All eyes are on the U.S. election polls these days, with Nate Silver's FiveThirtyEight favoring Joe Biden in 88 out of 100 possible voting combinations based on current poll information. Incumbent Donald Trump seems to have a mere 12 per cent chance of success.
However, the polls are only relevant if every voter is able to cast a ballot. As the furor about mail-in ballots shows, the patchwork of state-by-state voting laws and apparatuses can block some eligible voters from getting their hands on their ballots at all.
Unlike Canadian elections, in the U.S. there's no presumption that every citizen over 21 should be able to vote. Voter suppression has been intrinsic to Republican party campaigns since Richard Nixon refined the party's racist "southern strategy," right after Lyndon B. Johnson signed the 1965 Voting Rights Act (VRA).
The VRA banned practices, such as literacy tests, that prevented African Americans from exercising their legal right to vote. It also required certain state legislatures to submit any proposed changes to voting policies to the Justice Department or the local district court for preclearance, before the legislature could adopt or implement them.
In Shelby County vs Holder (2013), the U.S. Supreme Court struck down the VRA preclearance sections, because the court found the sections were "excessive and unecessary" 50 years after the bill's passage. Justice Ruth Bader Ginsburg's vivid dissent became famous: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
Reviewing the results in 2019, the U.S. House of Representatives subcommittee on elections warned that, "The 2016 and 2018 elections opened a new frontier of voter suppression -- the dissemination of misinformation and disinformation by both foreign and domestic actors specifically targeting minority voters to sow division and depress turnout ..."
Last June, The Guardian reviewed what has changed since the 2013 decision, including:
- 1,688 polling places closed (many in predominantly Black and poor neighbourhoods) in states previously covered by section five of the Voting Rights Act;
- New voter ID laws in Texas, Mississippi, North Carolina, and Alabama required each voter to show government-issued photo ID.
- Proof of citizenship laws in Arizona and under consideration elsewhere can be intimidating even to U.S.-born citizens, especially if they're from the Latinx community.
The current government has spurned the VRA's enforcement powers. Instead, this government is actively pursuing suppression.
"The Republican National Committee, at the direction of President Trump, has amassed a $20 million war chest for voting rights cases across the country," the American Civil Liberties Union reported last month. "In every case, they are working to suppress votes."
The ACLU has responded with legal challenges. "This year, we have won 26 victories in 20 states and Puerto Rico that will safeguard the voting rights of millions of Americans this November," says an October 14 news release. "Together, these states are home to more than 154 million Americans and wield 247 votes in the Electoral College."
While remaining non-partisan, the ACLU donated US$1 million to California's proposition 16 in favor of affirmative action, and US$3 million to campaign for Oklahoma's state question 805 against racial biases and systemic inequality in the criminal legal system. With state court cases being decided right up to election day, and the possibility that the Supreme Court will have to rule on the November 3 results, the ACLU held a webinar asking, "Will litigation decide the 2020 election?"
Although a ballot initiative can reverse a bad law, that's not enough, the Southern Poverty Law Center (SPLC) discovered. Facing a federal lawsuit, Alabama changed its murky law disenfranchising anyone convicted of a crime "involving moral turpitude," but failed to notify those affected that they could reclaim their right to vote.
Together with the Campaign Legal Center, SPLC created an outreach program to rectify that: "In one year, the three AVRP [Alabama Voting Rights Project] fellows helped more than 2,500 people with convictions restore their voting rights and register to vote," says their website. They also trained another 2,600 community members to help others work through the challenging process.
While SPLC’s legal case load runs the whole spectrum -- including immigration, free speech, panhandling, wage theft and voting rights -- it is perhaps best known for maintaining Hatewatch, a blog about hate groups. In 2019, the SPLC tracked 940 hate groups across the U.S.
For the 2020 vote, SPLC has published a guide titled "Protect Your Vote: What To Do If You See Voter Intimidation at the Polls."
The guide begins:
"Voter intimidation is, unfortunately, not new to America and has historically targeted Black communities, immigrants and communities of color in an illegal effort to deter them from exercising their constitutional right to vote .... In this year's highly polarized climate and tensions surrounding the coronavirus pandemic, the danger is real that far-right extremists, militias and other armed vigilantes may appear at polling sites, especially in battleground states ... "
Furthermore, SPLC warns, "Trump has urged his supporters to 'go to the polls and watch very carefully.' His campaign has even convened an 'army' of his most fervent supporters to surveil polling places," although such private vigilantism is illegal everywhere.
Despite extremists' attempts to deputize themselves as election day police, SPLC says, "every state prohibits private, unauthorized militia groups ... from engaging in law enforcement activities."
The national legal community has rallied in response. SPLC has organized a national voting rights practice group that is "working in coalition with an unprecedented number of organizing, legal and advocacy groups, as well as election officials at the local and state level" to protect every citizen's right to cast a ballot free of interference or intimidation.
SPLC lists examples of illegal voter intimidation, which include:
- Violent behaviour inside or outside of a polling place, including brandishing of firearms.
- Disrupting voting lines, harassing voters in line or blocking the entrance to a polling place.
- Threats of false criminal prosecution or adverse economic or reputational harm for voting.
The Lawyers' Committee for Civil Rights Under Law will be available for American voters all election day via a nonpartisan election protection hotline at (866) 687-8683 or (888) 839-8682 for Spanish speakers.
On the other hand, one of the milder forms of voter discouragement is negative advertising, a strategy long pushed by Republican Frank Luntz, who seized television's advantage and turned traditional trashtalking into vivid videos. His goal was not to win over voters, but to implant enough doubt to discourage opponents' voters from bothering to vote at all.
Ironically, negative advertising is the one form of voter discouragement where Democrats seem to have an advantage in the 2020 election, both in technique and in quantity. In addition to the Democratic party's American Bridge video productions and anti-Trump Republicans' Lincoln Project ads, a group called Fellow Americans has been refining their approach to winning voters over to Democratic candidates.
They soon learned that voters turned off immediately at any ad that showed images of the current president. Much more successful was an ad where former president Barack Obama addressed the question, "Vote or protest?" He declared, "We need both."
Image: Jay Phagan/Wikimedia Commons
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