Ron Fein is the legal director of Free Speech For People (FSFP), a national nonprofit organization, founded on the day of the US Supreme Court’s ruling in Citizens United v. FEC and dedicated to defending our democracy and our Constitution. John Bonifaz is FSFP’s co-founder and president. Ben Clements is FSFP’s board chair and senior legal advisor.
The presidential inauguration was less than two months ago, and yet voting rights are already under serious threat around the country.
To understand the scope of this threat, it’s helpful to understand the motivation. Despite all of the voter suppression efforts, threats of voter intimidation and a raging pandemic, the people of the United States participated in record numbers in last November’s election. Voter turnout was 66.3% — the highest since 1900. And they voted Trump out. His baseless efforts in courts and state legislatures to overturn the election results came to nothing. Then a few weeks later, with control of the Senate in the balance, the people of Georgia voted out two of Trump’s biggest Senate supporters. Finally, as a last-ditch effort, Trump’s “Stop the Steal” movement tried to stop the official counting of electoral votes, culminating in a violent takeover of the US Capitol.
In the end, none of it worked. But Trump and his supporters have learned a valuable lesson: it’s much harder to overturn the results of an election after people have already voted than it is to simply prevent the “wrong people” from voting in the first place. How will they do that?
The first prong of the strategy is state legislation. Over 250 bills have been introduced in 43 states to make it harder to register and/or vote. These bills aim to disenfranchise millions of Americans — especially people of color — by the following tactics:
Don’t let them vote early or by mail. More than half of all voters in the 2020 election voted either early in person or by mail (sometimes called absentee) ballots. Some bills reduce the number of days or the hours that early voting sites are open — including by specifically targeting the Sunday early voting often encouraged by Black churches. And many bills would limit who can vote by mail (e.g., by requiring a specific documented “excuse”); make it harder to obtain a mail ballot (e.g., by eliminating a permanent absentee voter list); make it harder to vote a mail ballot (e.g., by requiring the ballot to be notarized); and/or make it harder to submit a mail ballot (e.g., by requiring it to be returned in person).
Don’t let them vote in person. Various state bills would impose new or stricter photo identification requirements for voters (e.g., banning student IDs) or ban offering food or water to voters stuck in long lines.
Don’t let them register to vote. Various state bills would eliminate automatic voter registration, eliminate or limit same-day registration and require written proof of citizenship in order to register to vote.
If they’ve somehow managed to register, then “purge” them from the rolls. Various state bills would require or allow election officials to de-register a registered voter based on questionable assumptions, e.g., requiring officials to compare voter rolls to various unrelated databases, ostensibly to identify noncitizens.
That’s the more genteel, refined prong of the strategy: legislators passing laws to make it harder to register and vote. But there’s a second, rougher tactic as well: voter intimidation.
Modern voter intimidation combines the latest technology and the worst pathologies of our current era. For example, in August 2020, pro-Trump provocateurs placed 85,000 robocalls to cities with large numbers of Black voters and other voters of color, such as Detroit and New York City, raising spurious doubts about the reliability of mail-in voting.
But some forms of voter intimidation may be distinctly more violent. Despite the initial impression of the January 6 insurrectionists as a rough but ragtag band, they’ve turned out to be disproportionately current or former police or military, and they take Trump’s call for a “Trump Army” literally as well as seriously. In October, we sued and won a preliminary injunction against a private mercenary company that was recruiting ex-special forces operatives to patrol polling places in Minnesota. According to the company president, these elite soldiers would confront perceived “antifa” members or supporters of the Black Lives Matter movement. Without further action, we may see more of this phenomenon.
We must fight on several fronts: defensively against state legislation to make it harder to register or vote; affirmatively for federal (including both the For the People Act and the John Lewis Voting Rights Advancement Act) and state legislation to expand or make permanent measures that make it easier for all citizens to vote; and affirmatively in court to enforce the laws vigorously to protect the right to vote. Together, we can ensure free and fair elections in the United States.
Bill Moyers talked with John Bonifaz and Ben Clements in October, 2020.