Today is a big day for voting rights. And it’s not much of an exaggeration to say that this somewhat arcane issue that most people pay little attention to will over the course of the next couple of years help determine the course of American democracy.
On a case the Supreme Court is hearing today out of Ohio, combined with a case just decided in North Carolina and other voting issues that are in the pipeline, we have to decide a fundamental question: Are our elections going to be fair and open, or are we going to allow whichever party is in power at a particular moment to rig the system in their favor? It’s really no more complicated than that.
Let’s begin with what happened in North Carolina. On Tuesday, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit struck down the congressional districts drawn by Republicans in the North Carolina legislature on multiple grounds, most importantly that the GOP map violates the 14th Amendment’s guarantee of equal protection by effectively depriving Democrats of representation in Congress. Though North Carolina is a closely divided state (Donald Trump won there in 2016 by less than four points, while voters elected a Democratic governor), the state currently has 10 Republican House members and only three Democrats.
This case is unusual because up until now, the Supreme Court has refused to invalidate district maps that discriminate based on partisanship — but they may be ready to do so. In October the high court heard a case about the Wisconsin state legislative district maps, which Republicans drew with such efficiency that they were able to retain large majorities in the legislature even when more Wisconsinites voted for Democrats in state legislative races.
In that case, which hasn’t yet been decided, there seemed to be a majority — consisting of the four liberal justices plus Anthony M. Kennedy — in favor of establishing that partisan gerrymandering can at least in theory be declared invalid. The question we don’t yet have the answer to is whether Kennedy will be satisfied that a consistent standard can be devised that will allow courts to distinguish maps that are too partisan.
But in North Carolina, the Republicans did the judges a favor by not bothering to hide their intentions:
Tuesday’s decision was made easier for the panel by a kind of smoking gun: Republican leaders in the North Carolina General Assembly openly conceded that the 2016 map was drawn to benefit Republicans.
They hired a consultant from the Republican National Committee to draw the map and excluded Democrats from the process, the court panel said. That consultant, the court said, testified that he was told “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”
“Rather than seeking to advance any democratic or constitutional interest,” the panel wrote in a lengthy opinion, “the state legislator responsible for drawing the 2016 plan,” Rep. David Lewis, openly declared that he drew the map to advantage Republican candidates because he thinks “electing Republicans is better than electing Democrats.”
The only difference between that case and the various kinds of vote suppression that Republicans have so aggressively undertaken in recent years is that in North Carolina they admitted what everybody knows they’re doing. In other cases, like with voter-identification laws, they pretend that they’re trying to stop phantom “voter fraud,” when everyone knows that the point is to keep people likely to vote for Democrats — especially African Americans but also poor people, college students and urban dwellers — from voting.
Which brings us to today’s case at the Supreme Court, which turns on this question: Is the right to vote subject to “use it or lose it”? If you fail to exercise your right to vote, can your state toss you from the rolls and make you jump through hoops to restore your access to the ballot?
That what the state of Ohio is arguing it has a right to do; it’s Ohio’s system of purging voters from the rolls that is being tested. Ohio’s purge system is absurdly strict, as though it were designed to throw as many people off the rolls as possible. If you fail to vote in a two-year period, your local election board sends you a letter threatening to remove you from the rolls, and if you don’t return the letter, you’re targeted for purging. That means that staying home for a single midterm election can trigger a series of events that results in you losing your right to vote. You can get it back, but that may not be until after you’ve tried to vote and found that you won’t be allowed to in that election.
You might be wondering why this should be a partisan issue. Wouldn’t all voters be at risk of being purged? You might think so, but in practice, likely Democratic voters — especially those who are African American and/or less affluent — are more likely to be purged. As Reuters reported in 2016:
The disparity is especially stark in Hamilton County, where affluent Republican suburbs ring Cincinnati, which has one of the highest child-poverty rates in the country. In the heavily African-American neighborhoods near downtown, more than 10 percent of registered voters have been removed due to inactivity since 2012. In suburban Indian Hill, only 4 percent have been purged due to inactivity.
Some Republican voters will get caught up in the purge, but as long as more Democrats are getting their voting rights cut off, the GOP comes out ahead. Which is the whole point.
“Purges are very likely to be the next big method of voter suppression,” an attorney at the Brennan Center for Justice told me last week, and it’s no accident that this system was put in place by Republicans and almost all the states supporting Ohio’s position are also run by Republicans. The Obama Justice Department had opposed Ohio on this case, but the Trump administration reversed that position.
If you combine voter purges, partisan gerrymandering and the voter-ID cases working their way through the courts, we’re looking at two starkly different futures. In one, states are forbidden from unreasonably tossing people off the voter rolls, legislative maps have to be drawn in ways that don’t give unfair advantage to whichever party is drawing the map, and legitimate voters don’t find one hurdle after another placed in their path to the voting booth. In the other, your right to vote can be snatched away, at least temporarily, if you don’t take a bunch of state-certified steps to maintain it; parties will be free to draw districts in a way that shuts out almost any possibility of the other side winning representation; and voters from the opposition party find it harder and harder to vote.
The bleak future that Republicans want to bring about is why Democrats are pursuing an aggressive voting rights agenda that goes beyond fighting Republican vote-suppression measures to include proposals such as automatic voter registration, expanded vote-by-mail and early voting, and the restoration of voting rights for ex-felons who have served their time. But right now Democrats can pass those measures only in the relatively small number of states where they have complete control.
Finally, there’s something important to understand about the partisan motivations at work and why we need to resist the impulse to characterize this issue as he-said, she-said. As you listen to the arguments Republicans make, it quickly becomes obvious that almost every justification they offer for the vote-suppression measures they support is made in bad faith. There’s no “voter fraud” epidemic, there’s no burning need to throw millions of names off the voting rolls, and even if the Supreme Court were to allow it, there’s no reasonable justification for partisan gerrymandering (even when Democrats do it, as they sometimes do) aside from pure power politics.
And what about the other side? Yes, if Democrats get their way on these issues, they’ll have a better chance at winning power than they do now. But that’s because the system has allowed for a great deal of distortion in ways that help the Republican Party. Democrats aren’t proposing to disenfranchise Republican voters in order to achieve their political goals. Every position Democrats as a whole are taking is about making the system more open, more fair and more universal. So if they get their way, we’ll have a much healthier democracy.