In the wake of accumulating scandals and low popularity plaguing President Donald Trump’s White House and the failures of the even more unpopular Republican Congress, Democrats eagerly anticipate huge electoral victories in the 2018 midterm elections, perhaps taking both the House and Senate.
Democrats’ high hopes for 2018 overlook one huge complication. Republicans may not allow anything resembling a free election in the 27 states where they hold complete legislative/executive control or veto-proof legislatures — or nationally, if Congress (under Section 1, Article 4 of the Constitution) imposes voting restrictions on states. Montana’s special congressional election, in which Republican billionaire Greg Gianforte defeated Democrat Rob Quist despite choke-slamming a reporter on the eve of the election, received a ton of national news coverage. But what didn’t get enough attention is that Gianforte was helped by the record-low turnout Republicans had hoped for, proving yet again that Democrats depend on vigorous voter participation.
Despite some promising recent Supreme Court rulings, Democrats may not be able to count on the judiciary to protect the right to vote. Chief Justice John Roberts declared that “nothing should be read” into the Court’s decision to let stand the Fourth Circuit’s rejection of North Carolina’s brazenly racist voting law based on narrow issues of standing, not merits.
The Court—whose newest member, Neil Gorsuch, harbors evident support for Republican-instigated voter suppression—may soon have another seat for a right-wing ideologue to fill. That eventuality, despite an encouraging ruling against gerrymandering (in which Gorsuch didn’t participate), would likely mean the rubber-stamping of almost all voter suppression tactics by the Court.
To provide the rationale for suppression, Trump has appointed a “Presidential Commission on Election Integrity” stocked with key politicians committed to disenfranchising the Democrats’ young, urban, nonwhite base. The commission chair is Vice President Mike Pence, and co-chair is Kansas Secretary of State Chris Kobach, the most extreme official champion of drastic limits on voting based on blatantly false fear-mongering.
Kobach, among many demagogueries, baselessly accused supposed illegal Somali voters of stealing an election, promised he would prosecute “hundreds” of “likely” illegal-immigrant voters, and was the source for “the president’s unsupported claim that millions of illegal votes tipped the popular vote in Hillary Clinton’s favor.” Kobach also baselessly claimed that out-of-state residents voted illegally in New Hampshire to defeat Republicans.
Armed with prosecutorial authority (the only Secretary of State so empowered) to investigate electoral fraud in his six years in office—during which a total of four million Kansans voted in general elections—Kobach identified a whopping nine cases to prosecute. Famous for being laughed out of court and destroyed by informed reporters, Kobach’s electoral “fraud” convictions consist mainly of catching elderly whites voting twice—not illegal immigrants or city-dwelling vote packers. Judges who ruled against Kobach in voting rights cases accused him of engaging in “word play meant to present a materially inaccurate picture,” including misrepresenting studies that actually show noncitizen and illegal voting near zero.
Trump’s voter-fraud commission also includes J. Kenneth Blackwell, whose former tenure as Ohio’s Secretary of State and as Bush/Cheney campaign chair brought “thousands of complaints of fraud, malfeasance, or incompetence.” Between Kobach and Blackwell, Trump’s commission is set up to weave vast conspiracies of immigrant and urban voter fraud demanding “solutions”: white-friendly ID laws, voter roll purges, and other selectively repressive legal procedures along with administrative shenanigans designed to manufacture long voter lines, truncated polling periods, and chaos in cities and on campuses.
North Carolina’s voter ID law provides the legal model, crafted from carefully researched bigotry. The Fourth Circuit Court of Appeals findings in NAACP v. McCrory should be required reading for liberals who think 2018’s elections will be free and fair. “Before enacting that law,” the court found in a detailed ruling, North Carolina’s Republican legislature
requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans . . . With race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans . . . [and] retained only the kinds of IDs that white North Carolinians were more likely to possess.
North Carolina Republicans studied five aspects of voting procedure: types of ID, early voting, same-day registration, out-of-precinct ballots, and pre-registration for teenagers. Without presenting “even a single individual who has ever been charged with committing in-person voter fraud” resulting from these procedures, the legislature then acted with “surgical precision” to restrict or eliminate only those used more by African Americans and young people.
When research showed that African Americans were more likely to use the first seven days and “souls to the polls” Sundays for early voting, Republicans eliminated only the first week and one of the Sundays of early voting. Research also showed whites were more likely to use absentee ballots, so Republicans exempted absentee voting from ID requirements — even though lawmakers “did have evidence of alleged cases of mail-in absentee voter fraud.”
Explicit voter suppression, outlawed by the Voting Rights Act and other civil rights era victories, has been supplemented by procedural suppression. Blackwell’s “intentional misconduct and illegal behavior” in Ohio leading up to the 2004 presidential election was a clinic in administratively manufactured chaos, as Mark Crispin Miller argued in a 2005 Harper’s magazine investigative piece. These concerns were backed by a federal judge’s denunciation of Blackwell’s “vigorous, indeed, at times, obdurate opposition” to compliance with state law in Ohio’s 2004 election.
As Miller noted in but one example, Blackwell engineered:
a wide discrepancy between the availability of voting machines in more minority, Democratic and urban areas as compared to more Republican, suburban and exurban areas. . . . At Kenyon College in Gambier, for instance, there were only two machines for 1,300 would-be voters, even though a surge of late registrations promised a record vote. Gambier residents and Kenyon students had to stand in line for hours, in the rain and in “crowded, narrow hallways,” with some of them inevitably forced to call it quits. In contrast, at nearby Mt. Vernon Nazarene University, which is considered more Republican leaning, there were ample voting machines and no lines.
If Trump is allowed to appoint another reactionary ideologue to the Supreme Court, or if Congress (citing the predictable “findings” of Trump’s fraud commission) enacts national restrictions on student, minority, and urban voting, then the Republicans’ past success at election-rigging will come to look like child’s play. Millions or tens of millions of Democratic votes in 2018 and beyond could simply disappear. Assuming Republicans “just wouldn’t do that” is a bygone luxury. Democrats must prepare for the worst.
But what do they do? Democrats’ voter registration, ID, and turnout drives are viable strategies; Republicans may not be able to implement widespread suppression measures in time for the 2018 election. However, more vigorous action is needed. That, as Phil Keisling argued in January, means a proactive response to expand voter rights, not continued—and potentially futile—defensive reactions.
Nineteen states allow voters to propose constitutional amendments via initiative petition by gathering requisite signatures, circumventing the legislature and governor and forcing a public vote (California, Colorado, Illinois, Massachusetts, Nevada, Oregon, Washington, Arizona, Arkansas, Florida, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Dakota). Of these, the last 12 currently are Republican-dominated.
A powerful strategy, ideal for mobilizing activists, would be to launch initiative petitions in targeted states proposing constitutional amendments to create a system of universal voter registration (implemented in Oregon and variously approved in seven other states) and voting by mail (as is now done in Oregon, Colorado, and Washington) while prohibiting various forms of voter suppression. Companion state-constitution amendments could be initiated to create independent, nonpartisan redistricting commissions to draw legislative and congressional districts to abolish gerrymandering, and to require the state’s presidential electors to vote for the national popular vote winner (states allowing constitutional initiatives by citizens hold 232 of the 272 electoral votes needed to elect the president).
None of this would be easy. These reforms would engender volcanic Republican opposition. But that could in turn further energize progressive activists and contribute to higher voter turnout in 2018. What’s clear is that it’s time—past time—to act. If Democrats’ voting is severely curtailed in 2018 and 2020, the party’s last chance to rescue anything resembling democracy may be lost for decades.