When does protecting the vote turn into voter suppression?
The tension between voter suppression and protecting the vote is playing out across the country in state houses, courtrooms and the voting booth.
SALT LAKE CITY — The tension between protecting the vote and suppressing it has spread from a few states once under strict federal oversight to states across the nation in 2020 thanks to the coronavirus pandemic.
The Republican National Committee launched its Protect the Vote campaign last spring to counter efforts by the Democratic Party to expand vote by mail, ballot collecting and other measures that would make voting more accessible. President Donald Trump has been prominent in the effort, amping up his attacks on mail-in voting, claiming it will result in fraudulent ballots that will favor Democrats and sowing doubt in November’s election results.
But the tension between voter suppression and protecting the vote is playing out in more subtle ways, as well. The RNC wants to mobilize thousands of volunteers to observe and report suspicious activity at polling stations on Election Day — a move voting rights advocates say is designed to intimidate and harass voters and poll workers.
Both sides have questioned the motives of local election authorities trying to balance the responsibilities of holding secure elections while reducing the exposure of voters and poll workers to the highly contagious coronavirus. Every decision — ramping up mail-in voting or reducing the number of in-person polling stations — is judged as either encouraging voter fraud or voter suppression.
“I wish I could say I was surprised,” said Justin Levitt, a law professor at Loyola Marymount University and former Justice Department attorney who worked on voting rights cases during the Obama administration. “That’s the normal fight that you see a lot. I just don’t think it’s helpful. The only thing you’re stuck with is people screaming at each other, ‘No, this hurts us. No, this protects us.’”
Help or hurt
Levitt reserves the term suppression for deliberate attempts to keep people from voting, like literacy tests or poll taxes. Most disputes deal with rules and regulations intended to help protect the integrity of the vote, but can end up hurting someone’s ability to vote.
“You can actually ask members of the community, whether something feels like a restriction or like a protection, and they’re usually not shy and letting you know,” Levitt said. “They know real well, whether they would rather have protection or whether they’d rather be free of ‘protectIon.’”
That drama is playing out in Arizona over a controversial law criminalizing so-called “ballot harvesting” — when volunteers collect signed and sealed ballots from family, friends, neighbors or others to drop off at early voting locations.
Some states, like Utah, already ban or restrict the practice. But when Arizona’s Legislature passed a law criminalizing it in 2016, the Democratic Party sued in federal court claiming that the ballot collection law violated the Voting Rights Act and the Constitution’s prohibition against laws enacted with discriminatory intent and that unduly burden a minority’s right to vote. The 9th Circuit Court of Appeals agreed and the ruling has been appealed to the Supreme Court by Arizona’s attorney general.
Unlike Utah, minority voters in Arizona have relied heavily on ballot collecting to submit their ballots at drop off locations because of unreliable transportation, mail service, inflexible work schedules and other obstacles most white, middle and upper-income voters don’t face, advocates say.
The practice also has a cultural component among the Native American voters who approach voting as a community effort. “There’s a lot of distrust among the indigenous people toward government,” said Democratic state Sen. Sally Ann Gonzales, of Tucson and a member of Pasqua Yaqui Tribe. But “people trust their neighbors, their family members, to help them mail or turn in their ballot” if they can’t do it themselves.
Over the years, thousands of ballots have been collected by volunteers in Latino and Native American communities and delivered to voting locations as it became an effective get-out-the-vote strategy for Democrats, which eventually caught the attention of GOP lawmakers, like state Sen. Michelle Ugenti-Rita, who sponsored HB2023, which restricts and criminalizes the practice.
“On its face, it’s obvious that ballot harvesting can lead to manipulation and fraud. And there’s not enough benefit to justify continuing to allow the practice,” she said, explaining why she introduced the bill when she served in the House.
But the 9th Circuit Court of Appeals said there was no evidence of fraud from ballot collecting, except “far fetched allegations” and a “racially tinged” campaign video of a Hispanic man dropping off a handful of ballots, suggesting the ballots had been tampered with, which is already a crime in Arizona.
Ninth Circuit Judge William Fletcher wrote that the law “imposed a significant disparate burden” on the state’s minority voters and the legislative intent coupled with “Arizona’s long history of race-based voting ... cumulatively and unmistakably revealed that racial discrimination was a motivating factor in enacting” the ballot collection law.
No evidence necessary
The ruling overturned the decision of District Judge Douglas L. Rayes, who came to totally opposite conclusions after a 10-day trial in 2017. He stated that legal precedents don’t require Arizona lawmakers prove voter fraud to justify a law designed to prevent it.
“Arizona has acted within permissible constitutional and statutory bounds,” Rayes wrote, adding that he was constrained by Supreme Court rulings that say states don’t need to act on “specific evidence of a documented problem” and that “prevention of voter fraud and preservation of public confidence in election integrity are important state interests.”
Rayes’ rationale is endorsed by more than a dozen briefs filed in support of the high court taking up the case, including one co-signed by Utah Republican Sen. Mike Lee and seven other GOP senators. They argue that the 9th Circuit’s ruling “would jeopardize legitimate voting laws across the country” by upending standard interpretations of the Voting Rights Act.
The brief cites a consequential 2008 Supreme Court decision that upheld an Indiana voter identification law, ruling that it was enough for Indiana lawmakers to show the law had the potential to prevent fraud or instill voter confidence. But alleged victims have to prove widespread voter suppression to challenge election laws.
In his book “Election Meltdown,” election law scholar Rick Hasen called that ruling “a terrible precedent, setting an awful double standard for challenging voting restrictions under the Constitution.”
Then he noted that the 7th Circuit judge who penned the Indiana decision that led to that precedent changed his view five years later. “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID,” Richard Poser wrote in his “Reflections on Judging,” “a law now widely regarded as a means of voter suppression rather than fraud prevention.”
Arizona’s voter ID law offers people up to nine different forms of identification to present to poll worker before voting — an accommodating policy on paper, but not always in practice.
Voting rights activist Alejandra Gomez, co-executive director of the Arizona Center for Empowerment, hadn’t received her new voting registration card when she went to a Maricopa County office to cast her ballot in March’s presidential preference election. She had her driver’s license, which qualifies as an ID to vote, but the country worker insisted, instead, on seeing a voter registration card.
Digging around in her handbag, she spotted a receipt confirming she had recently registered. Although that receipt is not an acceptable form of voter ID under state law, it satisfied the county worker who located Gomez’s updated registration in the system and allowed her to vote in the Democratic primary.
“After that experience, I was like, ‘OK, we have our work cut out for us this year to make sure that education is happening at every level within our grassroots organization so they know at the polling locations what are the IDs and when someone says they were turned away because of ID and we can go through the list right then and there and hopefully deter that person from leaving,’” Gomez said.
While a poll worker not knowing the law may appear a simple mistake to some and certainly not something to take legal action against, for people of color in Arizona it’s viewed as another among many microaggressions they and generations before them have had to endure to cast their vote.
Luis Gonzales, 77, remembers a local election in his native Tucson in the late 1970s when for the first time a Chicano was running for a school board seat and white opponents were standing outside the polling place taking pictures of Chicano voters standing in line.
“It was very intimidating as you wonder, ‘What are they going to use that picture for,’” recalls Gonzales, a Chicano and Democrat who would later serve four terms in the state Senate.
On Tuesday and in November, Gomez anticipates suppressive tactics by GOP volunteers at polling locations, responding to the national party’s call for poll workers and observers to monitor voting this year.
Asked if he is recruiting poll workers and observers as part of the national Protect the Vote campaign, state GOP executive director Greg Safsten said in an email: “The Republican Party supports free and fair elections, and believes COVID-19 cannot be used as an excuse to throw election integrity out the window. Protecting every Arizonans’ vote must be the No. 1 priority of our elected leaders, and should guide any decision to relax or rethink election safety protocols.”
Arizona is a Western hot spot not only for COVID-19, but also in the 2020 election, where President Donald Trump trails presumptive Democratic nominee Joe Biden by single digits in a state Trump won in 2016. Polls also show Democratic challenger Mark Kelly ahead of GOP incumbent Sen. Martha McSalley in one of several critical U.S. Senate races that could determine which party controls that chamber.
Trump’s efforts question the results of vote-by-mail elections won’t have much effect in Arizona, where about 80% of voters cast early ballots by mail and Secretary of State Katie Hobbs, a Democrat, is encouraging more people to use the system this year so fewer people are exposed to the contagious virus at polling stations.
Hobbs, who filed a brief asking the Supreme Court to reject Attorney General Mark Brnovich’s request for a hearing, also hopes ballot collecting will return to her state as it was practiced before HB2023.
“I try to be objective about it. What you often hear on the more liberal side is it’s voter suppression and on the more conservative side, it’s about preventing fraud. My perspective on this is that we should make voting as easy as possible for folks who are eligible,” Hobbs said. “When more people are able to participate, then we have elected bodies that are more reflective of all of us and a government that works better for all of us.”