Only You Can Prevent Voter Suppression

 My wife and I have just spent an hour at the kitchen table, writing postcards to total strangers. We are two of thousands of people in this election season doing the same. Many of you will know the drill. We write to tell people that they may have been purged from the voter rolls and how to reregister to vote. We write to provide information about early voting. We write to inform about upcoming primaries. We try to inspire, as much as hastily written postcards from unknown writers can. “Your vote is your voice!” “The November election is crucial!” We punctuate with exclamation marks!

 We’re volunteers with Reclaim Our Vote, but we could also be working for Swing Left, Vote Forward,[1] and many other organizations[2] that write postcards and letters, make calls, text, all with the aim of encouraging voter turnout. It sounds like a grand success story for our democracy: voter-to-voter contact to get people to participate in that most democratic of all institutions.

 But it also reveals our democracy’s failure. The US has among the lowest voter turnout of any developed democracy.[3] Part of the problem is the malfeasance or neglect of some government officials overseeing our elections. Do-it-yourself democracy fills a void that our government leaves.

 One of the problems is that in the US, unlike in most other functioning democracies, elections are mainly run by partisan secretaries of state – the umpire is also a player.[4] Many are conscientious stewards of their elections, but in some places, election officials have gotten busy making it harder for some people to vote. Gone are the bad old days when election officials overtly stopped black people from voting through poll taxes, absurd tests, violence and intimidation. Today the efforts are subtler, including burdensome voter ID laws, purges of voter rolls, and closing of polling places in Black and Brown neighborhoods.

 Nor can the courts these days be trusted with protecting voting rights. The above voter suppression efforts have skyrocketed since the conservative majority decided Shelby County v. Holder (2013). [5]  In that case the court rendered inoperative the principal tool of the Voting Rights Act, which required jurisdictions with a history of racial discrimination in voting to clear any changes in their voting procedures with the Justice Department.

 The potential for voter suppression is greater in this pandemic: Jurisdictions hostile to voter turnout and apathetic courts can simply refuse to accommodate the special circumstances created by the crisis. Such was the case in Wisconsin. An order extending the vote-by-mail deadline from April 7 to 13 was issued by the District Court on the grounds that, given the Covid-19 emergency, not allowing an extension to permit those who were originally planning to vote in person but now sought to vote absentee would lead to the disenfranchisement of a significant number of citizens. The Republicans opposed any postponement, seeking to suppress voter turnout in the Democratic primary in order to defend a Wisconsin Supreme Court seat. The US Supreme court overturned the lower federal court in a 5-4 decision, relying on Purcell v. Gonzalez, 549 U.S. 2 (2006).  In Purcell, the Supreme Court said basically that courts shouldn’t intervene to change the rules shortly before an election, because that could give rise to voter confusion. In that case, the judicial intervention was prompted by a lawsuit challenging a voter ID law that had been on the books for two years. But in the Wisconsin case, the intervention was occasioned by a dire health crisis that ordinary citizens didn’t see coming even a month before the election – a very different situation. As Ruth Bader Ginsburg wrote in dissent, under the majority ruling, Wisconsinites “will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”

The court seemed to be applying the same principle when, without explanation, they voted to stay, pending appeal, a lower court decision in Texas that would allow voters under 65 to vote by mail without giving a reason. The court also stayed a lower court decision out of Alabama that struck down for voters 65 and older the requirement that voters submitting absentee ballots must have a photocopy of an ID and that the ballot must be signed by a notary or two witnesses.

So the Supreme Court majority has made clear that they generally won’t permit lower courts intervening to make voting easier, not even during a public health crisis. Which gets back to where we started. If election officials and judges won’t protect voting rights, it’s up to nongovernmental organizations and the citizen volunteers who help them. In other words, you and me.  

Which reminds me. I have a few more postcards to write. The script starts off with, “The November election is crucial!” Isn’t that the truth! Won’t you join me?

[2] For a listing of other organizations doing important anti-voter suppression work,  see https://www.bustle.com/p/8-voting-rights-organizations-to-know-before-the-2020-elections-roll-around-13156367

[3] Pew Research Center, U.S. Trails Most Developed Countries in Voter Turnout, https://www.pewresearch.org/fact-tank/2018/05/21/u-s-voter-turnout-trails-most-developed-countries/

[4] Miles Parks, Partisan Election Officials Are 'Inherently Unfair' But Probably Here To Stay, November 29, 2018, NPR, https://www.npr.org/2018/11/29/671524134/partisan-election-officials-are-inherently-unfair-but-probably-here-to-stay.

[5] See P.R. Lockhart, How Shelby County v. Holder Upended Voting Rights in America, Vox, July 23, 2019, https://www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress.

                                                                                            Robert Katz

 Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County. He has a Master’s Degree in Political Science from UC Santa Barbara and a JD degree from Stanford Law School.

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