There’s a fascinating history to what Joe Madison calls “James Crow, Esq., voting suppression”—and that history tells us what we can do to solve the problem of Republicans using the Help America Vote Act to block people from voting in largely Democratic areas.
It started with the 2000 election “debacle” in Florida.
The real debacle, of course, was the 5-4 decision of the Supreme Court that counting every vote in Florida would “cause irreparable harm to plaintiff George W. Bush,” so even though it was determined in late 2001 that Al Gore got more votes in Florida, Bush had already been installed in the White House.
But the debacle discussed in the media had to do with chads. After all the “hanging chad” folderol that year, Maryland Democratic Congressman Steny Hoyer reached out to Ohio Republican Congressman Bob Ney to collaboratively write legislation that would ensure that our elections could, after 200-plus years of mostly race-based “shenanigans,” actually make it easy and convenient for every eligible voter in America to both vote and have their vote counted. The result was the Help America Vote Act (HAVA) of 2002, aka HR 3295.
While the goal was noble, it hasn’t worked out as planned. Instead, the most pernicious actors in the GOP have found a way to completely reverse the intent—and defy the actual language—of that law, to make it much, much harder for people to vote and virtually guarantee that “some people” wouldn’t have their vote, even when cast, counted at all.
For example, in the last election, millions of people showed up at the polls (most famously in Georgia and Florida, but this was pervasive across red states) and were told that they weren’t on the voter list.
Although Secretaries of State purged an estimated 14 million people from the voting rolls in the 12 months leading up to the 2018 election, with virtually all of the questionable purges taking place in Republican-controlled states, HAVA requires that people who show up but are not listed on the voter rolls (almost always because they were purged) be given a “provisional ballot.”
The law specifies that people should be informed that the ballot may not be counted unless they can be verified as being filled out by a legitimate voter, and that it’s the responsibility of state election officials to do that verification in a timely manner so those votes can be counted.
“The main reason we did that,” former Congressman Bob Ney, the principal author of the bill, told me, “was because, particularly across the Deep South, people were simply being turned away at the polls. In most cases it was because they were Black, but in many cases it was also being done in districts where the opposition party controlled most of the election apparatus, typically Republicans turning away people in Democratic districts.
“We wanted to make sure,” he added, “that every eligible voter had both a chance to vote and some level of certainty that his or her vote would be counted after they went to all the trouble of voting.”
Thus, the law explicitly requires voters whose names are not found on the current rolls be offered a provisional ballot, and requires voting officials to make an effort to verify the voter’s identity so their vote can be counted in a timely manner.
But, as BBC/Guardian/Rolling Stone/Salon/independent investigative reporter Greg Palast found when he accompanied Martin Luther King Jr.’s 92-year-old cousin, Christine Jordan, to the polls in Georgia, poll workers repeatedly refused to give her even a “provisional” ballot.
After voting for half a century in the same place, she’d been purged from the rolls by Secretary of State and gubernatorial candidate Brian Kemp, who was running against the African-American State Senator Stacey Abrams.
Eventually, after multiple tries, Jordan got a provisional ballot, although the story doesn’t end there.
Palast also witnessed and videotaped numerous people in other majority-Black precincts being turned away without being offered provisional ballots, and when several people demanded one, they were turned down repeatedly (you can see the video on Greg’s site) before Greg got a lawyer on the phone and threatened them on her behalf. Even after that, though, Palast reports that election officials continued to illegally turn away people whom Kemp had purged from the rolls, and even the threat of calling lawyers didn’t always sway Georgia elections officials to give provisional ballots to African-American voters.
Across Georgia on Election Day, numerous people reported being refused provisional ballots; of the half-million or so Georgia voters purged in the previous year by Kemp, Palast’s reporting finds that a large number, if not a majority, of voters in Black and Hispanic precincts weren’t even offered a provisional ballot when they showed up and tried to vote.
But that’s only half the battle.
Once Ms. Jordan cast her provisional ballot in the district where she’d voted every year since her cousin (MLK) was assassinated in 1968, if she wanted it to be counted, she then, because she’d been purged, had to go to a county elections office and prove that she actually was who she said she was, and provide all the proper types of ID that red states now require. This is because Georgia, like most red states, has adopted variations on Koch-backed ALEC voter ID “model legislation.”
These ID laws typically suppress the votes from people of color, urban dwellers and poor people (who don’t own a car and therefore don’t have a driver’s license), the elderly (who no longer can drive—most ALEC-type laws will not recognize an expired license), and students (who may not yet have driver’s licenses and whose state-university-issued ID isn’t considered as “real” as a concealed carry permit, for example, in Texas).
What these targeted voting groups have in common, of course, is that the majority of the people in them vote Democratic.
At 92, Ms. Jordan asked Greg if he could find somebody to accompany her to help her stand in the line the day after the election to show her ID and prove she was a legal voter. But in Kemp’s Georgia, even that didn’t guarantee that her vote would be counted.
This process—which has spread across red state America like a cancer since 2003—flips American notions of due process on their head.
The foundation of American law is that people are “innocent until proven guilty.” It’s a concept that goes back to the Roman Republic’s dictum ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).
Instead, the way the HAVA law has been interpreted/implemented is that voters whose names have “disappeared” from the rolls are guilty—and, therefore their vote won’t be counted—until they go through the arduous and time-consuming process of proving that they’re innocent/legitimate voters.
“You’re presumed guilty until you prove your own innocence” was the system used in feudal Europe for a millennium, specifically to advantage the rich and powerful at the expense of the poor. To use it against American voters, after all the blood shed to gain the right to vote, is obscene.
When I asked former Congressman Ney about how the law he helped write had been turned on its head, and pointed out that it was soon after 2002 that the GOP started darkly (pun intended) rumormongering about “voter fraud,” he told me he’d been furious about it for years.
Ney said, “Ken Blackwell was doing this sort of thing in Ohio—which I represented—in the 2004 election, and when I confronted him about it he was very upset with me. But they kept at it.”
And now it’s spread all across the nation, to virtually every single Republican-controlled state.
The consequence is that America is the only developed country in the world where exit polls can no longer reliably predict election outcomes within minutes of the polls closing. We (and the UN) used exit polls in Ukraine, Serbia, and the nation of Georgia to flip elections in the past two decades, pointing out that the “official” outcome was more than 2 percent different from the exit polls, a clear and reliable indicator of fraud having been committed by the people running the elections.
From the early exit polls of the 1950s until the 2004 election, exit polls were also a reliable indicator of who won elections in the U.S., and news organizations frequently used to call elections even before all the votes were counted based on the exit poll outcomes.
But then this weird thing called “red shift” began to happen here, starting in a small way in 1998 but exploding after HAVA was passed in 2002.
For example, in the 2016 election, the exit polls showed Hillary Clinton carrying Florida by 47.7 percent to Trump’s 46.4 percent, although the “actual” counted vote had Trump winning by 49.0 percent to 47.8 percent. Trump gained 2.5 percentage points… somehow.
In North Carolina, exit polls showed Clinton winning 48.6 percent to 46.5 percent, but the votes that were counted turned out at Trump 49.9 to Clinton’s 46.1, a red shift of 5.9 percentage points for the GOP.
Pennsylvania’s exit polls showed Clinton won 50.5 percent to Trump’s 46.1 percent, but when “eligible” votes were counted, Trump carried the state 48.8 percent to 47.6 percent—a red shift of 5.6 percentage points.
In Wisconsin, it was Clinton beating Trump in the exit polls 48.2 percent to 44.3 percent, but the “real” count put Trump over the top 48.8 percent to 47.6 percent, a red shift of 5.1 percentage points.
Perhaps even more interesting, in blue states not run by Republican Secretaries of State, there is virtually no shift at all, either red or blue. The election results typically comport with the exit polls in those states.
Red shift has been known among both Democratic consultants and election integrity workers since it was first publicized widely after the elections of the early 2000s, and generally the finger of blame was pointed at either maliciously programmed or “faulty” voting machines (although if it was “faulty” machines, there should also be an equal amount of blue shift, which has never been documented in any consequential way).
While insecure, privatized, no-paper-trail voting machines like those used in Georgia may well play a role in red shift, it’s far more likely, given how aggressive Republicans have been about voter purges since the passage of HAVA, that voter purges are the main cause.
In June, the Roberts Supreme Court said, in a 5-4 decision involving Ohio, that Kemp and other GOP elections officials could use a voter skipping two elections as evidence the voter had moved away—and therefore could be purged from the rolls. The result: “Address hygiene” experts hired by Palast found no fewer than 340,134 Georgians wrongly purged for relocating when they’d never moved. This was repeated throughout the red states.
Thus, the biggest cause for exit poll anomalies is almost certainly purged voters who show up at the polls thinking they’re still on the rolls, voting a provisional ballot not knowing it won’t be counted, and then telling exit pollsters as they leave polling places that they voted for the Democrat.
The exit pollsters, thinking this was a “real voter who cast a real vote,” duly record it, and end up shocked when their polls don’t reflect “reality.”
This has become so problematic in the United States—uniquely among the world’s 36 Organization for Economic Cooperation and Development (OECD) advanced democracies—that since 2004, several polling companies have either gone out of business or quit the business of exit polls. The few remaining have shifted their focus from, “For whom did you vote?” to “What issues influenced your vote?”
Thomas Paine famously said, “The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”
It’s profoundly ironic that the descendants of slaves are the principal victims of this nationwide GOP effort. Legislation is needed immediately to criminalize such behavior on the part of state election officials.