Dwindling Democracy: How voter suppression undermines a fair election

Trump’s win is not so much reflective of popular opinion, but the opinion and interests of a specific population.

Over the past month, 7 journalists from the Ithaca College community have investigated the 2016 election. What follows is the first in the “Dwindling Democracy” series of three stories about voter suppression; the electoral system and the media’s role in electing Donald Trump.We recommend reading them in order, but each story can be read independent of all other parts. Part 2: The way the U.S. elects its president is unfair and outdated Part 3: The media’s hand in the 2016 election is proven to be heavy

By Kyle Arnold, Celisa Calacal and Angela Pradhan

The results of the United States presidential election ended in shock: then-Republican nominee Donald Trump, a demagogic businessman who built his campaign on racist vitriol, beat out former Secretary of State and New York senator Hillary Clinton. Almost everyone — the Democratic political elite, the pundits, the journalists, the polls — didn’t predict this outcome. For the electoral college, it was a tight race that ended up favoring Trump. In the popular vote, quite the opposite: as of the date of publication, Clinton leads by more than 2.5 million votes.

Post-election, many people were hypothesizing on Trump’s win, some blaming the media for their hyper-coverage of him, third-party voters, the Democratic Party — the list is endless. Yet Trump’s win is not so much reflective of popular opinion, but the opinion and interests of a specific population. Those who benefit from our electoral voting system in particular: white people.

It’s hypocritical and contradictory that a voting system that purports to be part of a functioning Democratic Republic has legal voter identification laws and felony disenfranchisement policies that privilege certain populations.

Especially when data shows these laws target poor and marginalized communities with precision.

The State of Voting in America

In the 2016 election, only 55 percent of this country’s voting age population exercised their right to vote — the lowest voter turnout rate in over 20 years in a general election.

It may be easiest to entirely blame a complacent or apathetic electorate for the missing 45 percent. However, the insidious reality is that a growing wave of legislation threatens to increase this number indefinitely, effectively barring millions from the voting booth: voter identification laws.

In total, 20 states have new restrictions in effect since the 2010 midterm election — of the 20, 16 went red in the 2016 election and four went blue. Red states are typically more likely to pass voter suppression laws. Thirty states require some form of identification to vote in federal, state and local elections.

Infographic by Peter Champelli
Fourteen states had voter restrictions for the first time for the 2016 election.

The surge of these laws started back in 2010, when Democrats suffered the worst loss in a midterm election in decades. The surge of young and communities of color that propelled President Barack Obama, the first black president, in 2008 had dropped off significantly, costing Democrats nearly 50 seats in the House of Representatives.

This handed power to Republicans in the federal government and in many state legislatures around the country.

Jennifer L. Clark — counsel for the Brennan Center for Justice’s Democracy Program, which advocates for voting rights, campaign finance reform and redistricting integrity — said an obstacle for these laws was that they required federal approval under the VRA. Specifically, Sections 5 and 4(b), which required states to receive pre-approval for changes to voter laws that may affect minorities, and blocked many laws while in existence, she said.

Then, in 2013, the U.S. Supreme Court ruled in Shelby County v. Holder 5–4that Section 5 and Section 4(b) were unconstitutional, and that, because of the success of the provisions during the previous four decades, the sections were no longer necessary. The two sections were victims of their own success, Clark said.

In her dissent, Justice Ruth Bader Ginsburg warned that getting rid of the measure was like “throwing away your umbrella in a rainstorm because you are not getting wet.”

This means the 2016 election was the first presidential election in half a century without the full coverage of the Voting Rights Act, passed in 1965, to protect against discrimination at the polls.

Laura Bucci, a Ph.D. candidate in political science who specializes in gender and class at Indiana University, explained that the impact of the Shelby decision on the VRA got rid of a lot of pre-clearance in Southern states removing needing approval to change their voting laws and practices.

The dissent also pointed to the many cases the VRA stopped on the basis of discrimination as a justification for its existence, Clark said.

The Texas voter ID law, for example — which was one of the strictest in the nation — passed in 2011 under a Republican legislature and signed by at-the-time Gov. Rick Perry (R), and was shot down under Section 4(b) and 5 of the VRA in 2012. The court ruled that the law imposed “strict, unforgiving burdens” on poor minority voters.

Just two hours after the Shelby decision, current Republican Texas Governor Greg Abbott, then-Texas Attorney General, announced they would begin to enforce their law.

Other states, like Alabama, North Carolina and Virginia, emboldened by the decision, quickly moved to pass their own laws, except this time, without federal approval — all but guaranteeing the perpetuation of these laws, unless the VRA or similar legislation is passed.

The Laws

Currently, there are 34 states that require some form of identification in order to vote, and 32 of them were in effect for the 2016 presidential election. Six have a strict photo identification requirement, including Wisconsin, Virginia and Tennessee.

Republican lawmakers argue these laws are a “common sense” measure to counteract widespread voter fraud.

But widespread voter fraud?

It doesn’t exist.

A mere four documented cases of voter fraud cases have been reported in the 2016 election. From 2000 to 2014, only 31 cases of voter fraud was found out of more than 1 billion ballots cast.

Meaning .00000031 percent of votes were fraudulent.

In response to the laws being common sense — that it is reasonable to ask for some form of ID to vote — Clark said it’s not the concept that’s unreasonable. She said it’s laws, like in Wisconsin, that ask for very specific types of IDs that only certain people can obtain, omitting other, more easily acquired types of ID.

In Texas, for example, residents can vote with their concealed-carry handgun licenses but not their state-issued student university IDs. According to a study by the Pew Research Center, 49 percent of gun-owning households identify as Republican.

“On a larger level it’s a systemic problem because, in the states where it’s been looked at, it’s disproportionately minority voters who lack those IDs,” Clark said. “So it is a problem for an individual voter and it’s a problem on a systemic level because we are making it harder for a certain group of people to vote and that is additionally a specific group of people who have been historically disenfranchised.”

These tactics are an attempt to repress voters — usually Democratic — and seed cynicism in the electoral process that Republicans can use for political leverage.

Molly McGrath, the national campaign coordinator for VoteRiders, which helps people get voter IDs, worked on the ground in Wisconsin around the time of the election to register people to vote amid the confusing network of changing laws in the state. She said that with her experience on the ground, the law seemed to target a specific type of voter.

“It’s almost like it’s trying to identify people who would be young voters who move around a lot or low income who don’t change their ID every time they move,” she said.

Accessibility to polls and time constraints are also other factors that impact low income voters.

Bucci said, “Most low income are the least likely to vote … they have work and have to make sure they have time to get to the polls. Especially compared to higher income groups with more disposable time.”

Additionally, Wisconsin was actively seeding confusion in the process and undermining its own rules. McGrath said that the DMV, which was supposed to administer a temporary voting credential that would have allowed one to vote within 6 business days, simply was not doing that. She said she found that DMV employees and the people disseminating information to them were out of the loop because the state was withholding information about the temporary voting credential, which the court required the state administer after its previous safety net was accused of being discriminatory.

“They changed the rules of the game and didn’t tell the players,” she said.

Who feels the effect?

Sheela Lal, research director at Progress Missouri and active in Missouri politics since the age of 14, said voter ID laws affect everyone, but have an unequal impact on communities that traditionally lean Democratic.

”This legislation literally hits everybody whether you’re a senior citizen and no longer have a current photo ID or non-expired photo ID,” she said. “It hits low income folks [and]…minorities who disproportionately don’t have access to photo identification. It hits women, because if you’ve been married or divorced, changing your last name can cost a lot of money.”

She continues to state other demographics that are impacted: “It hits trans folks, because in Missouri to get a new license that matches your gender identity, you have to medicalize your transition. … It hits students, especially those who are out of state. … It hits the disabled for obvious reasons.”

The information on how exactly these laws affect voting results are hard to find, ultimately making fighting against them more difficult, Clark said. One study, though, helped give insight into what some reports and Republican party members show: that these laws benefit Republicans and adversely affect minority and poor populations.

In the study titled, “Voter Identification Laws and the Suppression of Minority Votes,” researchers at the University of California, San Diego, Zoltan Hajnal and Nazita Lajevardi; and Lindsay Nielson from Bucknell University, found a considerable and obvious dampening effect on minority populations in states with voter ID laws.

“Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” the study states.
For Republicans: just 3.6 percent.

The study found that, in primary elections, “a strict ID law could be expected to depress Latino turnout by 9.3 points, Black turnout by 8.6 points, and Asian American turnout by 12.5 points.”

Future of voting in America

The battle against these laws is costly and arduous for all parties involved, Clark said. Without federal support, these laws usually end up being curtailed, not dismantled — like in Texas and North Carolina.

Clark said to stem the flow of these laws,Section 5 and 4(b)of the VRA, at least in function, need to be reestablished. And the point of Shelby was not to omit those sections indefinitely, but to replace them with laws that pinpoint modern-day voter discrimination. Unfortunately, Clark said, the two bills introduced to Congress — the Voting Rights Advancement Act and the Voting Rights Amendment Act — despite support from civil rights groups, have not moved much. Clark said the bills have been introduced but will likely be voted on in Congress’ next session.

“We are, of course, in a place where not much is happening out of Congress anyway and this has not gotten their priority,” she said.

With Trump, who said that without voter ID laws, people would vote “15 times” for Clinton in the election (they didn’t), to take office in January, voter suppression laws around the country will most likely face little opposition from the federal government.

This result could indefinitely disenfranchise swaths of the population, edging him and his party closer to re-election.

“It’s really going to take a big push to turn back the tide on this and in the short term,” she said. “I don’t know if that’s what we’re looking at.”

In their clearest form, voter identification laws “target African Americans with almost surgical precision,” and in their most ambiguous form they, by coincidence or otherwise, adversely affect the elderly, college students and people of color.

Lal echoes, “Photo ID [laws] disproportionately affects black and brown people.”

Voter ID laws have made a resurgence since 2010, bolstering a new, complex and expansive network of voter suppression techniques that can be, in part, blamed for President-Elect Donald Trump’s stunning victory.

It is these systems and more that transform the U.S. into an undemocratic nation, a place where one person’s voice has more power than another’s, where rampant inequality in voting power is not only the norm, but is facilitated by the system itself. A system that can furthermore be blamed for a deep-rooted cynicism within the younger generation.

How did we vote?

CNN exit polls of the 2016 election showed clear voter divisions between race, class, and gender. Of 24,558 respondents to the CNN poll, 57 percent of White voters voted for Trump while 89 percent of Black voters, 66 percent of Latino voters and 65 percent of Asian voters chose Clinton.

In CNN’s breakdown of race and gender, 62 percent of White men and 52 percent of White women voted for Trump, while 82 percent of Black men voted for Clinton and a staggering 94 percent of Black women voted for Clinton.

White people of all age groups voted for Trump more than they did for Clinton.

While Trump received more votes from white people without college degrees, white people who are college educated also voted for Trump at higher percentages than Clinton.

In contrast, people of color who have a college degree and those who don’t both voted for Clinton by over 70 percent.

People of the lowest income bracket did vote for Trump more than they did for George W. Bush, John McCain and Mitt Romney.

However, Trump supporters are not just white low-income voters. Voters from the lowest two income brackets — under $30,000 and from $30,000 to $49,000 — voted for Clinton while all income brackets above $50,000 voted for Trump.

Barred from the Vote

6.1 million: that’s the current number of people in the U.S. today impacted by felon disenfranchisement laws that restrict the right to vote to those with a current or past felony conviction, according to The Sentencing Project.

Further analyses from The Sentencing Project, an advocacy organization dedicated to criminal justice reform, show that out of the voting age population, 1 out of 40 adults have lost the right to vote because of felony disenfranchisement. In the U.S., these felon disenfranchisement laws vary state by state.

There are only two states — Maine and Vermont — that do not bar felons from voting at any time during their sentence. These states, coincidentally, also have predominantly white populations.

The other states have felon disenfranchisement laws that do not allow those in prison, on probation or on parole — or a combination of the three — to vote.

And in the 12 states with the most restrictive disenfranchisement laws, not only are prisoners, probationers, and parolees barred from voting, but so are ex-felons who have fulfilled their sentences. In fact, the amount of people who are disenfranchised post-sentence makes up 50 percent of the entire disenfranchised population — 3.1 million people.

These high disenfranchisement rates — in a country that cherishes democracy and the right to vote — dramatically impact the outcome of elections, particularly the 2016 election.

Out of these 12 states, nine went for Trump: Alabama, Arizona, Florida, Iowa, Kentucky, Mississippi, Nebraska, Tennessee and Wyoming.

In Florida — a state that bars more ex-felons from voting than any other stateand where more than 7 percent of its adult population is disenfranchised — an analysis by the Naples Daily News estimated that 58,885 ballots would have been cast by Floridians with felony convictions had they been able to vote.

The difference between Clinton’s loss and Trump’s win was about 100,000 votes.

The U.S., a Standout in Felon Disenfranchisement

Felony disenfranchisement has its roots in the concept of civil death: the idea that people who commit crimes against society are stripped of some of their civil rights, including the right to vote.

Variations of felon disenfranchisement laws can be found in many countries throughout the world. However, felony disenfranchisement in the U.S. is particularly stringent and restrictive.

Infographic by Celisa Calacal

According to a report by The Sentencing Project, there is no other known democracy that disenfranchises convicted offenders with the same breadth and harshness as the U.S.

Unlike many countries, felon disenfranchisement laws in the U.S. are particularly strict because they encompass any and all crimes: from first-degree murder to petty theft to low-level drug offenses.

“One of the primary issues with felony disenfranchisement, the way it currently plays out, is there are felony classifications for a range of crimes, not just what most Americans view as the most serious type of crime,” said Nicole Porter, advocacy director for The Sentencing Project.

Having a system of such catch-all laws that feeds off a criminal justice system and prison industrial complex that is empowered by more and more bodies only creates a pipeline that can strip many of the right to vote for long stretches of time depending on the state they are in.

Felony disenfranchisement, however, is largely upheld by the Constitution.

Section 2 of the Fourteenth Amendment — the same one that granted African Americans the right to vote — stipulates that states would lose congressional representation if they denied men the right to vote, “except for participation in rebellion, or other crime.”

A Crime of Moral Turpitude

This country’s felon disenfranchisement laws may seem neutral on their face, but the reality is much more insidious — they have historically targeted the voting power of communities of color, particularly the black community, more so than white people.

According to a research study titled, “Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002” by two professors from the University of Minnesota and a professor from New York University, felon voting bans erupted in states across the U.S. following the passage of the Fourteenth Amendment.

This historical period known as the Reconstruction Era saw the growth of political power by the new African American electorate. As African Americans gained a stronger voice in politics, many began winning election to Southern legislatures and even to Congress — amounting to a total of 265 Black delegates, more than 600 elected to state legislatures and hundreds holding local offices in the South.

Yet as hundreds of African Americans became lawmakers and representatives across many Southern states, their advancements were undermined by a swift and severe backlash from white politicians. Black codes were passed across the South in 1865 and 1866. The Ku Klux Klan formed to intimidate the African American community through violence and mass lynchings.

Then, felon disenfranchisement laws began popping up in state constitutions across the South.

It was racial threat — the idea that African Americans in these states could overpower the political strength of white people — that pushed many lawmakers to support disenfranchisement.

Infographic by Celisa Calacal

Morgan McLeod, communications manager at The Sentencing Project, said felon disenfranchisement laws often specified crimes that were said to be primarily committed by African Americans to effectively restrict them from voting.

“You see that in legislative history around the adoption of these laws in states like Alabama and Mississippi, where disqualifying felonies that were included in the disenfranchisement category were the felonies assumed to have been committed by black residents,” she said.

At the time, the politicians who were pushing for these stringent laws were upfront about their intention to target this specific community.

During the Alabama Constitutional Convention in 1901, John B. Knox, president of the all-white convention, justified the state’s felony disenfranchisement law by stating that this “manipulation of the ballot” would avert “the menace of negro domination.”

The convention ended up passing a disenfranchisement law that stripped voting rights away from those who “committed a crime of moral turpitude.

Targeting the margins

It is no coincidence that felon disenfranchisement hurt communities of color, particularly the black community, more than white people. The aforementioned research study concluded that a state would be more likely to pass a stringent voter ID law if it had a large African American population.

In the late-1800s to early-1900s, this proved to be the case: many felon disenfranchisement laws were passed in Southern states, where most African Americans lived during that time before the Great Migration.

It is no surprise, then, that this trend continues to play out today.

Today, several of the states that have the strictest felony disenfranchisement laws are also states that have a substantial African American population — Alabama, Delaware, Florida, Mississippi, Tennessee and Virginia.

And in Florida, Kentucky, Tennessee and Virginia, more than one in five African Americans adults have lost the right to vote due to a felony conviction, according to The Sentencing Project.

Tomas Lopez, a counselor at the Brennan Center’s Democracy Program, said felony disenfranchisement laws in the U.S. reflect the nation’s system of mass incarceration.

“The same people who get caught up in our criminal justice system are the same people who are unable to vote, in some cases permanently,” he said.

The disparities in the disenfranchised population in this country are not anomalous, given the direct line of causation between disenfranchisement and the criminal justice system, which sees the highest rate of incarceration in the world. And as incarceration rates have continued rising, so has the number of disenfranchised people.

What results from this insidious mixture of explosive mass incarceration and harsh felon disenfranchisement laws is a significant weakening of the voting power of African American communities and other communities of color.

“You end up in situations where you have states where really large portions of the population of people of color … are unable to vote and their communities and their voices aren’t reflected in our elections,” Lopez said.

Efforts at reform

In recent years, there have been efforts on behalf of advocacy organizations — like The Sentencing Project and the Florida Rights Restoration Coalition — and politicians to reform disenfranchisement laws in certain states and restore the right to vote to ex-felons.

Virginia, New York and Maryland have taken significant strides to restore voting rights to their disenfranchised population, either by restoring voting rights to ex-felons or people who are no longer incarcerated.

McLeod said these new developments are promising and show promise in expanding the right to more felons and ex-felons.

“I am hopeful that other states will revisit these laws and work to pass reform that expand the vote to people with felony convictions,” she said.

And while these renewed efforts to fight against felon disenfranchisement laws may seem to have a partisan stance — where Democrats advocate for restoration and Republicans support continued disenfranchisement — Lopez said felon disenfranchisement is not about partisan politics, but democratic participation.

“We see this as about the people who are currently disenfranchised,” he said. “Putting the filter on it — that this is about politics — is something that I think diminishes what we think is the core point about people getting to be a part of their democracy.”

Despite the arguments for these voter ID and felon disenfranchisement laws, ultimately the reasons for their implementation are overshadowed by the perverse and disproportionate impact they have on the most marginalized communities. It is clear that these laws are not so much safeguards against a pure election, but tactics meant to shut out certain groups from having their voices heard in the electoral process.

A nation that diminishes the voting power of its most marginalized populations cannot claim to be a true democracy at all.