The 2014 midterm elections are turning into a battle not at the polls but in the courts. The Republican campaign strategy appears to include curtailing voting rights, specifically targeting groups that tend to vote for Democrats.
This strategy is part of a movement I would call the Second Great Disenfranchisement in U.S. history. The First Great Disenfranchisement came after Reconstruction and ended in the 1870s; it ushered in the era of Jim Crow, polls taxes, literacy tests and grandfather clauses as tools to deny African-Americans the right to vote. Today measures such as voter fraud claims, requiring voter IDs, long voting lines, the elimination of early voting and the gutting of the 1965 Voting Rights Act are being deployed to rig elections even before votes are cast.
Four years ago, only 41 percent of those eligible voted in the midterm elections, giving the Republican Party a landside victory. Young people, people of color and women failed to vote in the percentages that helped Barack Obama win in 2008. If the 2010 elections are any indication, more than 60 percent of eligible Americans will not vote next month. Political scientists such as Michael Lewis-Beck have documented that people of color, the poor and those under 30 — groups that usually support Democrats — are especially unlikely to vote. Midterm elections are often bad for Democrats. With a president with record low approval ratings, Democrats fear that Republicans will take control of the U.S. Senate, particularly if these individuals stay home in close races such as in North Carolina and Iowa. The Republican control of both chambers will undoubtedly make congressional opposition during the president’s remaining two years in office even more miserable than it is already.
Polls suggest that Republicans will hold the House and win the Senate. But Republicans are not taking any chances. Across the country they have used their control of state legislatures and governorships to change election laws, making it harder for Democratic voters to cast ballots. These changes include elimination of early voting, requiring IDs to vote in 34 states and efforts to make counting ballots cast in the wrong location difficult. Pre-election litigation is another Republican game plan. The proliferation of pre-election laws is a legacy of Bush v. Gore, the landmark decision by the Supreme Court that resolved disputes over the results of 2000 presidential election.
Prior to the conflict over counting Florida’s votes in 2000, most people never thought about the role that the law plays in elections. Election law is about who gets to vote or be on the ballot, who may give money, how votes are tabulated and so much more. The U.S. does not have uniform national voting standards, which sets the stage for manipulation of electoral laws at the state level. In the 2000 presidential race, there were allegations that officials in Florida tampered with election laws and rules to affect the outcome. But the Supreme Court decided the election dispute for George W. Bush. For many, it was the Supreme Court and not the people who chose the president of the United States that year.
Bush v. Gore changed electoral politics in the United States in fundamental ways. For one, it unleashed voter ID legislation in many states controlled by Republican legislatures and governors, as well as litigation attempting to affect election outcomes. It also empowered Republican governors and legislators across the country to use the fear of voter fraud or stolen elections to justify restrictive voting laws. Fraud claims have been filed in almost every close election since 2000. If Bush v Gore was an effort to change electoral outcome by going to court, 2014 is the year of changing election rules and litigate before the voters even go to the polls.
Over the last few weeks there have been a flurry of court decisions fighting efforts to disenfranchise voters. The Supreme Court upheld Ohio’s effort to curtail early voting after a federal district court and a court of appeals stayed the law. After Wisconsin’s strict voter ID law went back and forth several times in state and federal courts, the Supreme Court enjoined the state from enforcing it, pending appeals. Suits continue to challenge North Carolina’s limits on same-day voter registration and a ban on counting ballots cast from incorrect precincts. An Arkansas state court just struck down the state’s voter ID law.
And on Oct. 18, the Supreme Court allowed a Texas voter ID law that could disenfranchise more than 600,000 registered voters, mostly African-American or Hispanic, to go into effect for the midterm election. Earlier in the month, a federal judge struck down the law as unconstitutional, but his decision was stayed on appeal. The court fight will continue through Nov. 4.
For Republicans, it is not enough that some will chose not to vote this year, helping them in their efforts to win the Senate and retain control of state legislatures across the country; they are also pushing laws to ensure fewer Democrats will be able to vote, hoping to guarantee victories. Races for office are supposed to be decided by the people, at the polls. Orchestrated rigging by legislatures and courts to determine outcomes before the people even vote is a detriment to American democracy.