“[N]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined” – Wesberry v Sanders, 376 US 1, 17 (1964)
During a public speaking course, I was once given Barack Obama’s inauguration speech and asked to read the first paragraph. It was a cringe-worthy moment for everyone in the room, and particularly me. I felt embarrassed and unworthy, unable to deliver the resonance demanded by the occasion and the words on the page. What struck me though, were the short sentences. The simple syntax. The power of brevity to deliver the most complex of messages.
Americans say things really well. They can bring on a ‘power moment’ better than any country I know. Take the above quote on voter rights. The heart swells with a shared sense of trans-Pacific, democratic pride.
Actions, however, speak louder than words.
For the most part, we keep things pretty big picture when comparing those ‘actions’ in the context of our respective electoral systems. In Australia, voting is compulsory. In America, voting is optional. Every now and again, a discussion about this distinction might take a minute of our time.
However, a recent court decision has opened my eyes. That poster child of a sophisticated democracy, the United States of America, has seen some of its member states turn vote rigging into a fine art. Some of them have such a history of bad behavior, their electoral practices have been kept under watch for decades. There is even a name for the court cases that scrutinize these laws: “voter denial cases”.
Donald Trump was therefore a tiny bit right when in August 2016 he he told a Pennsylvania rally, “I’m afraid the election’s gonna be rigged, I have to be honest”. However, he was fundamentally wrong about the potential cause. No, Hillary Clinton won’t be to blame. Rather, its his own friends with benefits, the GOP, that have a habit of getting into trouble.
GOP means Grand Old Party, although the Republican National Committee says the acronym dates back to 1875, when it meant Gallant Old Party.
North Carolina, a Southern state with a less than proud legacy of slavery, has a history of race discrimination and race-based vote suppression. A case in point: it used to have literacy tests to weed out ‘less deserving’ (and likely African-American) potential voters.
With this history in mind, between 1965 and 2013, North Carolina was one of a number of states subjected to a form of good behaviour bond. There was legislation in place (the Voting Rights Act), that only permitted such states to change their voting laws after a federal court or the Department of Justice was satisfied the new law did not “abridge the right to vote on account of race”.
The track record indicated that such oversight was required for good reason. Between 1980 to 2013, the Department of Justice issued North Carolina with over fifty objection letters to proposed election law changes, including several since 2000.
On 25 June 2013, however, this supervision ended after a constitutional challenge brought the law undone on the basis that such federal supervision was an impermissible intrusion on state autonomy (see U.S. Supreme Court, Shelby County v Holder, 570 U.S (2013)).
The case was brought by Shelby County, in Alabama, one of the states subjected to oversight for having entrenched racial discrimination in voting laws or practices.
What happened in North Carolina immediately after it was permitted autonomy in its voting laws or practices, is a salutary lesson in how “the right to vote” can be a hollow promise.
North Carolina’s 2013 Voter Denial Laws
A few months before the Shelby County decision, Pat McCrory had been elected Governor of North Carolina. His swearing-in gave the Republicans complete control of state government. Mr McCrory has a developing history for making controversial decisions in his relatively short tenure. For instance, he is responsible for having signed into law the requirement that people can only use government bathrooms in North Carolina if they correspond to their ‘birth’ gender identity, causing a huge outcry from the transgender community and others on their behalf, and a general boycott of North Carolina by a range of companies and celebrities.
Mr McCrory also opted the state out of an expanded Medicaid program that would have provided healthcare coverage to 500,000 North Carolinians. He has also permitted fracking in North Carolina for the first time.
In their apparent excitement to make voting laws on their own for the first time for almost 50 years, within two months of being allowed to do so, Mr McCrory and his fellow Republicans rushed through what they called an “omnibus” of changes to voting laws.
The United States Court of Appeals, that eventually struck down those laws for their discriminatory intent and effect, highlighted some of the lowlights in an illuminating judgment:
- The new provisions targeted African Americans with “almost surgical precision”.
- Before enacting the law, the legislature requested data on the use, by race, of a number of voting practices.
- The General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.
- The law required in-person voters to show certain photo IDs, which African Americans disproportionately lacked (those issued by the Department of Motor Vehicles), and eliminated or reduced registration and voting access tools that African Americans disproportionately used (e.g. early voting, the first week of which was eliminated).
- By eliminating a week of early voting, the General Assembly eradicated one of two “souls-to-the-polls” Sundays in which African American churches provided transportation to voters.
- In what the court called “as close to a smoking gun as we are likely to see in modern times”, the state had acknowledged that counties with Sunday voting were “disproportionately black” and “disproportionately Democratic”.
- Same day registration was also eliminated, a mechanism that provided those who moved frequently, and with low literacy skills, an easy avenue to re-register and receive personal assistance from poll workers.
- Out-of-precinct voting (where voters appeared in the wrong precinct, but in the correct county) was eliminated, in circumstances where the racial data had showed that African Americans disproportionately voted in this manner because they either moved more frequently or mistook a voting site as being in their correct precinct.
- Pre-registration was also eliminated, again something African Americans had disproportionately used – this had permitted 16 and 17 year olds, when obtaining drivers’ licenses or attending mandatory high school registration drives, to identify themselves and indicate their intention to vote.
- “Politics as usual” for North Carolina, “translates into race-based discrimination”.
Republicans – ‘It’s not us; it’s voter fraud’
When the voter denial bill was rushed through, even some fellow Republicans were dismayed. “You can paint a turd and sell it as art, but it’s still a turd”, said Republican congressional candidate Jason Thigpen. Or, “What it really says to the minority voters is… ‘We really are sort-of punishing you’”, said former Republican Secretary of State, Colin Powell.
Pat McCrory, however, was not to be deterred. “First of all, we didn’t shorten early voting, we compacted the calendar”, he said.
The Republicans also put forward an alternative explanation for the omnibus voting laws, claiming that they were just trying to “combat voter fraud and promote public confidence in the electoral system”.
The appeals court gave this argument short shrift. The state had failed to identify even a single individual who had ever been charged with committing in-person voter fraud in North Carolina.
The only evidence of voter fraud concerned mail-in absentee voter fraud. However, the absentee voting laws remained unaffected. Why so? Well, it was found, whites disproportionately used absentee voting.
Indeed, the General Assembly had exempted absentee voting from the photo ID requirement in the 2013 laws, even in the face of a specific request from a bipartisan body that it remedy the potential for mail-in absentee voter fraud.
What’s in it for the Republicans?
Simply put, African Americans in North Carolina overwhelmingly vote Democrat.
In 2004, 85% of African American voters in North Carolina voted for John Kerry. In 2008 95% of North Carolinians voted for President Obama.
Further, in recent years, African Americans have begun registering and voting in unprecedented numbers. Much of the recent success of Democratic candidates in North Carolina, it was found, resulted from African American voters overcoming historical barriers and making their voices hear to a degree unmatched in modern history.
As the court said: “Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of a race-based hatred and despite the obvious political dynamics”. In other words, the court would not permit such ‘politics as usual’.
Surely we’re fine in Australia?
Some Australians, such as me, reading this analysis of things gone wrong in the United States, might allow themselves to relax a little, to think, Only in America.
Yet, is that really the case? Or do we need to be hyper-vigilant because the concept of vote manipulation sits on a sliding scale of ‘100% integrity’ through to ‘mildly uncomfortable’ to ‘watch this space’ to ‘downright illegal’?
‘Vote rigging’ suggests that some form of dishonesty is involved. Perhaps in Australia we can pat ourselves on the back and say ‘we don’t do that’. However, outcomes can be manipulated by insidious means. It is important to remind ourselves that democracy does not start and finish with ‘the right to vote’ and compulsory versus optional voting. The imposition of limits can fly under the radar in a way that rarely catches the populist public eye.
Vote rigging: the subversion of an election by altering the numbers of votes cast or other dishonest means of achieving a desired result – Macquarie Dictionary
Consider some Australian examples below, and test whether you are 100% comfortable with them, noting that each is perfectly lawful:
- If you are serving a full-time prison sentence, and your sentence is three years or longer, you are not entitled to vote until you are released from prison.
- Bob Day was so concerned about the changes to the Senate ballot form at the last election, he took it to the High Court, and lost, the court rejecting his claim that the purpose was to prevent minor parties from using minor preference deals to turn a small primary vote into a Senate spot (see report here).
- Unlike Brexit (where the referendum question was a simple ‘remain’ or ‘leave’ the EU), the question put to the Australian people when in 1999 we decided whether or not to become a republic was (yes / no): “To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament”. Such a loaded question split the Republican vote down the middle, giving the John Howard-led conservative government the outcome it sought.
When studying law, the ‘separation of powers’ doctrine was a particularly tedious session squashed between lunch and drinks at the pub. It essentially means that when Parliament legislates something really off the grid, the courts step in to stop it, which is why it’s important that the government and courts are not BFFs.
The North Carolina scenario illustrates that at least one part of the US democratic system is working well, namely, the ability of the courts to step in (even if on appeal as was the case here) and put a halt to laws intended to have a detrimental impact on a segment of the population.
Meanwhile, in North Carolina, and absent any further appeal, current polls in the battle between Donald Trump and Hillary Clinton for the Presidency have the state as a “toss up”, with Ms Clinton narrowly ahead. A close contest, observers can hopefully now be more confident it will be a fair one.