Analysis Law and Policy

Under a Trump Administration, the Power of the Vote Is in Increasing Danger

Lisa Needham

Last week, Trump's Department of Justice backed a Texas voter ID law that remains reprehensible in its scope.

It hasn’t even been two weeks since Kris Kobach, Kansas secretary of state and co-chair of President Donald Trump’s Election Integrity Commission, asked for complete voter data from all 50 states. At first glance, it seemed like a terrific miscalculation and overreach by Kobach, the king of voter suppression, as 44 states either entirely refused to turn over data or refused to turn over some portion of it. However, the drama over the fallout from that request is masking the fact that voter suppression—the real goal of the commission, and of the Trump administration overall—proceeds apace. Last week, for example, Trump’s Department of Justice (DOJ) backed a Texas voter ID law that remains reprehensible in its scope.

The stated goal of the Election Integrity Commission, of course, is to root out voter fraud—something that is both incredibly rare and impossible to do on a scale large enough to tip an election. Under those auspices, however, a spokesperson for Vice President Mike Pence says the commission will compare voter data it collects to “a number of different databases, looking for the possibility for areas where voter rolls could be strengthened.”

Pence’s spokesperson declined to name every database the data would be run against, but the commission did confirm it would run data against the federal government’s database of non-citizens, including green card and temporary visa holders and undocumented immigrants. Under President Barack Obama, the Department of Homeland Security (DHS) provided information stating that simply because that database was unable to confirm citizenship “does not necessarily mean that you are not a citizen of the United States and are ineligible to vote.” For example, the database may rely on DHS records that are not up to date, or an individual may have only recently been naturalized. The database can thus create a number of false positives, and those false positives will disenfranchise voters who are actually legally allowed to vote.

Indeed, Kobach has already been responsible for this sort of movement toward disenfranchisement, by inventing a voter registration database checking tool, the Interstate Voter Registration Crosscheck Program. States could choose to voluntarily participate in the program, basically by giving Kobach their program database and allowing him to run it against other state databases. However, the crosscheck just runs names, which means if you share the same name as an individual in another state, you’re tagged as a potentially illegal double voter.

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It’s unclear how many, if any, individuals ended up barred from voting because of this, but there’s no question that the goal of crosscheck is to minimize voting by populations of color. Rolling Stone‘s Greg Palast found that “U.S. Census data shows that minorities are overrepresented in 85 of 100 of the most common last names.” Palast continued: “This inherent bias results in an astonishing one in six Hispanics, one in seven Asian-Americans and one in nine African-Americans in Crosscheck states landing on the list.” Voters of color, Palast noted, are “solid Democratic constituencies.”

Trump recently named two more members to the commission. One, Alan King, is a Democrat and a seemingly harmless choice—he’s a probate judge and also has some training in election administration. The other, however, is J. Christian Adams, a former DOJ attorney who resigned over the overblown allegation, pushed by Fox News and others, that Black Panthers intimidated Philadelphia voters in 2008. Since then, he’s become a high-profile conservative activist. He opposes automatic voter registration efforts and has led lawsuits in jurisdictions with large populations of color, seeking to purge voter rolls.

And the problem extends beyond Kobach’s commission. Two days before the demand for voter rolls was sent, the DOJ sent 44 states—not the same 44 that have refused to provide voter roll informationa letter that is arguably more alarming. The letter demands states provide information detailing compliance with the National Voter Registration Act (NVRA), also known as the “Motor Voter Act.” That law allows individuals to easily register to vote when they apply for a license.

Speculation is rampant—and well founded—that this broad request for data is an attempt to ferret out minimal cases of non-compliance with the Motor Voter Act so that the Trump administration can gut it. Kris Kobach has already made clear he hates things like the Motor Voter Act. As secretary of state in Kansas, he created and enforced a “Show Me Your Papers” law, where he required people to provide a passport or birth certificate when they tried to register to vote. The Tenth Circuit Court of Appeals told him unanimously that he couldn’t do that and held that he’d denied 18,000 motor voter applicants the fundamental right to vote. He then tried to say that those 18,000 individuals could vote in federal elections, but not state and local ones. The Tenth Circuit didn’t like that either.

While the commission chases the imaginary problem of voter fraud, it ignores the two very real voting-related issues America faces. The first is that it is increasingly clear that state-sponsored Russian hackers will likely seek to disrupt future elections. DHS officials recently testified that Russia targeted voter databases in 21 states, successfully penetrating some of them enough to copy data and likely plan future attacks. Working with the states by providing robust funding and assistance for modernization and cyber-security would significantly help increase states’ abilities to resist such attacks. Instead, the House of Representatives’ Appropriation Committee recently voted to entirely defund the Election Assistance Commission, which is the only federal-level organization that assists states in protecting against vote machine hacking.

More troubling than the potential damage of Russian hacking, however, is the already well-documented problem of voter suppression. Voter ID laws—like the one Kobach created in Ohio—and gerrymandering—the intentional drawing of state voting districts designed to disenfranchise a group of people—both work to strip people of voting power. The problem is especially dire for people of color, low-income people, and elderly individuals.

The groundwork for these voter suppression efforts predates Trump. In 2013, Chief Justice John Roberts authored a 5-4 U.S. Supreme Court opinion that functionally gutted the heart of the Voting Rights Act. Section 4 of that act required certain areas of the United States that had a particularly pernicious history of disenfranchising voters of color to get prior federal approval of changes to their election laws.

Texas’ response provides an excellent example of how this decision played out in several states. When that portion of the act was struck down, Texas immediately sprang into action to enforce its previously blocked voter ID law. That law was widely considered the strictest in the nation, allowing only a very narrow range of IDs as acceptable proof of eligibility. Back then, the Obama administration’s stance was that the law could disenfranchise as many as 600,000 Texas voters and it would disproportionately affect people of color.

Now, since the requirement for federal approval was overturned, the only way for people to challenge voter ID laws is through the court system. A challenge to the Texas law has wound through the courts for years and is now back in federal district court, with the original law being eventually being legislatively modified to allow voters to cast a ballot without a voter ID as long as they provide alternate forms of ID that confirm their address, such as utility bills, bank statements, or paychecks. They must also sign an affidavit swearing that they have a reasonable impediment to obtaining an acceptable photo ID. If their declaration on that affidavit is a lie, they are guilty of a Class A misdemeanor. The problem with this alleged softening is that it still puts the onus on voters to assemble a number of documents, be cognizant of their rights, and be confident enough to challenge poll workers in order to cast a vote.

Earlier this month, the Trump administration weighed in and enthusiastically backed Texas’ position, basically reversing course from that of Obama’s DOJ.

Read together with the antics of the Election Integrity Commission, it is clear that this administration is uninterested in maximizing the franchise of voting. Instead, it will work to purge voter rolls, suppress the votes of people of color, and gerrymander districts. And with the recent news that the President’s son-in-law, Jared Kushner, may have coordinated with the Russians to plant fake news and disrupt the election in key states and districts, there’s no question that this administration is willing to do anything to ensure that it, and the rest of the GOP, remains in power forever.

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