On January 20th, 2017, Donald Trump was sworn in as the 45th President of these United States. By the time the president-elect had actually taken office, he had already put into motion his intent to see through a radical transformation of the nation’s electoral laws. Mr. Trump’s nomination of Alabama Senator Jeff Sessions as Attorney General, his collaboration with Kansas Secretary of State Kris Kobach to establish an “electoral integrity” commission, and his nomination of a series of controversial judicial appointees soon after inauguration, all reflected an extension of his campaign’s attacks on the integrity of U.S. elections.
Fears of non-citizens voting and election rigging emerged as a major pillar of candidate Trump’s nativist agenda, and its emphasis on the contamination of our institutions by outsiders. Having already established his legitimacy-bashing credentials as a leader of the conspiracy to question President Obama’s citizenship, Mr. Trump regularly attacked electoral institutions, once tweeting “Of course there is large scale voter fraud happening on and before election day.” He even went so far as to declare at a rally, “I will totally accept the results of this great and historic presidential election – if I win!” Not more than a few weeks after his Electoral College victory, Mr. Trump re-initiated his attack, claiming, as usual without any evidence, that he would have won the popular vote, were it not for “millions of people who voted illegally.”Total retaliation
Hunter S. Thompson once referred to the sort of vengeful resentment that characterizes Trumpist politics as an “ethic of total retaliation.” That sounds like an accurate account of this administration’s attempts to dismantle voting rights this year.
First came President Trump’s appointment of Alabama Senator Jefferson Sessions as Attorney General. Sessions, who applauded the 5-4, 2013 Supreme Court decision overturning the preclearance formula of the Voting Rights Act, had previously been called “a disgrace to the Justice Department” by Senator Ted Kennedy during a failed appointment for a federal judgeship.
Under Sessions, the Department of Justice has reversed position in several major voting rights cases. It has urged that a Texas voter identification law that it previously deemed racially discriminatory remain in effect. Sessions has similarly reversed the Department’s interpretation of the National Voter Registration Act, and is now defending an Ohio voter list purge case where thousands of eligible voters were removed from the polls.
Next, and after the Trump team legally acknowledged that “all available evidence suggests that the 2016 general election was not tainted by fraud or mistake,” came the “election integrity” commission lead by Kobach and Vice President Mike Pence. Kobach had previously pushed illegal citizenship and identification requirements on voters in Kansas, but was successfully sued multiple times by the American Civil Liberties Union for violating federal voting rights. In his new role, he sought to dismantle those protections.
Instead of recruiting actual election experts, the commission looked like the S-Men of voter suppression, with members like Hans von Spakovsky, J. Christian Adams, and Ken Blackwell. The first substantive act of the commission was to try to collect sensitive voter list information from states, an act that the Election Privacy Information Center referred to as “without precedent and crazy.” The mere threat of the Kobach commission acquiring control over private electoral data initiated a never-before-seen voter deregistration, at the same time that election administrators wasted precious resources addressing commission concerns.
Finally, judicial appointments have initiated a more subtle but certain erosion of voting rights. President Trump’s first Supreme Court nominee, Neil Gorsuch, has already provided a 5th vote to protect a racial gerrymander in Texas. Lower level nominees like Thomas Farr, referred to as the “legal architect of North Carolina’s voter suppression” who built a career defending the state against voting rights claims, has been nominated, rejected, and renominated to a district court there. Mark Norris, a Tennessee legislator who has similarly promoted “proof of citizenship” requirements at voting precincts, was nominated to the Western Tennessee district court. The list goes on, demonstrating the president’s intent to use the judiciary as a stronghold, from which to beat down and destroy the legacy of voting rights that has been built over the last half century.
This year also saw the House Administration Committee try to eliminate the Election Assistance Commission, the only federal agency charged with improving electoral integrity. Similarly, the Federal Election Commission, which is supposed to investigate violations of the (Watergate-inspired) Federal Election Campaign Act, has been rendered so dysfunctional from stalled appointments and partisan stalemate that it will never investigate potential violations of the 2016 Trump campaign.Standing ground
Nevertheless, the story of voting rights in 2017 is one of mobilized resistance and cautious optimism. From its inception, civic journalism and organized resistance have kept public attention focused on both the Justice Department and the Kobach commission. Excellent reporting by ProPublica’s Jessica Huseman revealed that von Spakovsky had authored a memo received by the Attorney General before he was even on the commission, arguing for the exclusion of any Democrats, academics or moderate Republicans from the commission. A White House official recently acknowledged that the commission was a “shit show” after it was dissolved, in part because a federal court had ordered that Kobach release internal communications from which one of its Democratic members, Maine Secretary of State Matthew Dunlap, had been excluded.
Voting rights groups ranging from Hip Hop Caucus’s Respect My Vote! campaign, to the A.C.L.U., Common Cause, and Democracy Initiative rallied to protest the commission at the few public meetings that it held. Nearly every state refused to hand over at least some of the sensitive data that Kobach had requested, and multiple lawsuits were filed by voting rights litigators to protect voter information. News organizations also analyzed the numerous problems with flawed data being presented at commission meetings.
Also leading by example, the National Academy of Sciences, Engineering and Medicine established its own Committee on the Future of Voting, which has so far held four easily accessible, public meetings, bringing together the nation’s top election law experts, political and computer scientists, security advisors and administrators to address very real challenges to free and fair elections. They have shown what a real electoral integrity commission looks like.
Moreover, there is hope that the Supreme Court, having heard its first partisan gerrymandering case in a decade last year, will establish a constitutional standard for identifying redistricting plans that violate political equality. The Supreme Court is set to hear a similar case against a Democratic gerrymander in Maryland this Spring, and there are a host of other cases from Pennsylvania, North Carolina and Texas that could result in stronger redistricting and voter eligibility requirements across the country. These and related cases highlight the advances that social scientists have made in the measurement and estimation of constitutional standards. None of these cases would have moved forward last year without the commitment of mobilized citizens, the research of impartial social scientists, and the legal assistance of voting rights advocates fighting on their behalf.
Looking back, the state of voting rights one year into Donald Trump’s presidency has inspired fear, as intended, but also confidence in the use of evidence-based arguments to hold government accountable. That’s good, because 2018 is going to be a voting rights battle, given the November opportunity to replace Congressional leadership with actors who will bring the president to heel. Citizens must be ever more vigilant in protecting their electoral institutions, and demand that integrity, rather than ideology, be the guiding principle of election law.Michael Fleshman