by Julie Ebenstein, Staff Attorney, Voting Rights Project, ACLU
The United States has a long, persistent history of racial discrimination in voting. It is a record that we still fight in the courts and have seen significant progress pushing back on. Just yesterday, the Supreme Court let stand a Fourth Circuit decision that struck down North Carolina’s voter suppression law for purposefully discriminating against African-Americans and violating the Constitution. Last month, a Texas trial court determined, for the second time, that a statewide photo ID law purposefully discriminates on the basis of race.
Despite our progress, it is undeniable that the U.S. has a turnout problem: too many eligible voters do not, or cannot, vote. Voter suppression and low voter turnout threaten the integrity of our elections and the health of our democracy.
Why, then, amid drastic federal budget cuts, has the president ordered a commission to investigate “voter fraud” — an election bogeyman which has been widely debunked by legal experts, election administrators and elected officials from across the political spectrum. The commission only distracts from the real problem facing American voters.
Before we waste taxpayer funds on this commission, we must seriously consider its objective, which appears to be to undermine voters' overall confidence in America’s electoral process, or even to justify voter suppression.
The commission is not only a distraction from real issues facing voters, but problematic for other reasons. For instance, it defines “improper voter registration,” as any situation where an individual who is not eligible to vote in a jurisdiction is still on the voter rolls, which sounds ominous, but often is not. The National Voter Registration Act (“NVRA”) sets strict standards for when and how voters may be removed from the voter rolls to protect against disenfranchisement. It prevents removal of voters for, for example, not voting in an election, and it requires election officials to notify voters before cancelling their registration.
Voters not yet removed from the rolls at their prior address — which included, until recently, Steve Bannon and Tiffany Trump — are neither improperly registered nor committing a crime. The NVRA simply accounts for the “churn” in registration so that voters are not improperly or inadvertently disenfranchised. It exemplifies the type of federal legal protection for voting rights we so direly need: after 20 years, it has increased registration rates among lower-income Americans and brought millions into the democratic process.
The Supreme Court’s decision not to review North Carolina’s appeal, coming days after the executive order, juxtaposes two election issues: on the one hand, voter suppression, our extremely low turnout as compared to other democracies, and discriminatory laws that, as the Fourth Circuit noted, target African-American voters with “surgical precision.” On the other, the relentless, and expensive, search for fraud, a search which in more than three years of litigation in North Carolina, according to the Fourth Circuit “failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina.”
Before we waste taxpayer funds on this commission, we must seriously consider the records of the officials selected to lead this effort. The commission will be co-led by Kris Kobach of Kansas, who has been peddling the myth of non-citizen voting for quite some time and supported laws which the ACLU has successfully challenged in 4-out-of-4 lawsuits.
Like racial discrimination in voting, propaganda about illegal voting is nothing new. Throughout American history, this sham has been used to push unnecessary restrictions on the right to vote. Most recently, 14 states implemented laws making it harder to vote in 2016. But more people have been disenfranchised by clerical errors alone than affected by the voter impersonation that the commission seeks to investigate (of which there have been 31 instances in elections from 2000 through 2014 when well over a billion ballots were cast).
We should be doing everything we can to encourage, rather than hinder, full democratic participation, including continuing to fight against unconstitutional racial discrimination in voting. This commission, and the incessant chatter about large scale voter fraud, distracts from the task at hand for voting rights advocates: addressing the real problems facing American voters.