Next Tuesday is Georgia’s deadline to register to vote in the November General Election. But some 53,000 Georgians—70 percent of whom are African American—might be turned away from the ballot box. That’s because Brian Kemp, Georgia Secretary of State and current Republican candidate for governor is blocking their applications to register. Kemp’s office has been aggressive in blocking voter registrations, cancelling 670,000 in 2017 alone. Among the reasons Kemp’s office cites for the move is that some registrants did not clear Georgia’s “Exact Match” verification process, in which voter applications must match information on file with the Georgia Department of Driver Services or the Social Security Administration.
In the last few years, political scientists have raised an increasing number of alarms about the potential for “democratic backsliding” in the United States. Yet what is happening in states like Georgia shows that the threats to democracy are actual, not potential. Between 2014 and 2016, states purged nearly 16 million voters from the rolls—an increase of 33 percent from the 2006–2008 period. A growing number of states have also enacted voter restrictions, including Voter ID laws, reforms aimed to deter student voting, and measures that diminish the administrative capacity of precinct officials.
To understand the threat to voting rights, it is worth considering the slow erosion of the institution that was supposed to protect them—the Voting Rights Act of 1965 (VRA). In Ballot Blocked, political scientist Jesse Rhodes argues that implementing the VRA has been a fifty-year tug of war. On the one side, Congress continued to strengthen the law when it came up for periodic reauthorization. Despite the Reagan administration’s efforts to limit the scope of the law in 1982, a bipartisan coalition substantially expanded and strengthened VRA provisions. Yet––away from the spotlight––political entrepreneurs in both the executive and judicial branches of government worked to undermine the VRA from within.
At the heart of these efforts has been a network of what might be called “democratic backsliding professionals.” This includes the Heritage Foundation’s Hans Von Spakovsky, Judicial Watch’s Robert Popper, and J. Christian Adams, president of the Public Interest Legal Foundation. As Ari Berman notes in Give Us the Ballot, many of these experts cut their teeth during the George W. Bush administration, in the Department of Justice’s Civil Rights Division itself. Since the early 2000s, self-styled “voter integrity” professionals have promoted voter restrictions and registration-list purges in statehouses around the country. They also composed the core of the Trump administration’s now defunct Advisory Commission on Election Integrity. Yet most importantly, they have defended democratic backsliding in the federal courts.
The legal mobilization of democratic-backsliding professionals spells trouble for the civil rights organizations filing suit against Kemp under the National Voter Registration Act of 1993 (NVRA). In 2018, a slew of voter-restriction experts––including six former members of the DOJ’s Civil Rights Division––filed amicus briefs in a similar suit regarding Ohio’s purge of voters on change-of-residence grounds before the Supreme Court. In Husted v. A Philip Randolph Institute, 5 conservative justices agreed. The majority opinion, penned by Justice Samuel Alito, argued that to strike down Ohio’s purge would be to “cannibalize” the meaning of the National Voter Registration Act––which forbids the use of nonvoting as the “sole criterion” for voter purges, whereas Ohio removed registrants only when they failed to mail back return cards and then failed to vote for four additional years.
Yet the Supreme Court has not always been so solicitous about the laws governing voting rights. Most notably, John Roberts’ majority opinion in Shelby County v. Holder (2013)––another 5-4 decision––ignored thousands of pages of congressional factfinding to strike down Section 4(b) of the Voting Rights Act. That section set out the formula for determining which states and local governments were required to obtain federal preclearance before implementing new voting laws or practices. As part of his opinion, Roberts cited a statistical table produced in congressional reports that led to the VRA’s 2006 reauthorization. The table showed that the black-white voter gap in six preclearance states had shrunk substantially between 1965 and 2004. Roberts argued that the exceptional circumstances that had justified Section 4(b) no longer existed. The formula was unconstitutional “in light of current conditions.”
What Roberts neglected to mention was the mountain of evidence assembled by the bipartisan congressional coalition that reauthorized Section 4(b). One header in the House Judiciary Committee’s report read: “Committee Findings—Substantial Discrimination Continues to Exist in 2006.” Indeed, the DOJ lodged more Section 5 objections between 1982 and 2004 (626) than there were between 1965 and the 1982 VRA reauthorization (490).
Crucially, the committee found that preclearance jurisdictions continued to take actions “calculated…to keep minority voters from fully participating in the political process.” A small sampling of the evidence is instructive[i]:
- In 1990, Dallas County, AL, sought to purge black voters from rolls. DOJ rejected the purge as discriminatory. Five years later, Mississippi sought to reenact a dual voter registration system, which was initially enacted in 1892 to disenfranchise black voters.
- In 2001, the mayor and all-white Board of Aldermen of Kilmichael, MS canceled the town’s election after “an unprecedented number” of African American candidates announced campaigns.
- In 2003, after African Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, pro posed an at-large voting mechanism for the board, an exact replica of prior scheme that violated VRA.
- In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university.
The dissent in Shelby—penned by Justice Ruth Bader Ginsburg––pointed to issues like these as evidence of Section 4(b)’s continuing relevance: “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.” Yet with Shelby, the dam broke. Contributions to organizations like Judicial Watch soared, as did patterns of voter restriction. Due to the efforts of Kansas Secretary of State Kris Kobach, 29 states began to participate in the Interstate Voter Registration Crosscheck program, which produced deeply flawed lists of 7.2 million “potential duplicate registrant” records. Controlling for prior patterns and demographics, voter-purge rates grew at a significantly higher rate in jurisdictions formerly covered by section 4(b) than noncovered jurisdictions.[ii]
The Shelby majority claims that it left much of the VRA in tact, and did little more than invite Congress to revise the formula for determining which states are subjected to preclearance. Yet Congress has not RSVP’d. Since 2014, Rep. Jim Sensenbrenner (R-WI) has introduced legislation that revises the formula. Yet bipartisan support for the VRA appears to have bled off. Of the 89 cosponsors for Sensenbrenner’s 2017 bill, only 10 were Republicans. Moreover, even if the bill were enacted into law, enforcement by the Sessions DOJ might be limited at best.
The outcome of the Georgia voter purge is uncertain. But the erosion of voting rights seems clear. In cases like Husted and Shelby, the Supreme Court has limited the availability of tools for rights enforcement. The Trump administration is loathe to use the tools it has. Congressional support for strengthening voting rights is limited to a single party. And in Georgia, any norms that might have constrained Brian Kemp appear to have eroded. Thus far, he has declined to recuse himself from overseeing elections, despite being a gubernatorial candidate.
The most relevant question is thus not whether democratic backsliding “could happen here.” Rather, it is how best to defend democracy in the face of actually existing despotism. The unsteady march towards democratization in America should be instructive here. Ending apartheid in Georgia half a century ago required, among other things, the longest and largest social movement in American history.
[i] Section 5 largely acted as a bulwark against these types of actions. But there were important exceptions. In one of the most egregious cases, South Dakota nakedly violated the VRA between 1976 and 2002—disfranchising members of the Oglala and Rosebud Sioux Tribes, among others.
[ii] See difference-in-differences analysis in Jonathan Brater, Kevin Morris, Myrna Perez, and Christopher Deluzio, Purges: Growing Threat to the Right to Vote (New York: Brennan Center, 2018), https://www.brennancenter.org/sites/default/files/publications/Purges_Growing_Threat_2018.pdf