of roughly equal population
      • Comply with the Voting Rights Act, which prohibits plans marginalizing racial minorities
    • Can draw lines on partisan politics but not race (sometimes it’s a fuzzy line)
      • Party and race are often aligned – difficult to see whether a district is redrawn by partisan or race
      • Often majority party redraws district lines to capture/exclude populations that vote other party
        • like people of color for Democrats and white seniors for republicans)
  • Better ways to Redraw Lines
    • States with independent commissions for redistricting
      • Alaska, Arizona, California, Idaho, Montana, Washington
    • These independent commissions have regulations that:
      • Limit direct participation by elected officials
      • Banned legislators and public officials from the commission
      • Bans commissioners from running for office in the districts they draw
      • Some independent commissions even bar lobbyists from serving on the commission
    • Seven states have only one congressional district

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  • 2010 Census
    • GOP won many state govs getting ability to redistrict many states
  • GOP 2010 Gerrymandering
    • GOP drew several controversial district lines that has assured that:
      • In 2012 election, Democrats received 1.4 million more votes for the House
        • Yet GOP won control of House 234 to 201
      • In 2016 election, GOP won 49.7% of the national popular vote for House
        • But garnered 55.2% of the House seats
      • Several states where Democrats won the popular vote
        • GOP still took more House seats
  • Due to Gerrymandering 80% of House Districts are Uncontested

stacked-gopvotes-worth-ratio

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  • Supreme court missed many chances to end Gerrymandering since 2016
    • Sent Wisconsin, Maryland and North Carolina cases back to state courts
    • Approved most of the gerrymandered maps in Texas
    • With Justice Anthony Kennedy retirement, its doubtful there will be a fifth voter to outlaw gerrymander anytime soon
  • In 2018 election
    • Michigan
      • Approved an independent redistricting commission
    • Missouri
      • Passed a amendment reforming redistricting with more fairness
    • Utah
      • Approved an independent redistricting commission
    • Colorado
      • Approved an independent redistricting commission
    • Ohio
      • Approved amendment requiring support from both parties to approve redistricting plan

Follow Link for Current State Redistricting Reform Campaigns

ACLU: What the District

Explore how your own Congressional district has changed over time

The man who rigged America’s election maps

Further Reading

Mother Jones: Now That’s What I Call Gerrymandering!

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Unfair Representation

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Source: franifio

 —

PBS: The racial history of the Electoral College — and why efforts to change it have stalled

AKRON, Ohio — Rep. Emilia Sykes is mad about the country’s presidential election system and wants to change it. But on Friday, her focus turned elsewhere: to the 10,000 students whose school just shut down.

Within months of Trump winning the presidential election in 2016, despite failing to capture the majority of votes, lawmakers such as Sykes in Ohio as well as Florida, Georgia, South Carolina, Texas and at least a dozen other states supported bills to transform the process. If enacted by enough states to influence the majority, they would agree to give all their electoral votes to the most popular presidential candidate, regardless of who wins their state.

Ten states and Washington, D.C., have already agreed to join the compact.

But in Ohio’s two-thirds Republican legislature, the effort languished and the impetus started to fade. Lawmakers in other states, too, abandoned their fights. Attempts to change the Electoral College system that were once seen as bipartisan fell victim to the same kind of divide that fueled this weekend’s federal government shutdown.

“The idea was to pitch this as something that was of interest to Democrats and Republicans alike,” said Joshua Tucker, a professor of politics at New York University. “Now it’s seen as a way of undermining the Republican party.”

A Gallup poll after the election showed that Republicans who favored a national popular vote dipped from 54 percent in 2011 to 19 percent in December 2016.

For Sykes, who represents her hometown city of Akron, changing the system has less to do with partisanship than with recognizing a history that still resonates today. The Electoral College was built in part to accommodate white, male slave owners who could not have anticipated a two-party system, that slaves would be freed or that black people and women would be able to vote.

And Ohio is not only a battleground state with a legacy of forecasting each election, it’s also one of the only states where black legislators are at the forefront of challenging the Electoral College over racial underrepresentation.

“It dilutes our power,” she said. “And we recognize that and we get it and we don’t want it. We want our power to be used to its fullest potential.”

Ohio is among 48 states that have for most of the country’s history pledged all of their Electoral College votes to the party that wins the majority in the state, no matter how close the race.

And since black people, who are among the most fervent voter base for the Democratic party, are often scattered throughout red states, a reformation could signal to them that their ballots are as valuable and powerful as white people’s, she said.

Still, even devotees like her are struggling to keep up the fight. On Friday, for instance, the free, online charter school Electronic Classroom of Tomorrow for young adults, was shut down halfway through the academic year.

“Thousands of students have to figure out where they’re going to go to school on Monday,” Sykes said. “That takes priority over the Electoral College, although it’s equally as important.”

‘At the present period, the evil is at its maximum’

When the framers met for the Constitutional Convention in Philadelphia in 1787, they aimed to unify the colonies with a government that gave fair representation to all states, no matter their size.

They were deciding whether slaves in Southern states should be considered property –to abscond population taxes — or people, so those states could have more representation in government.

Slaves were the economic heart and pulse of the country and the Northern states, even if they did not engage in slavery, benefited from their labor. So even though slaves were unable to vote, the Convention decided that slaves should be counted as three-fifths of a white person for the purposes of representation in Congress.

Considering options for electing the president, James Madison, now known as the “Father of the Constitution” and a slave-owner in Virginia, said the “right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.”

With that, Madison had proposed the prototype for the same Electoral College system the country uses today: instead of a direct vote, each state was to choose electors, roughly based off their population, but weighted by slaves.

The Convention decided the electors would convene, exchange ideas and cast their votes to reflect their own ideals on the state’s behalf. Though the framers could not foresee that by 1800, Thomas Jefferson, whose state of Virginia was the largest because of its 40 percent slave population, would beat out John Adams, who was opposed to slavery.

Jefferson also convinced his state to give him all its electoral votes if he won the majority of its ballots. Then, Jefferson signed Ohio as a state, which also gave all its electors to the most popular candidate instead of dividing them among the parties, and the Federalist party engaged in the same tactic.

By 1823, Madison had profound distaste for this winner-take-all approach. “At the present period, the evil is at its maximum,” he wrote, and called for an amendment to abandon it, but that never happened.

It took nearly 100 years after the Convention to abolish slavery with the 13th Amendment in 1865. Later came women’s suffrage in 1920, and then the prohibition of discriminatory voter registration requirements with the Civil Rights Act of 1964. By then, more than 80 percent of black voters across the country had started to favor the Democratic candidate in presidential elections.

But more than half of the country’s black population, about 23 million and growing, lives in the South, which is encompassed by Washington, D.C., and 15 states that stretch from Texas to Delaware, according to the 2010 U.S. Census. The Republican party won 12 of those states, and their combined 162 electoral votes, through states’ winner-take-all approach to the Electoral College system in 2016.

The Democratic party won three states — Delaware, Maryland and Virginia — as well as D.C. for a combined total of 29 electoral votes.

“[We have] an electoral college that says to this entire voting block of people, ‘You all are voting in high numbers, high turnout across the board, across the country. But in the end, that does not matter because we’ll have this elector, maybe they’ll do what you’ve done, maybe they won’t,’” Sykes said.

While many experts say the system was designed to give states autonomy and also avoid tyranny or a demagogue, this last election has some critics revisiting that idea.

‘They didn’t think about racial minorities’

From his top floor office in the College of Arts and Science building at the University of Akron, Dean John Green said that more than 200 years ago, the framers could not have comprehended an election like Trump’s.

“One of the things they were trying to get at with this elaborate machinery, including the Electoral College, was a way to protect minorities,” Green said. “They didn’t think about racial minorities … Now, there’s a danger of a white tyranny.”

It’s unclear how much isolating minorities played an explicit role in Trump’s strategy, Matt Borges, the former head of Ohio’s Republican Party said, but regardless, the campaign “further polarized us, pushed us away from really ever being able to make inroads with [people of color] and it was oddly appealing in a way to a block of voters.”

Trump’s win marked the second Republican candidate this century to earn the college for their first term without having won the popular vote and the fifth time in history that the president did not secure the majority of votes. His Democratic rival Hillary Clinton gained nearly 2.9 million more votes. And President George W. Bush was elected in 2000 with about 540,000 fewer votes than his opponent, Al Gore.

Now, Tucker of New York University says it is too hard to ignore that there might be built in advantages for the Republican party, yet anyone who challenges it bears the label of either being a sore, Democratic loser or seeking only to undermine Trump.

One month after Trump’s inauguration, Rep. Dan Ramos (D-OH) and Rep. David Leland (D-OH) introduced House Bill 25, which remains in a pile of 462 bills for the two-year General Assembly session.

The House has a policy to give all bills at least one hearing by the end of the session, though Rep. Louis Blessing (R-OH) predicted that since there is a lack of support and that there are other imminent proposals, “it will probably get its first and most likely only hearing in November or December.”
Blessing said that Ohio, given its legacy, is also a state that is used to the national attention it receives with the current system.  It benefits people like Robin Hovis, who is the head of the Holmes County Republicans. Hovin is a financial advisor who lives across the street from his office in a downtown area amid the rolling hills and narrow roads of Amish Country, where parking lots include spots for horse-drawn carriages. About 43,000 people live here, 99 percent of whom are white. About 70 percent of the ballots cast during the 2016 election in this county were for Trump.“We would lose our voice entirely with a popular vote,” Hovis said. In the last election, “Those of us in the flyover area were actually listened to,” he said.

Hovis said people saw Trump as a businessman who “called a spade a spade,” and that he did not think the GOP engaged in a racially charged campaign.

He acknowledged that most of Trump’s supporters were white, which he thought was a pendulum swing in reaction to President Barack Obama winning the previous elections.

Sen. Vernon Sykes, Emilia Sykes’ father, remembers as a state representative when he introduced the first bill in Ohio to join the National Popular Vote Interstate Compact. It was with some of his black colleagues, though all Emilia remembers was large stacks of paper everywhere.

“That’s often how you have to fight your battles, especially when you’re coming from a minority position,” Emilia Sykes said. “Just waiting for that build up and sometimes it seems like a lifetime and sometimes it actually is a lifetime.”

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Vox: America’s democracy is failing. Here’s why.

Four ways America’s system of government is rigged against democracy (and Democrats).

Let’s start with a plausible scenario that could play out in the 2020 election.

Democrats win the popular vote by an even wider margin than Hillary Clinton’s nearly 3 million vote lead in 2016, running up the score in solid blue states and closing most of the gap in large red states like Texas. Pennsylvania and Michigan return to the Democratic fold, but Trump ekes out the narrowest of victories in Wisconsin. He walks away with exactly 270 electoral votes and the presidency.

Meanwhile, House Democrats have a strong year, but not nearly as strong as 2018. Democratic candidates win every congressional district where Hillary Clinton prevailed in 2016, plus every district where Clinton lost by less than 3 percentage points. Democratic House candidates win the total popular vote by a few percentage points, but it’s not enough. Despite her party’s popular vote victory, Speaker Nancy Pelosi is once again demoted to minority leader.

In the Senate, Democrats pick up seats in Colorado and Maine, but they never really have a shot at replicating Sen. Doug Jones’s fluke win in Alabama. Republicans end up with a 52-seat majority in the Senate — and, with it, the ability to keep filling the courts up with Trump judges. Although the Democratic “minority” would represent about 17 million more people than the Republican “majority” in this scenario, Mitch McConnell still controls the Senate.

Solid majorities of the nation, in other words, could vote for a Democratic White House, a Democratic House, and a Democratic Senate, and yet Republicans could gain control of all three.

The system is rigged. It was rigged from the outset, quite intentionally, to favor small states. Under current political coalitions, that’s become an enormous advantage for Republicans. The country’s framers obviously could not have known that they were creating a system that would give Donald Trump’s party an unfair advantage over Hillary Clinton’s party more than two centuries later. But they did create a system that favors small states over large states.

That means that a political coalition that is largely powered by voters in dense, urban areas — like, say, modern-day Democrats — are at a terrible disadvantage under this constitutional arrangement. (And, to be clear, the system would be just as anti-democratic if it put Republicans at a disadvantage instead.)

Republicans, meanwhile, take their unfair advantage and build on it by gerrymandering the states they control, using their Senate “majority” to fill the courts with Republican judges, and then using their control of the judiciary to bolster their own party’s chances in elections.

This is how United States now finds itself barreling toward a legitimacy crisis.

Four features of our anti-democratic democracy

Broadly speaking, there are four features of our system of government that make our democracy less democratic, many of them working in interlocking ways. These features also happen to give the GOP a structural advantage.

1) The Senate is deeply unrepresentative of the country

According to 2018 Census Bureau estimates, more than half of the US population lives in just nine states. That means that much of the nation is represented by only 18 senators. Less than half of the population controls about 82 percent of the Senate.

It’s going to get worse. By 2040, according to a University of Virginia analysis of census projections, half the population will live in eight states. About 70 percent of people will live in 16 states — which means that 30 percent of the population will control 68 percent of the Senate.

Currently, Democrats control a majority of the Senate seats (26-24) in the most populous half of the states. Republicans owe their majority in the Senate as a whole to their crushing 29-21 lead in the least populous half of the states. Those small states tend to be dominated by white voters who are increasingly likely to identify with the Republican Party.

Senate malapportionment is a relic of an unstable alliance among 13 young nations. As Yale law professor Akhil Amar explains, the Articles of Confederation that preceded the Constitution were “an alliance, a multilateral treaty of sovereign nation-states.” The Constitution did not simply change the rules that governed an existing nation; it bound 13 independent and sovereign states together.

The Founding Fathers came together at Philadelphia to achieve union at nearly any cost, because they wanted to avoid the persistent warfare that plagued Europe. Without a union, Amar says, “each nation-state might well raise an army, ostensibly to protect itself against Indians or Europeans, but also perhaps to awe its neighbors.”

Nor was this merely a hypothetical concern. When large states proposed a fair legislature, where each state would be given seats proportional to its population, Delaware delegate Gunning Bedford literally threatened that his state would make war on its neighbors. “The large states dare not dissolve the Confederation,” Bedford insisted, or else “the small states will find some foreign ally of more honor and good faith.”

This is why we have a Senate: In a negotiation among 13 sovereign nations, each of these nations may demand equality as the price of union. Whatever the wisdom of this devil’s bargain in 1787, America is a very different place today. There is little risk that Utah will make war on Colorado, or that New Hampshire will invade Vermont.

Instead, we are heading toward a future where — barring some kind of major partisan realignment — the Senate will routinely feature a majority that represents far less than half of the nation as a whole. In the current Senate, the Republican “majority” represents about 15 million fewer people than the Democratic “minority.” And if current trends continue, the Republican advantage is likely to grow.

A common defense of our current arrangement is that Senate malapportionment wards off a “tyranny of the majority.” As the Heritage Foundation’s Edwin Feulner argues in a piece that’s fairly representative of Senate defenders, malapportionment “keeps less-populated states from being steamrolled.”

But there’s no reason to believe that residents of small states, as a class, make up a coherent interest group whose political concerns are in tension with residents of large states. The residents of Vermont (population: 623,989) vote more like the residents of New York (population: 19,453,561) than they do like the residents of Alaska (population: 731,545). The people of Wyoming (population: 578,759) vote more like the people of Texas (population: 28,995,881) than they do like the people of Delaware (population: 973,764).

There are over 20,000 more farms in California than there are in Nebraska. There are rural regions in large states. And there are some urban centers in small states.

There’s another factor to consider when thinking about the small state advantage: race. The Senate does not simply give extra representation to small states, it gives the biggest advantage to states with large populations of white, non-college-educated voters — the very demographic that is trending rapidly toward the GOP.

Chart of senate-weighted demographic composition Data for Progress

Republican dominance of the Senate is a relatively recent occurrence; Democrats, after all, held a supermajority in the Senate as recently as 2009. Yet the GOP’s dominance is also likely to remain durable for as long as many white voters continue to sort into the Republican Party. The Democratic supermajority in 2009 was made possible by Democratic senators in places like Nebraska, North Dakota, and South Dakota. It’s tough to imagine any of those states electing a Democrat so long as America’s current political coalitions remain stable.

Of course, Democrats could try to buck this trend by becoming more like Republicans. They could shift their positions to appeal to the whiter, more socially conservative voters that dominate many of the smaller states. But that’s hardly a solution for the majority of voters that support the Democratic Party’s current positions, who would become even more isolated from power.

And there’s one other point that’s worth making here. Two years ago, Neil Gorsuch made history, becoming the first member of the Supreme Court in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. The second was Brett Kavanaugh.

Similarly, Senate malapportionment also allowed Republicans to hold the late Justice Antonin Scalia’s vacant seat open until Trump could fill it. When Scalia died in 2016, Republicans had a 54-46 majority in the Senate, despite the fact that Democratic senators represented about 20 million more people than Republicans in 2016.

Malapportionment, in other words, does not simply give Republicans an undemocratic advantage in the Senate. It also gave them control of the courts.

2) The next winner of the Electoral College could lose the popular vote by as much as 6 percentage points

The best case for the Electoral College was offered by Alexander Hamilton in the Federalist Papers. The choice of a president, Hamilton wrote, “should be made by men most capable of analyzing the qualities adapted to the station.” Such a process, Hamilton assured us, “affords a moral certainty” that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Hamilton’s argument is refuted by three words: “President Donald Trump.”

Setting aside the fact that the Electoral College is the reason why a man who is not in any degree endowed with the requisite qualifications is in the White House, the Electoral College is not capable of achieving Hamilton’s stated goal. The people who make up the Electoral College are rarely “men most capable of analyzing” who would be an excellent president. They are typically partisan loyalists, selected by their party to perform one and only one task — robotically voting for whoever the party nominated to be president.

To date, this system has allowed five men who lost the popular vote to become president— Trump, George W. Bush, Benjamin Harrison, Rutherford B. Hayes, and John Quincy Adams. Barring a political realignment, it’s likely that such “inversions” will become more common (as they already have in the past couple decades). A recent study by three researchers from the University of Texas found that “a 3.0 point margin favoring the Democrat (i.e., 48.5% Republican vote share, or a gap of about 4 million votes by 2016 turnout) is associated with a 16% inversion probability.”

In other words, a Democrat could potentially win the popular vote by as much as 6 percentage points and still lose the Electoral College to a Republican.

A chart showing the probability of a Republican win at various vote thresholds is skewed. Michael Geruso, Dean Spears, and Ishaana Talesara

A more modern defense of the Electoral College is similar to the conservative defense of the Senate. The Electoral College, according to Heritage’s Hans von Spakovsky, “prevents candidates from winning an election by focusing only on high-population urban centers (the big cities), ignoring smaller states and the more rural areas of the country.”

But if ensuring that candidates focus on the nation as a whole is the goal, the Electoral College defeats this goal. Thanks to the Electoral College, candidates focus almost exclusively on a handful of swing states like Pennsylvania, Wisconsin, or Michigan, while solid red states and solid blue states are largely ignored.

The real reason why the Electoral College exists is hotly contested. Some scholars, such as Amar and Harvard historian Jill Lepore argue that, in Lepore’s words, the Electoral College “was a compromise over slavery.”

This theory points to the Three-Fifths Compromise, which allowed slave states to count each slave living within their borders as three-fifths of a person for purposes of determining how many representatives those states should receive in the House. Because states gain electoral votes as they gain representation in the House, the Three-Fifths Compromise inflated slave states’ ability to choose a president.

Another theory, recently offered by political scientist Josep Colomer at the Monkey Cage, is that the framers never intended for the Electoral College to choose presidents. They merely expected the Electoral College to whittle down the list of candidates.

Under the original Constitution, the Electoral College would vote on who its members believed should be president. But, if no candidate received a majority, the House would choose the president from among the five candidates who received the most votes.

According to Colomer, “delegates in Philadelphia expected states would put forward a variety of candidates; none would win a national majority in the electoral college; and the election would typically pass to the House of Representatives.” The framers’ error was that they “didn’t expect candidates to emerge and run nationwide.”

So the Electoral College was either a poorly designed kludge that failed to achieve its intended purpose, or a misbegotten device intended to preserve a great evil.

3) Partisan gerrymandering is still allowed

As mentioned above, Justices Gorsuch and Kavanaugh owe their jobs to Senate malapportionment and the Electoral College — and Republicans owe their dominance of the judiciary to these two men. That dominance, in turn, has profound implications for who controls the House of Representatives.

Gerrymandering, to be clear, is not a uniquely Republican sin. When the Supreme Court took up the question of whether partisan gerrymandering violates the Constitution earlier this year, it heard two cases. One involved a Republican gerrymander in North Carolina, the other a Democratic gerrymander in Maryland.

Demonstrators gather outside of the Supreme Court to call for an end to partisan gerrymandering in Washington, DC, on October 3, 2017.
Olivier Douliery/Getty Images

But states must redraw their legislative maps every 10 years, shortly after the completion of the decennial census. This means that if one party dominates in an election year ending in a zero — as Republicans did in 2010 — that party will get to gerrymander a disproportionate number of states. Large swing states like Ohio, Michigan, and Pennsylvania drew maps that locked Republicans into power in the state legislature. Their control over the state legislatures then gave the GOP an unfair advantage in the US House.

Some of these gerrymanders have since been weakened or dismantled by courts. But the legacy of others will persist into the 2020 election — and potentially beyond — thanks to the Supreme Court’s 5-4 decision in Rucho v. Common Cause (2019), in which the Court ruled it can’t stop partisan gerrymandering. Rucho, it is worth noting, did not even attempt to defend partisan gerrymandering on the merits — indeed, it described it as “incompatible with democratic principles.”

Nevertheless, a majority of the justices believed that federal courts should not even consider challenges to partisan gerrymandering because they believed that the task of devising a legal test that could sort illegal gerrymanders from permissible maps is too difficult.

In Rucho, all five of the Court’s Republicans voted that federal courts are powerless to stop partisan gerrymandering. All four Democrats agreed that, at the very least, courts should dismantle the most egregious gerrymanders.

Again, Republicans owe that five-justice majority to Senate malapportionment and the Electoral College. Without these two anti-democratic features of our Constitution, it is likely that, at the very least, the most aggressive partisan gerrymanders would also be forbidden.

4) The Constitution is virtually impossible to amend

And that brings us to the last way that the Constitution is anti-democratic — it is almost impossible to amend it in order to remove these defects.

The United States Constitution, according to University of Texas law professor Sanford Levinson, “is the most difficult to amend or update of any constitution currently existing in the world today.” It takes three-quarters of the states to ratify constitutional amendments — which means that Republicans will almost certainly be able to block any attempt to remove the Constitution’s anti-democratic features.

Now, in fairness, there are good reasons why a constitution should not be too easy to amend. The Constitution’s difficult amendment process prevents a transient majority from coming into power, and then enacting a raft of amendments that entrench themselves in leadership.

But a difficult amendment process is only a virtue if the Constitution’s underlying structures are, themselves, conducive to democracy. If those structures become hostile to democracy — or if they tend to cement a minority faction in power — a difficult amendment process prevents the nation from replacing those flawed structures with a more democratic system.

Democrats can resort to nuclear tactics. If Democrats somehow manage to overcome the odds and capture Congress and the White House, they could divide large blue states like California and New York up into several states (provided that the legislatures of those states agreed to such an arrangement), thus changing the makeup of the malapportioned Senate. They could also add new seats to the Supreme Court to cancel out the GOP’s treatment of Obama Supreme Court nominee Merrick Garland.

But such moves invite retaliation if Republicans regain control. If there can be 10 Californias, why not 50 Alabamas?

Realistically, the most democratic solutions, such as abolishing the Senate or replacing it with a body that fairly represents all Americans, are off the table in a nation that cannot amend its Constitution. And so we’re likely left with our undemocratic system for a long while, pushing for reform when and where possible, but likely unable to fix the system absent a major political realignment.

Intellectualist: Analysis: 18% Of The U.S. Population Elects 52% Of The Country’s Senators

Republican senators enjoy a majority despite representing far fewer Americans than their Democratic colleagues.
Party distribution in the current U.S. Senate highlights a growing problem in American democracy: The country is under minority rule. And this gross imbalance of power increasingly contributes to instability in the United States.
In an explainer on four features of America’s “anti-democratic democracy,” Vox notes that more than half of the U.S. population now lives in just nine states — meaning a large swathe of the country is represented by just 18 senators, and “less than half of the population controls about 82 percent of the Senate.”A University of Virginia analysis of census projections indicates that the situation will only get worse. By 2040, just eight states will be home to half of the nation’s population, with about 70 percent of Americans living in 16 states. At that point, a mere “30 percent of the population will control 68 percent of the Senate.”The most populous half of the states lean left, Vox noted, giving Democrats a majority in those states, 26-24. But in the least populous half of the states — where white voters tend to be concentrated — Republicans maintain their grip on power by a whopping 29-21, propping up the Senate majority they currently enjoy.And give the present trajectory, the Senate GOP’s advantage will only grow. It is highly likely that “the Senate will routinely feature a majority that represents far less than half of the nation as a whole,” Vox wrote. Republicans’ current majority represents 15 million fewer Americans than the Democratic minority.

The old school notion that malapportionment protects smaller states from a “tyranny of the majority” no longer holds, according to Vox, because “there’s no reason to believe that residents of small states, as a class, make up a coherent interest group whose political concerns are in tension with residents of large states.”

The residents of Vermont (population: 623,989) vote more like the residents of New York (population: 19,453,561) than they do like the residents of Alaska (population: 731,545). The people of Wyoming (population: 578,759) vote more like the people of Texas (population: 28,995,881) than they do like the people of Delaware (population: 973,764).

There are over 20,000 more farms in California than there are in Nebraska. There are rural regions in large states. And there are some urban centers in small states.

Republican control of the Senate might be a relatively new development in American politics, but Vox noted that so long as white voters continue to sort themselves into the Republican Party — as they constitute a majority in less populous states — then the GOP advantage will not only continue but also grow.

The implications are many, but one particular point Vox made was that of the courts: “Two years ago, Neil Gorsuch made history, becoming the first member of the Supreme Court in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. The second was Brett Kavanaugh.”

And that was made possible by the Republican majority holding open Justice Antonin Scalia’s seat when he died in 2016, even though the Democratic minority at the time represented 20 million more Americans.

Not only has undemocratic control of the Senate given Republicans control of the nation’s upper chamber, but it handed them control of the courts as well.

Thomas B. Hofeller achieved near-mythic status in the Republican Party as the Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.

But after he died last summer, his estranged daughter discovered hard drives in her father’s home that revealed something else: Mr. Hofeller had played a crucial role in the Trump administration’s decision to add a citizenship question to the 2020 census.

Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision.

Those documents, cited in a federal court filing Thursday by opponents seeking to block the citizenship question, have emerged only weeks before the Supreme Court is expected to rule on the legality of the citizenship question. Critics say adding the question would deter many immigrants from being counted and shift political power to Republican areas.

The disclosures represent the most explicit evidence to date that the Trump administration added the question to the 2020 census to advance Republican Party interests.

[Inside the Trump administration’s fight to add a citizenship question to the census]

In a statement issued on Thursday evening, the Justice Department said the accusations in the filing were baseless and amounted to “a last-ditch effort to derail the Supreme Court’s consideration of this case.” It said Mr. Hofeller’s 2015 study had “played no role in the department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census.”

In Supreme Court arguments in April over the legality of the decision, the Trump administration argued that the benefits of obtaining more accurate citizenship data offset any damage stemming from the likely depressed response to the census by minority groups and noncitizens. And it dismissed charges that the Commerce Department had simply invented a justification for adding the question to the census as unsupported by the evidence.

Opponents said that the Justice Department’s rationale for seeking to add a citizenship question to the census was baldly contrived, a conclusion shared by federal judges in all three lawsuits opposing the administration’s action.

But a majority of the Supreme Court justices seemed inclined to accept the department’s explanation the question was needed to enforce the Voting Rights Act, and appeared ready to uphold the administration’s authority to alter census questions as it sees fit. The justices are expected to issue a final ruling before the court’s term ends in late June.

The filing on Thursday sought sanctions against the defendants in the lawsuit, led by Commerce Secretary Wilbur L. Ross Jr., who were accused of misrepresentations “on the central issues of this case.” Judge Jesse M. Furman of United States District Court in Manhattan set a hearing on the issue for Wednesday.

In nearly 230 years, the census has never asked all respondents whether they are American citizens. But while adding such a question might appear uncontroversial on its face, opponents have argued that it is actually central to a Republican strategy to skew political boundaries to their advantage when redistricting begins in 2021.

[How the Supreme Court’s decision on the census could alter American politics.]

Until now, Mr. Hofeller seemed a bystander in the citizenship-question debate, mentioned but once in thousands of pages of lawsuit depositions and evidence. Proof of his deeper involvement surfaced only recently, and only after a remarkable string of events beginning after his death in August at age 75.

Mr. Hofeller was survived by a daughter, Stephanie Hofeller, from whom he had been estranged since 2014. In an interview, Ms. Hofeller said she learned of her father’s death by accident after searching for his name on the internet, and returned to her parents’ retirement home in Raleigh, N.C., to see her mother, Kathleen Hofeller.

Sorting through Mr. Hofeller’s personal effects, looking for items she had asked her father to save for her, Stephanie Hofeller came across a clear plastic bag holding four external hard drives and 18 thumb drives, backups of data on Mr. Hofeller’s Toshiba laptop. Her mother gave Ms. Hofeller the backups, which turned out to hold some 75,000 files — family photographs and other personal data, but also a huge trove of documents related to Mr. Hofeller’s work as a Republican consultant.

Late last year, Ms. Hofeller said, she contacted the Raleigh office of the advocacy group Common Cause, seeking its help in finding a lawyer unconnected to her father to help settle his estate. Only after several conversations with a staff member there did she mention the hard drives in passing, she said, remarking almost jokingly that an expert on gerrymanders might find a lot in them that was of interest.

“My understanding was that anything that would be on these hard drives was duplicative of things that had already been hashed out” in court challenges to Mr. Hofeller’s maps, she said.

In fact, Common Cause had recently filed a new lawsuit in state court, challenging gerrymandered maps of North Carolina’s legislative districts drawn by Mr. Hofeller himself. When the staff member told her of the lawsuit, Ms. Hofeller said, she thought, “Wow — this might be of use.”

Lawyers for Arnold & Porter, the law firm representing Common Cause in the North Carolina suit, subpoenaed the drives in February. By happenstance, the same firm was representing private plaintiffs pro bono in the principal lawsuit opposing the citizenship question, in Federal District Court in Manhattan.

The documents cited in the Thursday court filing include an unpublished August 2015 analysis by Mr. Hofeller, who was hired by The Washington Free Beacon, a conservative news outlet financially backed by Paul Singer, a billionaire New York hedge fund manager and major Republican donor. Mr. Hofeller’s charge was to assess the impact of drawing political maps that were not based on a state’s total population — the current practice virtually everywhere in the nation — but on a slice of that population: American citizens of voting age.

At the time, the study’s sponsor was considering whether to finance a lawsuit by conservative legal advocates that argued that counting voting-age citizens was not merely acceptable, but required by the Constitution.

Mr. Hofeller’s exhaustive analysis of Texas state legislative districts concluded that such maps “would be advantageous to Republicans and non-Hispanic whites,” and would dilute the political power of the state’s Hispanics.

The reason, he wrote, was that the maps would exclude traditionally Democratic Hispanics and their children from the population count. That would force Democratic districts to expand to meet the Constitution’s one person, one vote requirement. In turn, that would translate into fewer districts in traditionally Democratic areas, and a new opportunity for Republican mapmakers to create even stronger gerrymanders.

The strategy carried a fatal flaw, however: The detailed citizenship data that was needed to draw the maps did not exist. The only existing tally of voting-age citizens, Mr. Hofeller’s study stated, came from a statistical sample of the population largely used by the Justice Department to verify that the 1965 Voting Rights Act was ensuring the voting rights of minority groups.

“Without a question on citizenship being included on the 2020 Decennial Census questionnaire,” Mr. Hofeller wrote, “the use of citizen voting age population is functionally unworkable.”

Roughly 16 months later, as President-elect Trump prepared to take office, Mr. Hofeller urged Mr. Trump’s transition team to consider adding a citizenship question to the census, the transition official responsible for census issues, Mark Neuman, said last year in a deposition in the Manhattan census lawsuit.

Mr. Neuman testified that Mr. Hofeller told him that using citizenship data from the census to enforce the Voting Rights Act would increase Latino political representation — the opposite of what Mr. Hofeller’s study had concluded months earlier.

Court records show that Mr. Neuman, a decades-long friend of Mr. Hofeller’s, later became an informal adviser on census issues to Mr. Ross, the commerce secretary. By that summer, a top aide to Mr. Ross was pressing the Justice Department to say that it required detailed data from a census citizenship question to better enforce the Voting Rights Act.

The court filing on Thursday describes two instances in which Mr. Hofeller’s digital fingerprints are clearly visible on Justice Department actions.

The first involves a document from the Hofeller hard drives created on Aug. 30, 2017, as Mr. Ross’s wooing of the Justice Department was nearing a crescendo. The document’s single paragraph cited two court decisions supporting the premise that more detailed citizenship data would assist enforcement of the Voting Rights Act.

That paragraph later appeared word for word in a draft letter from the Justice Department to the Census Bureau that sought a citizenship question on the 2020 census. In closed congressional testimony in March, John M. Gore, the assistant attorney general for civil rights and the Justice Department’s chief overseer of voting rights issues, said Mr. Neuman gave him the draft in an October 2017 meeting.

The second instance involves the official version of the Justice Department’s request for a citizenship question, a longer and more detailed letter sent to the Census Bureau in December 2017. That letter presents nuanced and technical arguments that current citizenship data falls short of Voting Rights Act requirements — arguments that the plaintiffs say are presented in exactly the same order, and sometimes with identical descriptions like “building blocks” — as in Mr. Hofeller’s 2015 study.

In their court filing on Thursday, lawyers for the plaintiffs said that “many striking similarities” between Mr. Hofeller’s study and the department’s request for a citizenship question indicated that the study was an important source document for the Justice Department’s request.

The filing also says flatly that Mr. Gore and Mr. Neuman “falsely testified” under oath about the Justice Department’s actions on the citizenship question.

In an interview on Thursday, Mr. Neuman denied the charge, and said he had worked for years to increase Hispanic representation in public office. “I gave complete and truthful testimony in my deposition,” he said. “My mother immigrated to this country from Central America. Any reference that I would advocate actions that harm the interests of the Latino community is wrong and deeply offensive.”

The Departments of Justice and Commerce had no immediate comment on the filings. Common Cause, which first obtained the hard drives, said the revelations on them were a wake-up call to supporters of the American system. “Now that the plan has been revealed, it’s important for all of us — the courts, leaders and the people — to stand up for a democracy that includes every voice,” said Kathay Feng, the group’s national redistricting director.

Ms. Hofeller said her decision to open her father’s files to his opponents was a bid for transparency, devoid of personal or political animus. Although she believed he was undermining American democracy, she said, their estrangement stemmed not from partisan differences, but a family dispute that ended up in court. Ms. Hofeller described herself as a political progressive who despises Republican partisanship, but also has scant respect for Democrats.

Her father, she said, was a brilliant cartographer who was deeply committed to traditional conservative principles like free will and limited government. As a child, she said, she was schooled in those same principles, but every successive gerrymandered map he created only solidified her conviction that he had abandoned them in a quest to entrench his party in permanent control.

“He had me with the idea that we are made to be free,” she said. “And then he lost me.”


Voting Resources

Voter Registration Resources

Online Voter Registration
https://www.vote.org/voter-registration-deadlines/

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Check Your Voter Registration
https://www.whenweallvote.org/

Find Your Election Dates, Polling Location, Voter ID Requirements, Voter Accessibility Laws, Sample Ballots
https://www.usa.gov/election-day

US Election Assistance Commission
Accessibility, Language, Oversea, etc Assistance
https://www.eac.gov/election-officials/voting-accessibility/

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Have a past conviction and wondering if you can vote?
RestoreYourVote.org

Learn about Issues and Candidates on Your Ballot

League of Women Voters
https://www.lwv.org/

League of Conservation Voters
https://www.lcv.org/

Ballotpedia
https://ballotpedia.org/Main_Page

VoteSmart
Non-partisan information (voting record, funding sources, speeches, etc) on candidates
votesmart.org

The Cook Political Report
Non-partisan election analysis
https://www.cookpolitical.com/

Free Rides to Vote and/or Register to Voter

Free Rides

Lyft
https://blog.lyft.com/posts/2018/8/22/get-out-the-vote?fbclid=IwAR142xPzeYYylfwW23PRAaW3r_OQ48B2oEmt7Z-7xBQd7AnXNEtgv_i5_KU

Uber
https://www.uber.com/newsroom/drivethevote/

Dodge City, Kansas Voter Suppression
After the only polling place in Dodge City, Kansas, was moved outside of the city, more than a mile from public transportation, Voto Latino, a Latino advocacy organization, chose to dedicate it rides within the town, which is 60 percent Hispanic. Voto Latino is pushing fundraising efforts to help cover the costs.

Free Rentals

Lime Bike or Scooter
https://www.engadget.com/2018/10/26/ime-free-rides-election-day-november-6/

Zipcar
https://www.businessinsider.com/zipcar-free-car-rentals-on-election-night-2016-11

Capital Bike Share
https://dcist.com/story/18/10/29/capital-bikeshare-will-free-ride-election-day/

CitiBike
https://ny.curbed.com/2018/10/29/18040338/citi-bike-free-passes-election-day-nyc

Tips on Fighting Voter Suppression

  • If you are turned away at the polls don’t walk away Say this: I REQUEST A PROVISIONAL BALLOT AS REQUIRED BY LAW. Don’t let them steal your vote.
  • If a voting center closes stay in line until you get a chance to vote

Know Your Rights: Voter Intimidation

Contact for Assistance:

  • the Election Protection Hotline (866-OUR-VOTE)
  • the Department of Justice Voting Rights Hotline (800-253-3931)
  • or an attorney if you believe that your rights have been violated

Volunteer During Election Day

Volunteer With Your Closest Swing District to Help Swing Blue
https://swingleft.org/

Become a Poll Worker
https://www.eac.gov/voters/become-a-poll-worker/

Voter Suppression Advocacy Groups

Common Cause
https://www.commoncause.org/

League of Women Voters
https://www.lwv.org/

Campaign Legal Center
https://campaignlegal.org/

Reclaim
http://reclaimtheamericandream.org/

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