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On Wednesday, my colleague David Leonhardt wrote about the battle Democrats and Republicans are waging over voting rights. “In almost every instance,” he noted, “Democrats are trying to make it easier for Americans to cast ballots, and Republicans are trying to make it harder.”
But despite the political and epidemiological challenges arrayed against them, Americans are participating at record levels. With five days still to go before Election Day, the number of early votes cast by mail and in person, more than 80 million, has already exceeded half of the total votes cast in the 2016 election.
That amount of turnout is “stunning,” according to Michael McDonald, a University of Florida political scientist and voting expert. Does that mean the Republican strategy might be failing?
A fight in a much longer war
Even before the coronavirus, the United States had made it harder to vote than any other affluent democracy:
The United States is one of only seven countries in the 37-member Organization for Economic Cooperation and Development that don’t hold elections on a weekend or a holiday.
While many countries put citizens on the voter rolls by default or promote voter registration, signing up to vote here is a cumbersome, opt-in process.
Some Americans find out too late that they cannot cast a ballot because they lack photo ID or were erroneously purged from voter rolls, and millions more are made automatically ineligible because they were convicted of a crime.
Shortages of equipment and poll workers often cause unreasonably long waits, especially for Black voters. In the 2016 election, voters in Black neighborhoods waited 29 percent longer on average than voters in white neighborhoods, according to one study.
As the Times columnist Jamelle Bouie has argued, being forced to wait eight hours in lines to cast a ballot, as some early voters have been in Georgia, amounts to a kind of poll tax: “For most workers, time spent in line is money in the form of lost wages and labor hours. For low-income workers in particular, long lines may prove so economically ruinous that they may not vote at all. Given the uneven distribution of long lines, this is the point.”
None of these obstacles is novel, but many have become more prohibitive since the Supreme Court struck down the heart of the Voting Rights Act in 2013, which was passed in 1965 to end the de facto disenfranchisement of African-Americans. The court ruled that one of the law’s key provisions was based on outdated data and therefore unconstitutional, effectively eliminating the requirement that states with a history of racially discriminatory voting laws gain federal approval before making minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts.
The consequences of that ruling have been stark: Hours after the decision came down, Texas enacted a strict photo ID law. Other states soon followed suit, and the seven years since have seen suspect poll closures, cutbacks to early voting, an uptick in illegal voter purges and other forms of voter suppression.
Why Voting in This U.S. Election Will Not Be Equal
The first episode of our four-part series, Stressed Election, focuses on voter suppression in Georgia, where a growing Black and Latino population is on the precipice of exercising its political voice, if they get the chance to vote.
“Seven hours, 45 minutes, and 13 seconds it took for me to vote in Fulton County, Ga. As soon as I saw the line, I hit the stopwatch on my phone. I spent the first couple hours listening to a new Run the Jewels album. And then I ended up listening to the entire discography. And then I started watching season eight of ‘Curb Your Enthusiasm.’ And that’s five hours. It was one o’clock in the morning, and somebody was like, ‘Hey, y’all remember we came to vote yesterday, right?’” “Look at it.” When it comes time to vote in November, would you rather stand in a line like this … “Somebody please help us. We are at our polling place in Atlanta, Fickett Elementary School. The systems are down.” … or like this? “Oh look, there’s no line. There’s no line at all out here in suburban white country.” Seven years ago, a controversial Supreme Court ruling struck down a key part of the Voting Rights Act. “If you hear me, the voting machines were not working.” And after that, many states passed laws that ended up making it harder for people of color to vote. “We have all these barriers that aren’t in place for other people. It’s 2020. Why is it this difficult for someone to go to and vote?” To understand why, we go to Georgia. “I think Georgia has become a kind of hotbed for voting rights questions.” “How voting takes place has become one of the most explosive issues in Georgia. Georgia is the largest state by landmass east of the Mississippi River. It’s dominated by the reality of Atlanta. It’s multicultural. It’s growing. It’s dynamic, this sort of throbbing megalopolis where you’re seeing Democrats in large numbers. And then beyond these urban centers, you have a much more traditional, rural Georgia, where you have seen a massive shift of white voting behavior from conservative Democrat to full-on Republican.” Georgia has historically been a pretty conservative state, but as it becomes more culturally and racially diverse … “In this presidential election, there is some thought that Democrats have a shot here.” … but one fact still remains. “Republicans control the State House. Republicans control the Legislature, and they are free, frankly, to implement the voting laws they see fit.” As Republicans fight to remain in control of the state, some say it’s no longer a fight over who people vote for, but who is allowed to vote. The U.S. Commission on Civil Rights, an independent federal agency, says these are the five most common voter suppression tactics. They happen across the country, but the only state that has ticked every box is Georgia. “The term voter suppression —” “Voter suppression.” “Voter suppression.” “Voter suppression.” ”— embedded in that word is the very question of what the motivation is for these kinds of laws and procedures.” “The Republican argument, that they say, is that they are worried about voter security. They are worried about voter fraud.” “Voter fraud is all too common.” “We don’t have evidence of that.” “And then they criticize us for saying that.” “Federal law actually requires us to make sure that we keep our voter rolls updated, clean, fresh and accurate.” Secretary of State Brad Raffensperger is Georgia’s lead elections official. It’s his job to maintain the state’s voter lists. “Many people don’t realize that, nationwide, about 11 percent of all people move every year. And that’s why you want to update your voter rolls. We just send notices out to people that haven’t voted for a long period of time.” “There’s an argument to be made that purging voter rolls serves a legitimate purpose. And that is to make sure that people are alive. The counter-argument, of course, is that these voter rolls in some states are being aggressively purged by Republicans in an effort to keep them from coming to the polls.” In 2017, 560,000 voters were purged from Georgia’s voter rolls. A report later found that Black voters were purged at a higher rate in more than half of Georgia’s counties. “This is happening in the context of the American South, where there is a long and well-documented history of using trickery.” “The kind of Jim Crow-era — things like poll taxes —” “— voting tests, literacy tests to keep people of color away from the polls.” “You know, it’s important to recognize that, until the 1960s, African-Americans were pretty much shut out of voting in the state of Georgia. That began to change when the Voting Rights Act was passed in 1965.” “Voting Rights Act of 1965 basically says that states cannot make laws that infringe on people’s rights to vote.” A key part of the law with something called Section 5 preclearance, which said — “States with a history of racist legislation cannot make laws that infringe on people of color without the federal government’s permission.” After the Voting Rights Act passed in 1965, the number of African-Americans who registered to vote in Georgia doubled. “It changed Southern politics.” “At the most basic level, bigger participation from Black Americans.” And for a while, that’s how things went. But … “It’s not as if the South loved the preclearance.” Many of the states felt it was an unfair burden, especially when voter participation increased. “What was true is that they, frankly, couldn’t do much about it.” Well, until a challenge to the law brought the issue all the way to the Supreme Court. Announcer: “— the 1965 Voting Rights Act.” [crosstalk] “Shelby v. Holder.” Shelby v. Holder. “I just get wound up when you ask me about voting rights.” Here to help explain is Debo Adegbile, the lawyer who argued that preclearance was still necessary. But the other side argued that the standards used to measure discriminatory voting practices were outdated. In a 5 to 4 decision, the justices ruled to strike down the preclearance, which effectively meant that states could pass new voting laws without federal oversight. “So it was a resounding loss, and perhaps one of the most significant civil rights decisions of the United States Supreme Court in recent memory.” “The decision of Shelby took away the federal government’s most effective tool in regulating state voting rights.” “After the Shelby decision, there were almost immediate attempts to change the way voting works.” Some states passed voting legislation just hours after the ruling. Alabama implemented new voter ID laws. North Carolina eliminated seven days of early voting. And the list goes on. “Without the preclearance provision, there were many, many elections where those discriminatory laws affected our politics.” Voting rights advocates say this was a key ruling that had the power to impact the outcome of an election. And that’s what many believe happened in Georgia in 2018. “The governor’s race in Georgia in 2018 was …” “Bitter.” “On one side, you had …” “I’m Stacey Abrams, and I’m running for governor. I have a boundless belief in Georgia’s future.” “Her strategy was based on signing up people of color. And then on the other side …” “I’m Brian Kemp.” “— because you’re a proud, hardcore Trump conservative on spending, immigration and guns.” “So you had a secretary of state, who had come under criticism for voter suppression, running the election that he’s in.” “That puts them at odds.” “We’ve seen jurisdictions consolidate and close precincts. We’ve seen voter ID laws come into play. There was a system in Georgia called Exact Match, where if your information doesn’t 100 percent match databases that the state uses, that you can be purged from the voter rolls. That tends to target people with ethnic names. A lot of these new suppression schemes seem race-neutral, but they have the same impact.” “Georgia has 159 counties.” “It’s a staggering number of counties.” “And we are hearing reports from all over the state.” [phones ringing] “There was a county in Georgia called Randolph County.” “Randolph County tried to close seven out of nine —” “Seven out of the nine.” “— polling places in a county that’s 60 percent Black.” “Jeff Davis County polling location consolidations. I mean, I should say that, like, this could take a while.” “Chatham County allowed the city of —” [crosstalk] “Fighting voter suppression is very much like fighting a hydra. You chop off one head, and three grows in its place.” Here’s one impact: The 2017 Exact Match law prevented 53,000 Georgians from having their registrations accepted. Nearly 70 percent were Black. “The evidence is very clear to us that the ones most impacted by these new laws are Black Georgians, are people in Democratic communities.” All of this results in a contested election. And then … “But I’m here tonight to tell you, votes remain to be counted.” “Make no mistake, the math is on our side to win this election.” “So Brian Kemp squeaks out a victory.” “And he is now the governor of Georgia. It was two figures who have represented the opposite sides of the voting rights argument.” “The question that dogged Georgia throughout 2018 was whether or not these tactics were fundamentally fair.” “So what happened in 2018 really is a preview, where democracy is under a stress test.” One that may get even more stressed in the lead-up to 2020, with the added elements of coronavirus and a country on edge after nationwide protests. “If you want change in America, go and register to vote. Show up at the polls on June 9.” In April, in response to the pandemic, Georgia Secretary of State Brad Raffensperger sent out absentee ballot applications to nearly seven million registered voters in an attempt to reduce in-person voting. “And what that really has done is it’s taken the pressure off it today, so that instead of having those, you know, million people that were voted absentee show up today, we now have something that is more manageable.” But many of those absentee ballots were never delivered. In Atlanta, this contributed to Election Day wait times that were reminiscent of 2018 and 2016. “We got here before six o’clock this morning.” “Since six this morning. It’s almost 9 a.m., and I have not moved.” In Fulton County, Georgia’s largest, election director Rick Barron had to contend with both a 9,000 percent increase in absentee ballots, and the rollout of a new voting machine system. “We became an absentee-by-mail state. We still had to do our full complement of Election Day infrastructure. We did our early-voting infrastructure. And it stretched us.” With many usual polling sites, like churches and schools, dropping out because of the pandemic, an estimated 16,000 voters in Fulton County were redirected here, to this restaurant, Park Tavern. “Take a look behind me. This is the Park Tavern precinct.” “This polling place is serving multiple locations that are supposed to be separate locations.” And these problems stretched all across metro Atlanta. “The impact of having problems at the voting booth in high-density areas in Georgia means that people of color are going to be disproportionately affected.” One study showed that in communities where more than 90 percent of registered voters were minorities, the average minimum wait time at the polls was 51 minutes. When whites made up more than 90 percent of voters, it was just six minutes. “So how are things running now?” “Well, by and large, they’re running very smoothly throughout the state, except, obviously, Fulton County has had multiple failures.” Each county in Georgia runs its own election, with Georgia’s secretary of state as the top official. But after the massive failures in the primary, a blame game commenced. “They should be embarrassed with their performance.” “Whatever Secretary Raffensperger’s opinion is, he’s the head election official in the state, and he can’t wash his hands of all the responsibility.” “In this environment, incompetence does have the effect of voter suppression.” Things would have looked different before the Shelby decision. Even in an emergency situation like the pandemic, the implementation of all of these changes — new voting machines, poll place closures and the absentee balloting — still would have required federal oversight through Section 5 preclearance, meaning voters of color would have had … “A front-end protection that stops discrimination before it can take root. What we’ve lost with the Shelby County ruling is that, now when changes are made to take account of the public health crisis, they are not being made toward, are those changes harming minority voters.” Which means … “Your only option, now, is to go case by case, to try and find every bad thing that’s happening and try and figure out if you can bring a case to stop it. That’s costly. Litigation is slow. Can they happen quickly enough in proximity to an election to make a difference?” “Voting rights and questions of voter suppression are not limited to the South. It’s happening in Texas, in Wisconsin, Ohio, Pennsylvania, and other places. The political power of 1776 to 1960 was one that excluded huge communities of people in this country. And so history tells us the same thing the current day tells us. If you are Black, brown in this country, to exercise your democratic rights is harder than if you are white. It’s not just a foregone conclusion that everyone who is an American gets to vote.” “You know, this is America. We can put a Tesla in space, but we can’t vote? I mean, what do we think is going to happen in November?” “This is Alex.” “And I’m Kassie.” “We produced this episode of Stressed Elections.” “There’s a lot going on in this election, and we want to make sure we take a deep dive into the major issues. So stick around for the next episodes.” “We’re going to cover voting technology, disinformation and voting by mail.”
The pandemic factor
When the coronavirus crisis hit, states took measures to facilitate safer elections, like expanding the use of absentee ballots and early in-person voting, which opened a new front of legal contestation. As of last week, lawyers have filed more than 400 lawsuits, across 44 states, over issues related to pandemic voting:
In Wisconsin, Republican officials have fought to discount any mail-in ballots that arrive after 8 p.m. on Election Day, a move the Supreme Court upheld on Monday. In an opinion that mirrored President Trump’s rhetoric, Justice Brett Kavanaugh argued that counting absentee ballots after Nov. 3 could sow “chaos” and “potentially flip the results” of the election. (In her dissent, Justice Elena Kagan responded that “there are no results to ‘flip’ until all valid votes are counted.”)
In Texas, Greg Abbott, the Republican governor, cited largely baseless claims of voter fraud as a justification for imposing a limit of a single drop-off box for absentee ballots per county, including the state’s largest, Harris, which is home to 4.7 million people. On Tuesday, the Texas Supreme Court upheld the policy.
In Pennsylvania and North Carolina, two key swing states, Republicans have challenged laws extending the period for accepting mail-in ballots after Election Day. But on Wednesday, the Supreme Court upheld the new deadlines.
The effort to discredit and discourage mail-in voting is being spearheaded by President Trump, but as The New York Times Magazine documented in a five-month investigation, it is also the culmination of a decades-long disinformation campaign by the Republican Party and others to suppress votes, especially those cast by Black and Latino Americans.
That is not to say voter suppression is just a red-state issue. New York, despite its progressive reputation, has had some of the most restrictive election laws in the nation, and New York City’s politically unaccountable Board of Elections is uniquely plagued by nepotism and dysfunction. During early voting this week, many city voters — including the mayor, Bill de Blasio — reported having to wait hours at the polls, in violation of state regulations. “The powers that be don’t care,” the director of a state government watchdog organization told The Times.
Reading the turnout tea leaves
The high levels of early turnout now on display have raised questions about whether the Republican strategy to suppress the vote is backfiring. In Texas, for example, Governor Abbott’s emergency declaration limiting drop-off sites for absentee ballots may have galvanized voters in Democratic-leaning areas like Harris County, whose early vote count as of Wednesday was rapidly approaching the total number of ballots cast there in the 2016 election.
“Efforts to suppress votes in Texas and across the South have very often been done in secret, in smoke-filled rooms, in ways the public can’t fully digest,” Chris Hollins, the county clerk of Harris County, told Mother Jones. “When it’s thrown in your face like it has been this election season, voters are responding by saying, ‘I’ll show you,’ and coming out in record numbers to have their voices heard.”
What’s more, in states where party registration data is available, about 47 percent of all early voters have been Democrats, while just about 30 percent have been Republicans, suggesting that Democrats are banking an early advantage. That discrepancy may reflect in part the mistrust of mail-in voting Mr. Trump has generated in his base, which his campaign and its surrogates are now spending millions attempting to counteract.
Yet the polarization of the use of mail-in ballots is also what gives some Democrats concern: Mail-in ballots have a higher rate of rejection than those cast in person, as Thomas B. Edsall writes for The Times. In Pennsylvania alone, more than 100,000 mailed ballots may be thrown out because of a court ruling on an envelope policy.
Wisconsin, Pennsylvania and parts of Michigan — three important battleground states —also won’t start counting mailed ballots until Election Day. Because those votes could take days or weeks to process, the results reported there on Nov. 3 are more likely to show early leads for Mr. Trump, who might take it as an opportunity to declare premature victory.
That would be a “doomsday scenario” for Democrats, and it’s certainly one that lawyers in both parties are preparing for. In the meantime, the most responsible option for voters and observers might be to take a step back from the prediction business. “It’s lazy to simply throw up one’s hands and say we don’t know what will happen, so feel free to call me lazy,” writes Philip Bump at The Washington Post. “We don’t.”
Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.
MORE ON THE ELECTION
“Trump Isn’t the First Conservative to Try to Limit the Vote” [The New York Times]
“How Long Will Vote Counting Take? Estimates and Deadlines in All 50 States” [The New York Times]
“Facing Gap in Pennsylvania, Trump Camp Tries to Make Voting Harder” [The New York Times]
“Biden Is Not Out of the Woods” [The New York Times]
“The State That Could Decide How Far Republicans Will Go to Win” [The New York Times]
WHAT YOU’RE SAYING
Here’s what readers had to say about the last edition: Three paths for reforming the Supreme Court.
Viki from Colorado: “In my mind, one of the big problems is that we allow Supreme Court justices to be approved on a simple majority of the Senate. … If we required two-thirds, or even more, the nominated justice would need to be more moderate to appeal to both sides of the aisle.”
John from North Carolina: “Article III states, in part, ‘Judges … shall hold their offices during good behaviour.’ Good behavior is not defined. It is common practice in most endeavors to subject subordinate employees to a periodic review of their job performance, often annually. Since the Senate approves the appointment of a judge, it seems appropriate for the Senate to periodically review the performance of judges to determine if they are exhibiting good behavior.”
Darcy Harris, a professor in the thanatology program at King’s University College at Western University, from Canada: “One major change affecting life appointments is the increased longevity that is now a part of normal life in developed countries. Where a Supreme Court judge may have lived for 10-15 years max after being appointed to the Supreme Court prior to 1900, it is now an expected prospect that people live well into their 80s and 90s, which could mean life tenure for more than double the amount of time now than in the past when the Constitution was written.”
Peter from Australia: “Appointing anybody to any position for life is incredibly stupid.”