In the federal government and in most states, there are consequences when governments deprive Americans of their constitutional right to liberty — through, say, wrongful imprisonment.
So why aren’t there more meaningful consequences when states deprive Americans of their constitutional right to vote?
Again and again, “voter fraud” has been shown to be virtually nonexistent. Yet in the name of eradicating this imagined scourge, state officials around the country have been systemically and aggressively disenfranchising American citizens. To prevent a handful of votes from possibly being cast illegally, officials purge thousands of eligible voters from state rolls, toss ballots and pass modern-day poll taxes.
This year alone, at least 99 bills restricting access to registration and voting have been introduced in 31 states, according to New York University School of Law’s Brennan Center for Justice.
And this doesn’t even capture the full extent of voter-suppression efforts, given that some changes have been done administratively rather than through legislation.
A few states have proven to be especially bad actors.
In the 2016 election, for example, Kansas threw out more than three times as many ballots as any similarly sized state did, according to a recent Associated Press analysis.
Some Kansans’ ballots were tossed as a result of recent policy changes. But others were eliminated because of a stupid software bug. That is, some people arrived at the polls incorrectly believing they had already legally registered, because the state’s online registration system had mistakenly told them so. This glitch had been happening for months before the general election, according to emails obtained by the AP.
All this occurred of course under the leadership of Kansas Secretary of State Kris Kobach (R), now spearheading President Trump’s “election integrity” commission.
Texas has likewise repeatedly tried to suppress minority (and predominantly Democratic) votes.
On Wednesday, a federal court struck down the state’s voter ID laws, which the judge determined had been “enacted with discriminatory intent — knowingly placing additional burdens on a disproportionate number of Hispanic and African American voters.”
The same court had previously found the state’s voter ID law discriminatory in 2014, and Wednesday’s ruling determined a new, watered-down version was no better. While a challenge had been working its way through the judicial system, a “discriminatory” law was in effect for multiple statewide elections.
Where is the justice for those denied suffrage in Kansas, Texas and other states?
Their elections are effectively tainted, but they’re also over. Nothing to be done about them now.
There should be, though.
If we want state officials to stop erring so often on the side of disenfranchising voters, we need to change their incentives. That is, we need to start punishing them for illegally denying Americans the right to vote, rather than just have courts say, “Hey now, don’t do that again.”
The costs are much too low for public officials who, whether deliberately or mistakenly, disenfranchise Americans.
On very, very rare occasions, if a plaintiff can prove that an election was sufficiently tainted, a judge could order a new election. Also on very, very rare occasions, individuals can be charged with a criminal offense if they can be proven to have intentionally interfered with someone’s votes.
But for the most part, policies that systemically disenfranchise thousands of voters — and in the process, possibly swing election results — go unpunished.
Any remedies that do occur are generally forward-looking. That is, a state’s bad law or administrative policy gets struck down, and officials are just forced to do things differently in the next election.
In which case, state officials might respond by introducing a new bad law, a la Texas.
One way to change the system would be for courts to more often grant preliminary injunctions against new election laws undergoing a legal challenge.
“Once the damage is done you can’t really adequately repair it,” says Wendy Weiser, director of the Brennan Center’s democracy program. Courts could recognize this and err on the side of keeping the status quo, at least temporarily.
This would address only deliberate policy changes, though, not incompetence (as in Kansas’s software glitch). So why not raise the possible costs to getting things wrong, to change the calculus?
Congress or state legislatures could, for example, pass laws making it easier for state officials to be held liable for monetary damages if they have illegally denied someone their right to vote. Right now these officials likely have qualified immunity from such suits, according to Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.
For American citizens, voting is a sacred and constitutionally enshrined right. It’s time the country, and those paid to serve the public, actually treat it as such.