Sam Levine, Guardian, December 31, 2019
The final weeks of December may have been dominated by news of Donald Trump’s impeachment, but another development with potentially serious implications for the 2020 election – and the future of American democracy – attracted less global attention.
It took place not in the halls of Congress but hundreds of miles away, in Wisconsin. This was where a conservative advocacy group convinced a circuit court judge to order the state to remove more than 230,000 people removed from the state’s voter rolls. Wisconsin was already considered a crucial swing state in 2020 – bearing in mind that Donald Trump won the state by fewer than 23,000 votes in 2016. More than half of the voters at risk of being purged lived in areas that favored Hillary Clinton over Donald Trump that year, according to an analysis by the Milwaukee Journal-Sentinel.
A week later, one of Trump’s reelection advisers was caught on tape telling a Wisconsin Republicans that the party has “traditionally” relied on voter suppression. “Traditionally it’s always been Republicans suppressing votes in places. Let’s start protecting our voters. We know where they are,” the adviser, Justin Clark, said in audio obtained by the Associated Press. “Let’s start playing offense a little bit. That’s what you’re going to see in 2020. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program.”
There was now even less doubt that the Republicans intended to rely on both encouraging, and discouraging, voters as a key part of their 2020 election strategy.
Wisconsin wasn’t the only state where removing voters from the rolls en-masse came under scrutiny. The same week, in Georgia, the state voted to remove more than 300,000 people from the rolls. 120,000 of those people were removed because they hadn’t voted since 2012 and also failed to respond to multiple notices from the state asking them to confirm their address. The removals drew national outcry in a state that has been at the epicenter of accusations of voter suppression.
In 2017 the-then secretary of state, Brian Kemp, removed more 500,000 from voter rolls and a month before the Gubernatorial election in 2018 he held up registrations of 53,000 under the state’s ‘exact match’ law where a misplaced hyphen or comma in a voter registration record could mean more obstacles for someone to vote. Brian Kemp stood in that election and defeated Stacy Abrams by just 55,000 votes. Abrams later called Kemp a “remarkable architect of voter suppression.”
The controversies in Wisconsin and Georgia underscore how the mass removal of voters from the rolls – often called voter purging – has moved to the center of the polarized fight over voting rights in the United States. Although there is a consensus that purging, done carefully, is a useful tool to keep voting rolls accurate and remove people who move and die, there is growing alarm over how aggressively it is being used to penalize people, essentially, for not voting.
Overall, at least 17 million people have been removed from the voter rolls since the 2016 election, an uptick from the number of voters who were removed between 2006 and 2008, according to a study by the Brennan Center for Justice. Although it’s not known how many of those removals were legitimate, the increase comes even as the number of Americans who move has dropped to historic lows.
“Folks who benefit from having fewer people participate are constantly looking for new ways to suppress turnout,” said Stuart Naifeh, an attorney at Demos who was involved in a high-profile voter purge case at the United States supreme court last year. Voter purges “is one that seems to have become more popular.”
Purging is not new – federal law has required it for more than two decades – but there is a new awareness of how purges can remove eligible voters from the rolls and target populations that move a lot: the young, the poor and people who live in cities, all groups that tend to favor Democrats.
“It’s only bad when it’s done poorly. When it captures people who are still in the state or who are still eligible voters and shouldn’t be removed,” said David Becker, the executive director of the Center for Election Innovation & Research, who works with states cleaning their voter rolls.
Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice, pointed out that there used to be an important tool to keep voting jurisdictions with a history of voting discrimination from “bad” purges: the landmark 1965 Voting Rights Act. Until 2013, if a state covered by the law wanted to make a change in its purge process, it would have to show the federal government that it wasn’t to the detriment of minority voters.
The oversight helped prevent both discriminatory purge practices and allowed states to catch errors in their methodology, Perez said. But it was lifted in 2013 when the supreme court gutted the Voting Rights Act. When the law was still in full effect, Pérez said, “it had the effect of stalling and stopping intentional and accidental sloppiness.”
Another legal blow came in 2018, when the supreme court ruled in favor of a controversial way of carrying out purges.
The case involved Larry Harmon, a software engineer in Ohio, who sued the state when he discovered in 2015 that, after sitting out several elections, he was unable to vote on a marijuana initiative because he had been purged. If someone misses a federal election in Ohio, the state sends them a postcard asking them to confirm their address. If they don’t respond to the postcard and fail to vote in two more consecutive elections, they are removed from the rolls. Voting rights groups call the Ohio rule the ‘use it or lose it’ law.
Harmon argued that he was being punished for not voting, which is prohibited by federal law. And critics said that linking one’s ability to stay on the voter rolls to one’s ability to vote can discriminate against people who face more obstacles getting to the polls, such as those who can’t get childcare or time off from work. But in a 5-4 ruling, the supreme court said the process was legal because Harmon wasn’t removed solely for not voting – he had also received the postcard.
The ruling “opened the floodgates” to aggressive voter purging, said Kathy Culliton-Gonzalez, a voting rights attorney.
Mailers and postcards are a controversial way of asking voters to confirm their voter registration. In 2018, states reported sending more than 21 million address confirmation notices and only around 20% of them were returned, according to federal data. The fact that so few people return the postcards signals that they’re not really a reliable way of assessing whether people have moved, voting advocates argue.
But voter purges are more than just a question of lapsed bureaucracy, they are now emerging as a new political battleground.
In Ohio, for instance, Democrats and Republicans have overseen voter purges for two decades, but recently, the practice seems to have clearly benefited Republicans. Voters in Democratic neighborhoods in the state’s three largest counties were struck from the rolls at nearly twice the rate as voters in Republican ones, according to a 2016 Reuters analysis. In largely African American neighborhoods in Cincinnati, over 10% of voters were purged, compared to just 4% in the suburbs.
Earlier this year, Ohio purged 158,000 voters from its rolls using that process, according to an analysis by the Columbus Dispatch. The removals came even after activists in the state discovered around 40,000 errors on the list of voters set to be purged. Oklahoma, which employs a similar purge process to Ohio and Georgia, also removed more than 88,000 inactive voters from its rolls in April.
Even so, there has been some recent successes in stopping unfair purges. Earlier this year, voting groups successfully blocked an Indiana law that would have allowed the state to cancel a voter registration if they had information the voter moved, but without giving the voter a chance to confirm that. Civil rights groups also stopped Texas from cancelling voter registrations of nearly 100,000 people it accused of being non-citizens based on faulty data.
In Wisconsin, election officials have declined to move ahead with the purge while an appeal is pending. The Wisconsin Democratic party has also pledged to contact voters and urge them to re-register (the state allows people to register online, through their local clerk, or at the polls on election day.)
And in Georgia, there has been another victory – of sorts. Earlier this month, Brad Raffensperger, Georgia’s top election official, announced he made a mistake. Days after his office scrubbed 300,000 people from its voter rolls, he revealed 22,000 of them had been incorrectly removed. The voters should have been given several more months to confirm their voter registration.
Raffensperger said he was reactivating their voter registrations to give them more time.“We are proactively taking additional steps to prevent any confusion come the day of the election,” he said in a statement.
Some crucial protections against bad voter purging also remain in place. Federal law prohibits states from systematically cleaning their rolls within 90 days of a federal election and says the systems state develop to remove people from the rolls must be “non-discriminatory.”
It is clear that next year’s election is already becoming an epic battle to try and preserve the voting rights of millions of voters. The lessons from the 2016 election should sound a cautionary tale.
As Professor Carol Anderson, author of One Person, No Vote, a history of voting suppression in the US, writing in the Guardian, said: “The 21st century is littered with the bodies of black votes. In 2016, pummeled by voter suppression in more than 30 states, the black voter turnout plummeted by seven percentage points. For the GOP, that was an effective kill rate. For America, it was a lethal assault on democracy.”