Rolling Back Republican Voter Suppression

by Charles J. Reid, Jr. Professor of Law, University of St. Thomas 11.08.2016

Donald Trump is not an aberration in the modern Republican Party, though many would wish it were so. In fact, ever since the Republican Party chose, in the middle and later 1960’s, to adopt its infamous “Southern strategy” of coded appeals to white voters, it has been laying the foundation for the rise of a candidate like Donald Trump.

The Republican Southern strategy appeared in many guises over the last four-plus decades. One of its more recent manifestations has come in the form of restrictions on early voting and the imposition of onerous voter ID requirements. These restrictions were passed by Republican-majority legislatures and signed into law by Republican governors.

The stated explanation for these laws was the prevention of voter fraud. Plaintiffs in a number of states, however, challenged this legislation as racially motivated and discriminatory. And a series of judicial decisions, issued this summer by respected federal courts, have revealed the ugly racial politics behind the enactment of these statutes.

Let’s look at three of these states. We’ll begin with Texas. In 2011, the Republican-controlled Texas legislature enacted a strict voter identification statute. To obtain an in-person ballot under Texas law, one had to present either a valid driver’s license; military identification; a passport; a current license to carry concealed weapons; or a U.S. citizenship certificate. A voter lacking these other forms of identification could still vote if he or she obtained an “election identification certificate.”

In July, nine judges of the Fifth Circuit Court of Appeals, one of the most conservative appellate tribunals in the United States, struck down this legislation. Among the nine judges, were four Republicans. The opinion they issued was damning.

It noted that historically every form of discriminatory restriction placed on African-American voters was justified on the basis of combating voter fraud. The white primary was said to restrict voter fraud. So also was the poll tax and voter purges. None of these measures ever prevented voter fraud from occurring, but they did keep African-Americans and other racial minorities from the polls.

The Fifth Circuit viewed the new Texas law through the prism of this history. It agreed that the prevention of voter fraud was surely a worthy cause, but noted that voter identification was not an effective means of combating it. Examining a decade-worth of election returns and over twenty million ballots, the Court noted that there were “only two convictions for in-person voter impersonation fraud.”

The new voter identification requirements, however, did succeed in placing a disproportionate burden on poorer members of minority groups. These were voters who were less likely to own cars, or possess passports, or hold the other forms of identification the State now required its citizens to have. And at the same time, they often found it difficult to secure the needed birth certificates or other records, often from distant locations, to obtain an election identification certificate.

The Court indicated that the Texas legislature was warned about these disparate impacts but chose to ignore the warnings. In fact, the Texas legislature stream-lined the procedural requirements to pass the bill in expedited fashion.

The Court concluded that the evidence was “well-supported” and established that the Texas legislation had “a discriminatory effect on minorities’ voting rights.” The statute, in other words, actually succeeded in preventing a certain number of otherwise qualified minority voters from exercising their franchise as Americans.

How about North Carolina? NAACP v. McCrory, decided by the Fourth Circuit Court of Appeals this July, was a challenge to a set of “voting restrictions” put in place by the Republican Governor and legislature of North Carolina in 2013.

The Republican legislature asked for and received information regarding African-American usage of early voting and same-day registration. They were similarly well aware “that African-Americans disproportionately lacked the most common kind of photo ID.” With full awareness of the discriminatory impact of their actions, the Republican-controlled legislature then “amended the [legislation] to exclude many of the alternative photo IDs used by African-Americans.”

The Court indicated that this racial discrimination was engaged in to promote Republican partisan advantage. The State Legislature, the Court wrote, “certainly knew that African American voters were highly likely . . . to vote for Democrats. And it knew that, in recent years, African Americans had begun registering and voting in unprecedented numbers.” Indeed, Republican legislators had stated “specifically [their] concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”

Republican voter suppression, however, is not exclusively a Southern phenomenon. Let’s look at Wisconsin. This election cycle, it is fair to describe Wisconsin as ground zero for the Republican Party’s national establishment. It is home to Republican National Chairman Reince Priebus, Speaker of the House Paul Ryan, and failed presidential contender Scott Walker.

Wisconsin’s Republican-enacted voter restrictions have been the subject of two judicial opinions this summer. The first case, One Wisconsin Institute v. Thomsen considered both Wisconsin’s voter ID laws and the restrictions the State placed on early voting.

Even though the Court did not conclude that Wisconsin’s voter ID law was the product of intentional discrimination, it had harsh things to say about the motives of the Republican legislators who approved it. It found that a Republican state senator boasted that enactment of the voter ID statute “would help Republicans in the 2016 presidential election.” Another state senator bragged on a radio broadcast “that the Republican leadership passed the voter ID law for partisan purposes, not out of any legitimate concern for the integrity of Wisconsin elections.” The Court concluded: “The Republican leadership believed that voter ID would help the prospects of Republicans in future elections.”

Where early voting was concerned, on the other hand, the One Wisconsin Court did find that the State’s Republican-led Government curtailed the practice for racially discriminatory reasons. It sought specifically to restrict access to the polls in Milwaukee County, “where two-thirds of [Wisconsin’s] African-American citizens live.” A second case, Frank v. Walker, dealt with voter ID requirements but added little new.

Donald Trump’s racist appeals are, no doubt, uniquely dreadful. But those appeals arise in the context of a Party that has dabbled in racial politics in subtle and unsubtle ways since the 1960’s. The recent broadly-based Republican campaign to restrict early voting and to enact voter ID laws is just the most recent iteration of a decades-long and racially divisive Southern strategy meant to capitalize on white voting patterns.

The Republican Party is in desperate need of reform. Still, although I am not a Republican, I do not despair for that Party’s future. This election, one hopes, might be the catharsis the Party needs to start reforming itself. And a good place to start the reform process is to look back to that fateful year of 1964 and the debate over the Civil Rights Act.

For sure, Barry Goldwater opposed the Civil Rights Act, and was among those chiefly responsible for giving birth to the Southern strategy. But the Civil Rights Act would not have been passed into law but for congressional Republicans like Everett Dirksen, Jacob Javits, Hugh Scott, and Thomas Kuchel. As the Party contemplates the need to reform itself after the coming debacle, they might do well to consider those examples.

 

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