President Trump appears to have had second thoughts about investigating mass voter fraud in the election he won. But that news may in the end be a side note in an era of pitched battles over whether voting in America is too easy or too hard.
A week after Mr. Trump vowed an investigation into his unsubstantiated claim that up to 5 million non-citizens voted in the November election, the White House told CNN it is no longer a priority. One likely reason: Previous investigations have found little evidence of any, let alone mass, instances of in-person voter fraud. Indeed, the bulk of peer-reviewed studies suggest that a potentially bigger problem is legal American voters discouraged, or even barred, from voting because of new restrictions. Another possible reason: Polls show that only 1 in 4 Americans agree that voter fraud is a serious issue.
Whether Trump ultimately orders an investigation, it's clear that, as liberals push to make voting easier, conservatives continue to advocate for stronger fraud defenses.
Ultimately, federal courts will decide, as states faced 13 major voting rights lawsuits going into the 2016 election.
“Voting litigation is increasing, not decreasing,” says Ned Foley, an election law professor at The Ohio State University, in Columbus. Judging by judicial outcomes so far, he says, “The main impression … is that when a law looks like it’s engaging in outright disenfranchisement of a valid voter, even conservative judges have been stopping that. [But] the judiciary is more tolerant with state legislatures adjusting issues of convenience and accessibility, if the adjustment is not outright disenfranchisement.”
Even without a federal investigation, the US is bracing for a new wave of legal and political skirmishes around the sanctity of voter rolls, the need for ID, impacts of redistricting, and, perhaps most critically, where, when, and how Americans can exercise their most fundamental right.
Across the US, there is a growing raft of voting rights cases. They seem likely to increase after new voting restrictions were passed in Michigan in a lame duck session and after Arkansas reintroduced a voter ID bill with language similar to one the state Supreme Court struck down two years ago as unconstitutional.
Some conservatives argue that such steps are legitimate, even necessary. To them, shoring up election procedures is less about fraud than fairness to conservative voters. J. Christian Adams, a former Department of Justice attorney, writes in The Hill that it's Democrats who have used civil rights law to create legal "black-brown" coalitions that "bolster Democratic power." He adds that, when it comes to voting rights, “race, power, federalism, state sovereignty and more race … is the battlespace.”
Views of immigrants play into perceptions of fraud
While just 1 in 4 Americans believes there is widespread voter fraud, research shows that belief is tied directly into negative views of immigrants. A study released this week found that “resenting immigrants is the strongest predictor of believing in rampant voter fraud, even after controlling for conventional political dispositions and socioeconomic characteristics."
The voter fraud push is part of “arousing sentiments against some illegal others who are ‘stealing our country from us,’ ” as Michael Halberstam, a professor at the University at Buffalo Law School, notes in an interview.
Electoral experts say the reality on the ground is very different. Repeated investigations – including by the Bush administration in the wake of the 2000 election – have not yielded anything more than what University of California, Irvine, law professor Rick Hasen has called “isolated, small-scale activities that often have not shown any kind of criminal intent.”
For their part, Democrats say that voter suppression, especially of minorities, is far more prevalent than fraud in the US.
Voting restrictions can sway voting decisions both directly and indirectly. In 2014, a study of a Texas congressional district found that 34,000 people chose not to vote because they didn’t think they had the right credentials under new and stricter voting rules.
"This is all about small percentages of voters,” says Neil Bradley, the former associate director of the ACLU’s Voting Rights Project. “But we’re a divided country, and small percentages of voters can determine an election.”
Voter ID trend
Until the most recent spate of voting restrictions were passed at the state level, much of the voting rights debate had taken place in Washington. President Clinton, for example, had to fight hard against Republicans before Congress passed the National Voter Registration Act of 1993, which made it easier for millions of Americans to register. Republicans gained the upper hand by ensuring the passage of the 2002 Help America Vote Act, which, after the contested Bush v. Gore election in 2000, created minimum election administration standards but also introduced voter ID requirements for the first time, opening the door, Democrats said, to disenfranchisement.
More recently, states began to experiment with strengthening voting rules, often with partisan overtones. Arizona and Ohio began the voter ID trend in 2006, followed by Georgia and Indiana, and now another five states. Five of those laws have been at least partially struck down by courts for being too onerous.
The 2013 Supreme Court case, Shelby County v. Holder, in which the court reduced federal oversight of primarily Southern states, also unleashed laws in North Carolina and Texas that sought to add new requirements to the vote. Appellate courts struck parts of those laws down, as well. This week, the city of Pasadena, Texas, became the first to earn federal oversight since that ruling, after city officials drew district lines in ways that disadvantaged Latinos.
A federal judge concluded that new Texas voter ID rules risk excluding some 600,000 legal voters from exercising their right. Though the Supreme Court declined to take that case in January, Supreme Court Chief Justice John Roberts signaled that the court may take the case as early as next fall.
Voter restrictions were put into place in 17 Republican-led states after the 2012 election, including cutbacks on early voting, which is utilized more often by Democrats, studies have found.
The Supreme Court's role
For all the challenge to the right to vote, there are countervailing protections. For one, more states – such as Oregon and Colorado – have passed laws expanding ease of voting rather than constricting it. Another key protector, in fact, could be Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, who, according to colleagues, holds “fairness” as a key judicial barometer. Judges are less prone to be swayed by "alternative facts" than the public, critics note.
By all evidence, “[Judge] Gorsuch will … conceive of his job as to be controlled by the law and the facts,” says Ohio State’s Mr. Foley, author of “Ballot Battles: The History of Disputed Elections in the United States.”
As voting rights skirmishes in the state build to a Supreme Court resolution, election law experts suggest that the underlying issue may in the end have little to do with partisan bickering.
“The question ultimately … should be: Does the state have the ability to make it harder to vote without a good reason for it?” says Professor Hasen, author of “The Voting Wars,” in an interview.