Voter suppression, challenges to democracy at play in upcoming election, Gardner says

A global trend towards authoritarianism is a catalyst for voter suppression tactics evident in this year’s presidential election, warns James A. Gardner, SUNY Distinguished Professor of Law and a nationally recognized election law scholar.

Gardner, Bridget and Thomas Black Professor in the School of Law, suggests the “authoritarian’s playbook” includes a number of democracy-eroding strategies. The most relevant to voter suppression are attempts to rig the electoral rules and gain control over the body that runs the election.

Gardner recognizes two common “points of attack” in the U.S. related to rigging the electoral rules.

“Number one is to attack voter eligibility so people can’t become eligible to vote,” he says. “And number two, if that doesn’t work, is to suppress voting by those who have managed to clear the hurdles of eligibility.

“One of the most extreme attacks on eligibility is demanding documentary proof of citizenship.”

The strictest laws of this type are in Kansas and Arizona, where they have had an important effect, Gardner says. “In Kansas, 20% of new registrations were suspended for lack of adequate proof of citizenship,” he says. “And it just turns out that Democrats were one and a half times more likely than Republicans to have their registrations suspended.”

Another tactic, according to Gardner, is registration purges, with Ohio, Florida and Kansas being the most active examples.

“Ohio is really, unbelievably extreme,” he says. “In a five-year period, Ohio’s secretary of state, Jon Husted, purged 2 million names from the roles, which he claimed — inaccurately — were names of people who did not exist or who were no longer alive, suggesting that those names were just floating around to be used by voters waiting to impersonate them. More than twice as many names that were purged were from Democratic-leaning, rather than Republican-leaning, neighborhoods.”

Gardner says authorities have also tried to make it more difficult for voters to register. Florida, for example, passed a law that imposed “onerous fines” on civic groups that engaged in voter-registration drives. Fines were imposed for failure to turn in new registrations within 48 hours, and for failure to maintain burdensome and copious records.

“So burdensome was this law,” Gardner says, “that two major get-out-the-vote groups, the League of Women Voters and Rock the Vote — well-known to be non-partisan — suspended their drives and had to sue the state before they could take another step.”

Texas passed a law that prohibited registration drives except by officially appointed “volunteers.” “In other words, they had to have approval of the state to go out and engage in voter registration drives,” he says. “And approval requires a training course offered only intermittently. Obviously, this is designed to deter people from engaging in voter-registration drives at all.”

Even when eligibility is not at issue, such suppression tactics as strict voter-identification requirements often come into play, including highly selective documentation requirements. Gardner suggests the most egregious examples are in Texas and Tennessee, where gun licenses are accepted, but not student IDs.

A number of states have enacted measures to make voting inconvenient. These include shrinking the early voting period, reducing hours of operation and reducing the number of polling places.

“These same states are resisting measures to enhance convenience,” says Gardner, “such as the use of absentee voting in response to COVID, or the use of ballot drop boxes at polling places so that people do not have to use the mail.” 

Another tactic in the “authoritarian’s playbook” includes gaining control over the body that runs elections, Gardner says. In the U.S., that means controlling the state legislatures through gerrymandering.

In 2010, Republicans introduced a nationwide redistricting plan called REDMAP. “The plan was so successful,” he says, “that Republicans were able to flip control of Congress entirely.

“In 2018, in North Carolina, immediately following the election of a Democratic governor — but before he was able to take office — the Republican-controlled state legislature stripped the Governor’s Office of its long-held power to appoint members to the state election board,” he adds, noting the legislature’s action was ultimately blocked by the North Carolina State Supreme Court under the state constitution.

Typically, elections are governed by state law with very limited exceptions. “That has changed this cycle because of the pandemic,” Gardner says. “With the pandemic, suddenly the postal service has a big role in elections, although not an official role, and this is a lever by which the federal government may be able to affect the election results.”

Voter suppression in its various and evolving forms is dangerous because it is a “kind of cheating,” Gardner says. “It’s a cheating of the rules of democracy and a threat to electoral legitimacy. It’s a threat to the claim election winners can make that they are legitimate holders of power.”

But today, the threat goes far beyond that, Gardner stresses. “The United States is deeply in the midst of a worldwide trend towards populist authoritarianism. What’s at stake is liberal democracy itself.”