The Republican party cannot win elections if everybody eligible to vote actually votes and has their votes counted. Republicans do not intend to lose elections. This is not a vexing paradox for GOP strategists. Instead, it’s a solvable problem that requires only voter suppression, rubber stamped by courts stacked with Republican operatives.
Their plan is working. Liberals have spent an incredible amount of time over the past two years worrying if the Russians are going to “steal” another election. Republicans have been working to steal the election for themselves, with or without help from Moscow.
It’s a three-pronged plan and has been devastatingly effective.
Attack 1: Make sure Republicans are the elected officials in charge of elections.
You’d think that liberals would have learned the lesson from the Katherine Harris experience during Bush v. Gore. Harris was the Florida Secretary of State, and used that position to help George W. Bush win Florida. People have somehow forgotten that Harris certified the election results, BEFORE the recount was finished, which triggered the lawsuit that became Bush v. Gore. People have forgotten a lot of things from Bush v. Gore. The Republicans never do.
Fast forward almost two decades later, and you can see almost nothing has been done to prevent partisan state officials from controlling elections. In Georgia, Stacey Abrams is in a tight race to become the first African-American governor of the state. Her Republican opponent, Brian Kemp, just also happens to be the Secretary of State for Georgia. Using that authority, he has stalled 53,000 voter registration applications. Reports indicate that 70 percent of those applications are from black voters.
Civil rights groups have sued Kemp. But, how confident are you that there is any court untainted by Trumpism and the kind of partisan operatives Trump has been appointing at a record pace?
You’re not going to get a Democratic governor of Georgia if black people in Georgia can’t vote. Republicans know this. That’s why those applications are stalled.
It’s important to note that if you are in Georgia, you can still vote, you just have to bring all of your identification with you. Unfortunately, poor and rural voters are less likely to have identification, and less likely to know exactly which forms to bring to the polls. Republicans are counting on this.
Attack 2: Purge voters
Making it more difficult for people to vote is a good strategy. And even better one is straight-up refusing to let people vote. Last term, the Supreme Court told states that it was okay to conduct voter purges to suppress voting of people who don’t vote in every election. Justice Samuel Alito wrote for the 5-4 majority in Husted v. A. Philip Randolph Institute. Here’s how I explained Alito’s subtle reduction of voting from a “right” to a “policy.”
It is axiomatic to say that voting is at the very heart of republican government. Hell, there is no such thing as “republican government” without voting. Who gets to vote, and how, is the most crucial Constitutional question OF ANY CONSTITUTION.
Alito shuttles this critical question under the rubric of a “policy disagreement” to separate it from mere statutory interpretation and application. In his view, Congress gets to make “policy,” courts merely interpret it. To agree with Alito, you too have to think voting is a mere policy choice. “Should everybody vote?” Policy. “What if only white people vote?” Policy. “How about everybody votes but the votes of rich white men count twice?” Good policy.
A report came out this week that the state of Indiana has purged 469,000 voters since the 2014 midterms. That’s nearly 10 percent of the eligible voter population in Indiana. Apparently, 20,000 were purged after a court order telling them to stop.
Indiana is a low-key swing state. It’s more like Ohio than Kentucky. That’s why it’s useful for Republicans to employ the same tactics in Indiana as they do in Ohio. Democrat Joe Donnelly is in a dead heat against Republican challenger Mike Braun there. Those 20,000 votes could absolutely matter, to say nothing of the nearly half a million people who thought they were registered but have been purged in the last four years.
The deadline to register to vote in Indiana was October 9th. The report about Indiana voter purges came out on October 9th. The Republicans know exactly what they are doing.
Attack 3: When in doubt, use Jim Crow policies
The 24th Amendment was ratified in 1964 and specifically abolished the poll tax. In 1965, President Lyndon Johnson signed the Voting Rights Act. It was a victory over the Confederacy that Abrahama Lincoln never achieved.
But the forces of white supremacy do not retreat, they reload. Fast forward to 2012, and Republicans were finally able to gut the Voting Rights Act. Chief Justice John Roberts did the work in Shelby County v. Holder. It allowed states to change their voting laws, without preclearance from the national government. Roberts, by fiat, decided that racism was no longer that big of a problem in the South.
John Roberts has been an enemy of black people who want to vote since he got on the Court. Much of the voter suppression we see today is a direct result of Roberts’s jurisprudence.
While laws can be changed, Amendments are supposed to have more staying power, right? Not when it comes to minorities voting. Just as the Jim Crow South completely ignored the 15th Amendment for 100 years, now some states are trying to make an end-run around the 24th Amendment. In North Carolina, their photo ID laws are a poll tax hiding in plain sight. To get the new photo ID needed to vote, you have to pay the state $10.
Now, $10 might not seem like a lot of money to you or me. But remember the poll taxes themselves were nominal fees. Their point wasn’t necessarily to make voting “expensive.” You don’t have to make voting expensive to discourage people from voting.
All you have to do is add another hurdle to voting, and monetary ones, even if small, have the desired effect. In this story, a 60-year-old woman explains how she had to save up the $10, plus the bus fare, plus the time to get it all done, in order to get her photo ID. It took her three months, all-in, to get the new ID.
What’s most frustrating is that Republican justices like Roberts will end up using this woman’s heroic efforts to get the ID as a data point to say that the ID requirement is not an illegal restriction on voting. Republicans know well how to use the efforts of successful blacks to denigrate the condition of everybody else. Roberts will figure out a way to say that the ID law isn’t an unconstitutional poll tax because the fee applies to the ID, not the vote, and then say that the ID law isn’t an undue burden on voting, because 60-year-old women can spend three months saving $10 if they really want to vote.
Democrats spend a lot of time telling people to “get out and vote.” But when people do overcome ridiculous obstacles to put Democrats in power, they do nothing to make it easier for people to vote. I speak from experience. I live in New York, and Democrats are in some form of power here almost all of the time. Do you know how many early voting days I have in my state? Zero. Do you know when I have to be registered by in order to vote in November? Today. Do you know how many voters were purged from the rolls in New York City before the 2016 elections? Nearly 200,000.
When Republicans are in power, they do everything they can to ensure that people who would vote them out of power are not allowed to vote anymore. Their strategy is working as intended. They’re sitting on their throne like Emperor Palpatine, telling Democrats “we are quite safe from your pathetic little band.”
Pray that overconfidence is their weakness because November 6th is setting up like a trap.
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at firstname.lastname@example.org. He will resist.