One Person, No Vote: How Voter Suppression Is Destroying Our Democracy

by Carol Anderson

All this had a horrific effect on voter registration, especially for minorities. African Americans, who were one-third of the applicants, accounted for 64 percent of the tens of thousands of voter registrations that Georgia’s secretary of state canceled or “placed in ‘pending status’” for data mismatches between 2013 and 2016. Meanwhile, “Asian-Americans and Latinos were more than six times as likely as white voters to have their applications halted.”

For a few years, the program limped along, virtually unnoticed. Then, a new secretary of state took over in Kansas, and he hitched his star and his agenda, which had been nurtured in the worlds of virulent anti-immigrant, anti–civil rights conservative circles for decades, to making Crosscheck more robust, more pronounced, and, frankly, more electorally lethal.

There was, as a result, a zealotry to all of Kobach’s work. He “has been a key architect behind many of the nation’s anti-voter and anti-immigration policies.” At the DOJ in 2001, he developed a database screening program to identify Muslims as terrorist threats. Though thousands were deported, no terrorists were ever found. But Kobach saw the program as a “great success.”

As Ari Berman reported, Kobach told the Kansas City Star that the “position of secretary of state was not an especially glamorous one, but it offered an enormous amount of power by virtue of its authority to enforce state voting laws, particularly as American elections were being decided by increasingly narrow margins.”

As “Exhibit A,” he pointed to a case where a man named Albert Brewer, who had been dead for years, showed up and voted in the last primary election. Kobach held up this instance as one of thousands lurking in the voter rolls, skewing elections, canceling out the legitimate votes from hardworking, honest Americans. It was vintage Kobach, and vintage GOP. It was also not true. Yes, there was an Albert Brewer who had died. And there was one who voted. But they were not one and the same. The Albert Brewer who voted, Albert Brewer Jr., was the son of the man who had died. Kobach hadn’t even bothered to check before he started slinging accusations.45 That kind of deliberate sloppiness would, however, be his trademark; it’s the way he garners the support necessary to wipe thousands off the rolls in Kansas and millions throughout the United States.

“We had margins of less than 10 for water commissioner, school board and mayors,” Kobach claimed. And, with eighteen thousand noncitizens supposedly poised to usurp the rights of Americans, immigrants could take over key positions in government. It was a Samuel Huntington Clash of Civilizations nightmare.

Kobach, therefore, suspended the right to vote of 35,314 Kansans because they could not produce “proof of U.S. citizenship.” More than 12,000 of those he simply purged outright because the disparate access to citizenship documents played right into Kobach’s belief about who is American and who is not, and thus who has the right to vote. He “associated minority voters with ‘ethnic cleansing’ … [in] a conspiracy to ‘replace American voters with illegal aliens.’ ” The U.S. Commission on Civil Rights rightfully concluded that the SAFE Act “may disparately impact voters on the basis of age, sex, disability, race, income level and affiliation.”

Yet a study by the Brennan Center for Justice found that “7 percent of Americans, mostly minorities, do not have these [citizenship] documents readily available.” Moreover, as scholar Chelsie Bright explained, “it is unclear that proof of citizenship requirements actually add any real value to the integrity of the election process. Federal law already requires that individuals registering to vote affirm in writing that they are a U.S. citizen. Lying carries serious criminal penalties. Further, research consistently finds that voting by noncitizens is extremely rare.”53 The ACLU sued. Kobach’s purge was not driven by any exigent need or crisis. There was no threat to the integrity of the ballot box. What there was, however, was Kobach’s need to remove the poor and minorities from the voting rolls. In October 2016, the Tenth Circuit of the U.S. Court of Appeals agreed. Kobach’s “theory of Kansas’ widespread problem of noncitizens voting” was “pure speculation” with “precious little … evidence.”

Based on the individual lists the states received back from Kobach, massive purges have wiped more than one million American citizens from the electoral map. In Virginia, for example, 342,556 names were immediately identified as suspect because they appeared to be registered in another state. Those who were already on an “inactive voters” list were summarily removed, “meaning a stunning 41,637 names were ‘canceled’ from voter rolls, most of them just before Election Day” in November 2014.

But up close, neither the lists nor the database could withstand scrutiny. The problem is twofold. First, despite the hype and the marketing, the program does not actually match on every parameter. Not all states require the same information that Crosscheck uses to purge the rolls. Social security numbers, for example, are rarely used. Ohio doesn’t bother with a person’s middle name either. Suffixes rarely make it in, as well. As a result, it believes that James Willie Brown is the same voter as James Arthur Brown, as James Clifford Brown, as James Lynn Brown. The possibility for error is exponential. In Georgia alone there are nearly four hundred James Browns. And in North Carolina, the supposedly more than thirty-five thousand illegal voters simply evaporated when the state hired an ex-FBI agent to ferret them out and bring them to justice. He found “exactly zero double voters from the Crosscheck list.” In fact, researchers at Stanford, Harvard, Yale, and the University of Pennsylvania discovered that Crosscheck has an error rate of more than 99 percent.

Crosscheck’s overreliance on a handful of selective data points, therefore, feeds into the second major problem: it is a program “infected with racial and ethnic bias.”

As a result, when Crosscheck zeros in on name matches, whites are underrepresented by 8 percent on the purge lists, while African Americans are overrepresented by 45 percent; Asian Americans by 31 percent, and Hispanics by 24 percent.

The depth of disfranchisement, of wringing the right to vote out of American citizens, led award-winning columnist Charles P. Pierce to conclude that “Kobach is Jim Crow walking.”70 Investigative journalist Greg Palast, after surveying the racial casualties in Ohio, knew that it wasn’t just Kansas’s secretary of state but an entire GOP apparatus that decided the “only way” to win an election was “by stealing American citizens’ votes.” “It’s a brand-new Jim Crow. Today, on Election Day, they’re not going to use white sheets to keep away black voters. Today they’re using spreadsheets.”

The fears were heightened further by Trump’s fantastical claim that he would have won the popular vote if it hadn’t been for three million to five million illegal voters.74 Concern mounted as the president, who was determined to prove his lie was the truth, signed an executive order creating the Presidential Advisory Commission on Election Integrity and appointed as its chair Vice President Mike Pence, who as governor of Indiana had the state police raid and destabilize an organization registering African Americans to vote, and Kris Kobach as its vice chair.75 A New York Times editorial summed it up: the “Commission on Election Integrity … is a sham and a scam … born out of a marriage of convenience between conservative anti-voter-fraud crusaders, who refuse to accept actual data, and a president who refuses to accept that he lost the popular vote fair and square.”

Similar to Kobach, Adams was also in Bush’s Department of Justice. There he flipped the Voting Rights Act on its head and went after African Americans for supposedly violating whites’ right to vote.79 He also made it clear that he deplored the NVRA because, in his view, “voter registration takes forethought and initiative, something lacking in large segments of the Democrat base.”80 Under the cover of his organizations, the American Civil Rights Union (ACRU) and the Public Interest Legal Foundation (PILF), he bullied and targeted minority and poor districts, and threatened lawsuit after lawsuit unless they purged their voter rolls, forcing many to capitulate because they simply didn’t have the resources to fight him in court.81 He argued, in his own Huntington-like version of The Clash of Civilizations, that the “Obama Administration was attempting to ‘import populations with cultural and legal traditions foreign to American traditions,’ and that ‘noncitizen voting helps the left win elections’—statements,” as the NAACP Legal Defense Fund chair Sherrilyn Ifill notes, “with no factual basis whatsoever.”

The backlash to the request for voter information was therefore intense. There were major concerns about privacy, about the security of the database, about the intentions of the commission for amassing this data. The immediate response was a 2,150 percent increase in citizens in Denver canceling their voter registration, and there were similar cancelations in Arizona, Florida, and North Carolina.85 The other public response to Kobach and the commissioners was as pointed: “You are all about voter suppression to rig elections … you are evil, pray there is no hell.”

Even Republicans seemed to agree. Forty-four states, including Kobach’s Kansas, balked at the Pence Commission’s data request.89 Mississippi planted its feet squarely on the ground of states’ rights and told the commission “it could go jump in the Gulf.”90 Democrats were equally opposed. “This is a coordinated attempt to create a national voter registration file that would reside in the White House … We might as well let [Russian President Vladimir] Putin just get a zip drive of every registered voter’s information in the nation,” Kentucky’s Alison Grimes remarked, alluding to the ongoing federal investigation of whether the Kremlin sought to tip the scales in the 2016 race to Trump.

In addition to being built on lie after lie, the Pence Commission’s shaky beginning also included getting hit with eight separate lawsuits for violating a range of federal laws about the setup and operation of government commissions.96 “That kind of recklessness,” columnist Mark Joseph Stern concluded, “can only heighten the widespread suspicion that the commission is interested in something other than ‘election integrity.’

General distrust is one thing, but the reality of mass incarceration is another, because the impact on voting rights is profound. In 2016, one in thirteen African Americans had lost their right to vote because of a felony conviction, compared with one in fifty-six of every non-black voter.

African Americans statistically do drugs no more than any other racial or ethnic group but are imprisoned for drug charges at almost six times the rate of whites. Hyper-policing in black communities has meant that while “African Americans represent 12.5% of illicit drug users,” they are “29% of those arrested for drug offenses and 33% of those incarcerated in state facilities for drug offenses.”

The Florida Office of Executive Clemency, which he leads, meets only four times a year and has more than ten thousand applications waiting to be heard. An ex-offender cannot even apply to have his or her voting rights restored until five to seven years after all the sentencing requirements have been met. The process is therefore daunting enough as it is, but Scott has slowed it down considerably.112 His predecessor, a moderate Republican turned Democrat, “restored rights to 155,315 ex-offenders” over a four-year span. Since 2011, however, Scott has approved only 2,340 cases.113 As a result, the state is able to gain the extra representatives in Congress that its population—including the prison population—warrants, while, similar to the Constitution’s Three-Fifths Compromise, politically silencing millions of citizens who give the state its additional clout and power in Washington, D.C.

The question, therefore, was never how do we open up this democracy and make it as vibrant, responsive, and inclusive as we can, but rather, how do we maximize the frustration of millions of citizens to minimize their participation in the electoral process? How do we let candidates identify and choose their voters instead of the other way around? And how do we make all this look legitimate?

They inflated congressional representation to create an impregnable majority that was also impervious to the will of the voters. They led to thousands of people waiting in line for hours to cast a ballot. They shut down the operations of storied organizations that had worked for decades to register citizens to vote. And as a result, they created “a sense that something has gone amiss with American democracy, that there is this effort to rig the rules of the game.”

The U.S. Constitution, therefore, requires that legislative boundaries be drawn every decade after the Census to align and realign congressional representatives with population shifts and changes. From the very beginning, however, chicanery was afoot. Revolutionary hero Patrick Henry recognized that whoever drew those legislative district lines could reward friends with political power and simultaneously banish enemies into the electoral wilderness. He therefore went after his nemesis James Madison to keep him out of Congress. Henry convinced the Virginia legislature to manipulate the boundaries of his enemy’s district so that the election eventually pitted Madison against the revered James Monroe for the coveted seat. In 1810, when Massachusetts governor Elbridge Gerry drew a district in the shape of a salamander to corral his rivals and neutralize their influence, the term “gerrymander” became a descriptive and ongoing part of the American political lexicon and life. By the late nineteenth century, gerrymandering was so pervasive and disruptive that President Benjamin Harrison called it nothing but “political robbery.”9 Two distinct types of gerrymandering emerged on the American landscape. One was racial; the other, partisan. Both were lethal.

That is to say, racial gerrymandering is designed to create an all-white power structure virtually impervious to the rights, claims, and public policy needs of minorities. Partisan gerrymandering, on the other hand, supposedly eschews race altogether for party affiliation and seeks to ensconce in power, regardless of the vote count, a particular party’s candidates while eliminating the competition (and constituents) from having any real say in the development and implementation of laws and public policy. As a result, partisan gerrymandering has “designed wombs for [its] team and tombs for the other guys” by controlling the executive, legislative, and judicial branches of government.

Beginning in the 1960s, the Civil Rights Movement’s call for moral clarity and legal equality finally began to disrupt business as usual. The NAACP, the Student Nonviolent Coordinating Committee, the SCLC, and the Congress on Racial Equality were demanding desegregation of the schools, the end of disfranchisement, an equal justice system, and the full array of African Americans’ citizenship rights.

Mississippi exemplified this ideologically inflexible move to the right endemic in one-party systems. In the South, that meant, in the words of Alabama’s George Wallace, that no politician who wanted to win an election was going to get “out-niggered.”

“Coleman’s insistence on the rule of law, opposition to the Citizens Councils, and call for reason” was heresy bordering on blasphemy. He was pilloried by two-time gubernatorial loser Ross Barnett, whose “sole campaign theme” was white supremacy. Barnett “denounced Democratic opponents in the state house as moderates … for inviting Federal agents to investigate the lynching of a black man.” He promised, instead, to protect Mississippi’s sovereignty and unleash the full force and fury of the state on civil rights agitators.13 In 1960, Barnett was not going to be a three-time loser. Instead, he became governor.

The U.S. Supreme Court disagreed and ruled that this was a “justiciable” matter, and the courts did have authority to weigh in on this issue. The constitutional rights of American citizens had been impinged upon by state action. In using the 1901 statute to draw congressional districts, Tennessee had diluted the votes of some citizens while privileging others. That dilution violated the Fourteenth Amendment’s equal protection clause. In its decision, in pointing to the disparity in the weight of votes, the court, thus, defined “one person, one vote” as the standard benchmark for democracy. This was reaffirmed in two major subsequent decisions in the 1960s.

The key step was to unleash “brute force, computer-driven gerrymandering” to render democracy obsolete.30 Some Republicans, like those in North Carolina, brought in their top mapmaker, Tom Hofeller, who provided “the most cravenly political results … with calculating prudence.” His “exceptionally smart” maps transformed a once 7–6 Democratic congressional majority into a “10–3 GOP stronghold.” Similarly, Michigan, Pennsylvania, Texas (which didn’t consult with Hofeller), Wisconsin, and other states began to have districts that looked like contorted yoga positions or Rorschach tests: the North Carolina Gimpy Leg, the Texas Glock, the Georgia Flat-Cat Road Kill that became the Squirrel Not Yet Hit by a Car, and the Texas 27th Bottle Opener. Hofeller, using the most powerful mapping software linked to demographic data and trends, was able to wring every last available GOP district out of a state and do so in a way that provided safe districts where there could never be a viable challenge from a Democratic candidate. Indeed, after the high-powered gerrymandering, “more Americans lived in areas with uncontested elections than … before.”

Meanwhile, the GOP “pack[ed] the rival party’s voters tightly into far fewer districts,” creating a power “asymmetry.”

For example, in 2017, it was obvious that from the Affordable Care Act, to the Deferred Action for Childhood Arrivals (DACA), to the Children’s Health Insurance Program (CHIP), the majority of the American people have been on one side of the issue and Republicans in Congress on the other; and the Republicans have won.35 One of the most striking examples of this jarring phenomenon was the passage of the 2017 tax bill (H.R. 1). In many ways, its features are absolutely injurious to middle- and working-class Americans.36 Hence, a majority of the people were strongly opposed to the bill. A Gallup poll found that while 70 percent of those identifying as Republicans supported the measure, a mere 7 percent of Democrats and 25 percent of Independents supported the bill. Most important, only 29 percent overall approved of H.R. 1.37 The media continued to publish one stark poll after the next, astonished that the GOP leadership, as well as the rank and file, could and would ignore the clamor and outrage coming from the public.38 But with wealthy donors threatening to cut off campaign contributions unless the tax bill passed and transferred the lion’s share of the $1.5 trillion in resources to them, the GOP pressed forward.

As the Brennan Center for Justice noted, “Citizens can’t just vote the gerrymandering party out of office, because the maps are too heavily skewed. In fact, that’s the whole point of extreme partisan gerrymanders; to insulate the legislative majority from the will of the voters.”

In the 2016 election, for example, Democrats running for seats in the House of Representatives received 1.4 million more votes than their opponents, but Republicans secured thirty-three more seats.

The demographic composition of the parties almost dictates it. The Pew Research Center notes that in 2016, while 86 percent of Republican voters were white, those who were African American had stayed at 2 percent since 1992. Meanwhile, Democratic voters were much more diverse: 57 percent were white, 21 percent were black, 12 percent were Hispanic, 3 percent were Asian, and 5 percent described themselves as mixed race or their race as “other.”45 The racial demographics of the parties, therefore, carry over into the ways that the district lines are constructed. In Georgia, when two Republican incumbents barely won reelection in 2016 because their platforms did not resonate with the growing African American population in the Atlanta suburbs, the GOP-controlled legislature simply redrew their districts, moving the black neighborhoods over to a Democrat and extracting her white constituents to Republican districts.

The 2010 Census indicated that Texas’s population had grown significantly. As a result of 4.3 million new residents, four additional seats were added to the state’s congressional delegation. That growth, however, was the direct result of the Hispanic and African American population increasing by 42 and 22 percent, respectively. “In other words, without the minority growth, Texas—now officially a majority-minority state—would not have received a single new district.” The GOP-dominated legislature, nevertheless, then set out to produce “lavishly brazen maps” where “white Republicans were awarded three of the four new seats that resulted from Democratic-leaning minority population growth.”47 The racial gerrymandering in Texas is so institutionalized that, frankly, it has the aura of the apartheid era’s “white minority rule.”

Yet it is Wisconsin, one of the most segregated states in the nation, that has become the major legal battlefield over the issue of partisan gerrymandering.51 An epic struggle is playing out in the U.S. Supreme Court in the Gill v. Whitford case, on which, as former attorney general Eric Holder noted, the justices “will have a chance to rein in an aggressive new breed of data-driven gerrymandering that divides communities and diminishes the voice of many Americans.”

When put to the test, the redistricting exceeded the Wisconsin GOP’s expectations. In the 2012 election, although Obama carried the state by seven points and Democrats received more than 50 percent of the vote, they garnered only 39 percent of the seats in the general assembly.56 And each subsequent election yielded an increasing number of Republican seats that was decidedly disproportionate to the votes GOP candidates received.

Wisconsin’s defense was simple. The state claimed that it did nothing wrong. It was just politics, and Vieth made clear that there was no role for the court in politics. Moreover, if Democrats had fewer districts, it was only because their voters tend to be concentrated in the cities. The districts were drawn based on political geography, the state contended, nothing more. Whitford’s lawyers, however, countered that American citizens’ right to equal protection under the law had taken a beating because of the extreme partisan gerrymandering that the state executed. The trail of inequality was easily discernible, from the sixty out of ninety-nine seats the GOP won in 2012 to the sixty-three out of ninety-nine in 2014, with nothing approaching that kind of dominance at the ballot box.

And while the Supreme Court had earlier ruled that no one could expect proportional representation (e.g., that 48 percent of the population should receive 48 percent of the representatives), what was happening in Wisconsin was not about proportional representation; it was about representation, period.

The efficiency gap is, however, only one component.64 Other tests must be used in conjunction with it to verify those findings. First, is there a durable partisan effect, such as Wisconsin undergoing three elections in which the Republicans’ vote gains were not overwhelming but their share of the number of seats in the General Assembly continued to grow. The next part of the standard is intent to seek a partisan edge. When Wisconsin’s GOP took a small cabal to an off-site room, worked away at the maps for four months, excluded every Democrat from the process, and required nondisclosure agreements from their Republican colleagues before they could be shown their own districts, intent had been more than established. To be clear, unitary party control of the government apparatus—both houses of the legislature and the governor’s office—is usually an essential condition of intent. Finally, if the districts do not meet previous constitutional standards, such as being compact, contiguous, and within established political subdivisions, but instead begin to take on the shape of a bug splattered against a windshield or are joined together only during low tide, something could be awry.65 None of these alone will suffice, but combined they spell out democracy’s SOS. The district court weighed the evidence, assessed the arguments, evaluated the efficiency gap’s reliability and validity, and parsed through the other standards and how they strengthened the judiciary’s ability to determin...

As Gorsuch harangued Whitford’s attorney on this point, Justice Ruth Bader Ginsburg had had just about enough and asked a basic question that any first-year law student would know the answer to: What is the basis for “one person, one vote”? As Whitford’s lawyer, Paul M. Smith, recited the Supreme Court’s decisions in Baker v. Carr, Reynolds v. Sims, et al., Ginsburg’s pointed query sent a powerful signal. Later she cut to the core of the issue: “The precious right to vote” was “what’s really behind all of this … if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? … What becomes of the precious right to vote?”67 That did not appear to be the issue for Chief Justice John Roberts, of Citizens United and Shelby County v. Holder fame. He derided the “efficiency gap” as “gobbledygook” and “a bunch of baloney.”

Smith countered quickly and brilliantly that this was about symmetry. If in one election, party A received 54 percent of the vote and received 58 percent of the seats, then the same should hold true when party B wins 54 percent of the vote. “That’s symmetry.” But, Smith continued, what Wisconsin’s GOP did was to spend “those four months in that locked room doing two things, trying to maximize the amount of bias and eliminating … competitive districts.”

Justice Stephen Breyer proffered an approach to see if there was some “way of reducing” “all of that social science stuff and the computer stuff … to something manageable.” Something that the courts could use. In four steps he laid it out. First, “was there one-party control of the redistricting”? Second, “is there partisan asymmetry? In other words, does the map treat the political parties differently? … Good evidence of that,” Breyer added, “is a party that got 48 percent of the vote got a majority of the legislature.” Third, “is there going to be persistent asymmetry over a range of votes?” Wisconsin’s 2012, 2014, and 2016 elections “shows you that,” he said. And fourth, was there any “justification,” any “motive,” for crafting a districting map that is one of “the worst in the country?” As Breyer admired his handiwork, he concluded, “Now, I suspect that that’s manageable.”

Justice Sonia Sotomayor then picked up from there. When the GOP used social science methods to devise maps, the group in the locked hotel room ran enough models to know that the first one would not yield the results they wanted. “Your map drawer … started out with the Court plan, they created three or four different maps, they weren’t partisan enough. They created three or four more maps, they weren’t partisan enough. And they finally got to the final map, after maybe 10 different tries of making it more partisan, and they achieved a map that was the most partisan … And it worked. It worked better than they even expected.” “So,” she asked, “if it’s the most extreme map they could make, why isn’t that enough to prove partisan asymmetry and unconstitutional gerrymandering?”

They “kept going back to fix the map to make it more gerrymandered,” she noted. “That’s undisputed. People involved in the process had traditional maps that complied with traditional criteria and then went back and threw out those maps and created more—some that were more partisan … So why didn’t they take one of the earlier maps?”

Through all the oral arguments, it became clear. The conservatives on the bench had dug in behind Scalia’s claim in Vieth that partisan gerrymandering was not justiciable. And that it would sully the court to insert itself in the political process. Meanwhile, the liberals on the bench were greatly concerned about how absolute power had corrupted the democratic process absolutely.

Gerrymandering has a horrific effect on voter behavior. Those in competitive districts are more likely to vote; those in safe, uncompetitive districts stay home more often on Election Day. Just as Ginsburg surmised, there appears to be no “incentive to vote.” Moreover, that “redistricting dampens turnout in the subsequent election cycle, especially among black registrants.” The import for what this means to Democratic candidates is profound. “The drop in overall turnout among [African Americans] attributed to redistricting can produce sizable electoral effects.”

The damage to democracy is exacerbated by another feature of partisan gerrymandering: there are deliberately fewer competitive districts. Not surprisingly, then, in the 2016 election, 97 percent of incumbents in the U.S. House of Representatives won reelection.

The lack of accountability to the public, therefore, creates another vicious dynamic. On one hand, there’s the calcification inherent in one-party rule. On the other, there’s the internal party catalyst that pushes the agenda further and further to the extreme in order for challengers to differentiate themselves from what is now orthodoxy. Alabama governor George Wallace had called it being “out-niggered.” It creates a hardening in legislative positions that requires those in power to refuse to compromise or seek solutions across the political aisle for fear of running into a modern-day Ross Barnett, where even the most commonsensical stance (e.g., that lynchers should be brought to justice) becomes inflammatory and politically untenable.