Analysis Law and Policy

Conservatives Are Coming for Your Voting Rights—And Your State Might Be Next

Jessica Mason Pieklo

The Trump administration has made no secret it wants to roll back voting rights on a federal level, but local and state elections are at risk too.

It is undeniable that President Donald Trump’s administration is attempting a fast-tracked unwinding of voter rights and election protections just in time for the 2018 midterm elections—and as his own presidential re-election campaign is ramping up. The “Commission on Election Integrity” it established in May is filled with voter suppression enthusiasts. The U.S. Department of Justice has pivoted from opposing suppression tools like Texas’ voter ID law and attacks on the National Voter Registration Act (NVRA) to endorsing them. But in all the attention paid to these national efforts to drive down electoral participation, often lost in the shuffle are equally important attempts to suppress the vote at the local level. And although a number of states have instituted voter restrictions, there are a few that stand out as particularly egregious.

These efforts are part of a widespread campaign to control who has the right to vote and who does not. Usually, that means restricting people of color—who are historically more likely to vote for progressive candidates. And at the end of the day, that’s about keeping as many conservative, white people in power as possible. 

At-Large Voting for Judges: Louisiana as a Case Study

Louisiana is among a handful of states that uses what is known as an “at-large” voting system in some districts. At-large voting is a system where all of the members of a municipality or county vote for all of its representatives—such as local judges. Under this system, a majority-white electorate can water down the effect of Black votes.

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This is in contrast to district-based voting, where in highly segregated communities Black voters—frequently gerrymandered into their own districts—at least in theory have some chance to elect some representatives or judges whom the community believes will best represent their interests. 

The at-large voting system has left Black residents in Terrebonne Parish, Louisiana, for instance, with no ability to elect judges of their choosing for decades. That is, according to attorneys from the NAACP Legal Defense and Educational Fund (LDF), who successfully sued on behalf of Terrebonne’s Black voters and the Terrebonne branch of the NAACP in August, arguing the at-large system violated Section 2 of the Voting Rights Act (VRA) and the U.S. Constitution by diluting the Black vote in the parish (which Louisiana uses in place of counties). 

The Louisiana plaintiffs filed the lawsuit to force what they describe as the creation of a majority-Black single-member district that would help Black voters choose a candidate they feel represents their community and push back against vote dilution.

Terrebonne’s method of electing judges is egregiously manipulative and out of step with even other parishes in Louisiana. Many other state courts in Louisiana’s judicial system, including the Louisiana Supreme Court, use district-based voting. 

“In Terrebonne, the white population is about 70 percent of the population. If they are the majority and they don’t prefer the candidates of choice of the Black community—who are about 20 percent of the population—that 70 percent in an at-large system controls all five seats,” said LDF Senior Counsel Leah Aden in an interview with Rewire.

“The unfortunate reality is that, in Terrebonne Parish, the courthouse has been closed to Black candidates who aspire to serve as judges,” LDF cooperating attorney Ronald Wilson said in a statement on the case in 2014.

The role of local judicial races is a critical one, especially in states like Louisiana. Without a diversity of perspectives on the bench, it is even more difficult to break through the state judiciary’s entrenched racism, which in turns fuels the tremendously disproportionate incarceration rates between Black and white Louisiana residents. 

“Most of the criminal justice system happens on the local level,” Jessica Brand, Legal Director of the Fair Punishment Project, a joint project with Harvard University that tracks criminal justice legal issues, told Rewire in an interview. Brand noted that it is not just the election of judges that matters in these races, but also the election of  both city council members who pass discriminatory local ordinances and district attorneys who help enforce those laws.

“We talk a lot about the federal system and the federal system gets a ton of media, but everything happens at the local level,” Brand continued. “So when you disenfranchise people for being able to get a representative who speaks for them … because either they are unable to vote, or they feel as though their vote doesn’t matter, or because they have a conviction that doesn’t allow them to vote, you remove a huge voice from the community.”

Brand continued,“So you are losing a huge voice from the community that has thoughts and on-the-ground experience for what it means to promote public safety and they are just taken out of that whole conversation. And that is incredibly dangerous if people are setting policy about the criminal system and they don’t actually represent the people who are most affected by it.”

That is changing in Louisiana, albeit slowly. In mid-August, a federal district court ruled that Louisiana’s use of at-large voting for electing five members to the 32nd Judicial District Court (JDC), the state court encompassing Terrebonne Parish, violated the VRA and the Constitution. This decision paves the way for an end to a nearly 50-year old discriminatory voting practice. 

The court found a “strong case of vote dilution” in Terrebonne’s voting system and observed that “no black candidate who has faced opposition in Terrebonne has been elected to an at-large position, and black candidates have received incredibly minimal support from white voters, a pattern which has been consistent over the course of more than twenty years.” Further, the court determined that “a motivating purpose in maintaining the at-large electoral scheme for the 32nd JDC was to limit the opportunity of black individuals to participate meaningfully and effectively in the political process to elect judges of their choice.”

The court noted “the persistent advocacy of the Black community [for a majority-Black single-member district], and the equally persistent opposition to this advocacy which was partially based on justifications that do not seem completely legitimate.”

While the fight to elect judges in Terrebonne may seem like a hyper-local election issue not tied to any national issues, it is the opposite.

“Really, this conversation we’re having right now nationally is about white supremacy, and it is happening in Terrebonne, where a few select people want to hold on to a lot of power and they want to decide who sits on the bench, and they want to decide who works in the courthouse,” Aden said. “It’s a seat of power there and they were unwilling to relinquish a piece of it to the Black community and that led our clients for decades to go to the state legislature to introduce legislation to change the method of election. And they were rejected time and time again.”

“You can go to most jurisdictions [around the country] and there’s a case like Terrebonne that is percolating in the judiciary,” Aden continued.

Challenging Voter Registration Requirements and Voter Roll Purges: A Look at Four States

Ohio

At-large voting may be one way for conservatives to try and dilute the vote of traditionally non-conservative voters and hold tight to slipping political power as voting constituencies change. Purging state voter rolls is another way—one the U.S. Supreme Court will take a good hard look at this fall. 

In Husted v. A. Phillip Randolph Institute, the Court will look at the process Ohio used to “clean up” its voter rolls prior to the 2016 presidential election. In 2016, Ohio Gov. John Kasich (R) and Secretary of State Jon Husted (R)—who is now running for governor—instructed officials in the state to partake in a “review” of its voter rolls. The result was a purge of registered voters from the polls based on criteria that voting rights advocates claim violate the NVRA, otherwise known as the “Motor Voter Act.” That law says that states have to offer people the opportunity to register to vote at public agencies like the DMV, and at agencies that offer public assistance or disability services.

In Ohio, when a registered voter doesn’t vote for two years, the state sends that voter a confirmation notice to make sure they haven’t moved, which would thus make them eligible to vote in a different district. If the voter doesn’t respond to that notice and doesn’t vote over the next four years, they are off the rolls and required to register again. This practice was not being enforced aggressively; state officials vigorously renewed it, and the impact disproportionately fell on low-income voters and people of color

Advocates sued, arguing that the purge violated the Motor Voter Act because it uses a “trigger”—in this case non-voting—as a means to remove voters from the state’s rolls. According to the NVRA, there are only some justifications for taking someone off the voter rolls, such as moving to a new state or dying. Non-voting is not among those justifications. As Aden explained, the Husted case is a major attack on voting rights: “What Motor Voter did was … created a structure where it is difficult for states to take people off voter registration lists while at the same time being cognizant that states and other bodies have the right and obligation to keep their rolls updated so they can administer elections in the best way possible.” 

“So what the Ohio case puts at issue that people have the right to vote and they have the right not to vote. The NVRA protects against non-voting being a trigger in certain circumstances … because of the recognition of the difficulty of getting people to re-register.”

A lower court originally upheld the Ohio law, but the U.S. Court of Appeals for the Sixth Circuit reversed that decision, holding the state’s process uses the failure to vote as a “trigger” for initiating removal—which, the court emphasized, federal law does not authorize. 

The Supreme Court will hear arguments on this case in November. If it rules in favor of election officials, Ohio could send a strong signal to other states that these kinds of purges are totally acceptable under federal civil rights laws. This was precisely what happened when the Court issued its 2013 ruling in Shelby County v. Holder, a ruling that both helped to mostly gut the Voting Rights Act and usher in a new wave of state-level voter ID restrictions.

Indiana

Ohio is not alone in its efforts to remove eligible voters from its voting rolls. Indiana has rushed to join the disenfranchisement party as well. Indiana’s law purporting to update how voter rolls in the state are kept was enacted in July. Voting rights advocates sued, arguing the new law violates the NVRA by allowing election officials to immediately remove voters identified by the Interstate Voter Registration Crosscheck system. This is a database used by officials in 27 states to identify voters potentially registered to vote in more than one state. This process looks for matches based on first name, last name, and date of birth alone. Voting rights advocates claim this system has resulted in wrongful removals when used elsewhere; Rolling Stone noted last year that it “disproportionately threatens solidly Democratic constituencies.” The lawsuit, which seeks an injunction against removing voters without federally mandated protections, notes that in Virginia, Crosscheck had error rates as high as 17 percent.

Not surprisingly, the Commission on Election Integrity’s Kris Kobach is a big proponent of the Crosscheck system.

The lawsuit against the Indiana law is ongoing, with the court ordering a scheduling conference for later in November.

Georgia 

As reported by Rewire, more than 380,000 Georgia voters have received a “purge notice” from their local board of elections this summer. According to the reporting, notices were sent to voters who moved within the same county. These notices violated the NVRA, the Americans Civil Liberties Union argues in a letter sent in July to Secretary of State Brian Kemp. 

As Rewire reported, the state sent out a piece of mail that informed voters they had 30 days to respond to the mail or they would be moved off the rolls to an inactive voter status. Being placed on an inactive voter status does not automatically purge a voter from the rolls, but it is the first step in doing so. The Secretary of State’s office said in late August that it would reverse course on parts of its process of purging citizens from voter rolls, though they did not address the damage already done to any voters. 

Colorado

Meanwhile, Colorado faces a very different dilemma. When the Trump administration first announced its commission, an unknown number of voters rushed to de-register to vote for fear the Colorado Secretary of State would voluntarily give up their private information. In other words, they are essentially purging themselves. 

This may have sounded like a good idea for Colorado progressives at first, but it could turn out to be a nightmare for them come election time. 

“A lot of Coloradans had concern for the privacy: about what would be done with this election data, and [about] this Trump Commission request itself,” said Jena Griswold, a Democrat and the front-runner candidate for Colorado Secretary of State.

Griswold said she disagreed with those who chose to remove themselves from the voter rolls rather than risk the Trump administration having access to their voting records, but that she understood the motivation. “The concern is real,” she said. 

Griswold herself feared that the commission may be creating a pathway to gut the NRVA to allow states to enact such voter suppression laws requiring proof of citizenship before individuals can vote, as Kobach did in Kansas. A court would eventually block those efforts, along with those in two other states, based on the NVRA.

“Seven percent of the voting population—approximately 13 million people—do not have documents to show proof of citizenship or a passport,” said Griswold. 

“When we are talking about elections, and even when we are talking about national elections, it’s not only about what is happening in one state,” Griswold said. “Because what happens in one state happens in every other state.”

But removing yourself from the voter roll, Griswold explained, can ultimately be a method of disenfranchisement itself. “People may not re-register. Every time we put a hurdle toward voting there are less people who vote.”

Getting fewer people to vote is exactly the goal of the Commission on Election Integrity. Its own witnesses testified to this very fact. And with the commission stacked with the likes of seasoned voter disenfranchisement advocates like Kobach and Hans von Spakovsky of the Heritage Foundation, Aden and Griswold’s points that conservatives have used states as voter disenfranchisement laboratories certainly ring true. 

The commission has had one public meeting that left open more questions than it answered. Ultimately, though, here’s what we do know: The Trump administration has already changed course on key voting rights cases before the Supreme Court and endorsed an aggressive attack on voting rights across the states. And if these disenfranchisement efforts work as well as conservatives hope they do before and after the 2018 election, that may not change anytime soon.

CORRECTION: This piece has been updated to clarify what position Jena Griswold is running for.

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