The Democrats’ New Voting Rights Bill, introduced by Rep. John Lewis of Georgia and Sen. Cory Booker of New Jersey, is an attempt to address the threat of election subversion in America today. The bill would require states with at least five voting violations to submit all future changes to their electoral laws for federal approval before they can take effect. The bill’s lofty goal is to protect the right of Americans to vote and prevent them from being disenfranchised as a result of racist or discriminatory voting laws.
Unfortunately, it will likely do the opposite, as other Democratic attempts to safeguard American democracy have. Last year we saw an effort by Democrats in Congress to reform the Federal Election Commission. Their idea was to take the agency’s role as a check on political money seriously by increasing its funding. Instead of acting upon these reforms, however, Congress weakened them in committee hearings. The FEC then turned into an enforcement mechanism for the Supreme Court’s 2010 Citizens United ruling allowing unlimited campaign contributions from corporations and billionaires.
As if that were not bad enough, the FEC then turned into an enforcement mechanism for the Supreme Court’s 2010 Citizens United ruling allowing unlimited campaign contributions from corporations and billionaires.
A similar dynamic is at play with this new voting rights bill. It would be better to prevent political subversion of democracy than to try to fix problems after they occur. To accomplish this, the bill would have to prevent subversion rather than stamp it out after the fact. Yet it turns on getting an accurate picture of voter-subverted elections by eliminating forensic measures required by state governments to detect vote tampering and counting illegal ballots cast.
Section 2 of the new voting rights bill prohibits states from requiring voters to show a government-issued photo ID. In 16 states, without such ID laws people may vote only with a provisional ballot which requires later proof of their identity. This is because, as the Brennan Center for Justice at New York University Law School has documented, between 2000 and 2012 there were more than 2,000 melees, or “flash mobs,” in which thugs surrounded voting booths, demanded that voters produce identification and then physically attacked those who could not.
This phenomenon of creating flawed elections was especially prevalent in Philadelphia during the 2008 Democratic primary between Barack Obama and Hillary Clinton. At least 120,000 people were unable to vote because of voter suppression by political operatives who targeted blacks and Latinos. This created a big enough gap in the vote to allow Obama and his populist message of change to win Pennsylvania and become president.
More recently, there were reports that Donald Trump’s campaign was trying to dissuade people from voting or that Republicans were submitting illegal ballots during early voting in Texas and Illinois. In August, Rep. Elijah Cummings (D-MD) asked the FBI to investigate whether Trump’s campaign was engaging in voter suppression efforts.
Two types of voter ID laws are particularly vulnerable to voter suppression by political operators: ones that require photo IDs and those that allow voters without such an ID to sign affidavits vouching for their identity. To prevent this from becoming a problem, Section 2 of the voting rights bill would require that all voters be allowed to vote by provisional ballot.
However, as Professor Nathaniel Persily at Stanford Law School has documented in his book “The Voting Wars,” it is almost impossible to have accurate election results with only provisional ballots. That is because provisional ballots require future verification of a voter’s eligibility – something that is often not done because the ballot only has to be counted if the local election board later decides it should. As a result, provisional ballots are disproportionately cast by African Americans and Latinos who live in inner cities, where elections have been historically plagued with vote-rigging.
According to the Election Protection Coalition, most county election boards do not attempt to verify a voter’s eligibility even though this is required by Section 302 of the Help America Vote Act passed in 2002. In California, which has had a provisional ballot law since 2001, only 250 votes were successfully verified out of 32,000 cast in the November 2008 election. In Virginia, only 7 of 4,538 submitted provisional ballots were verified in 2007. In Ohio, 5 of 20,628 votes cast with a provisional ballot were counted in 2006.