The League of Women Voters “has been pretty concerned about these statements, because of the chance of intimidation and discrimination,” says Lloyd Leonard, the League’s senior advocacy director. The League is one of several voting-rights groups rounding up volunteers to help to forestall disruptions or challenges at the polls, which could lead at least to long lines, and at worst to voter suppression.
With his dark warnings that “a lot of bad things happen” and that his supporters should “go check out areas”—read African American and Latino neighborhoods—to guard against fraud, Trump is not just playing to some of his largely white voters’ ugliest instincts. He’s also peddling a voter fraud myth that’s been discredited by empirical research, and that is no longer holding up in court.
One definitive study turned up just 31 instances of credible voter fraud out of one billion ballots cast over a 15-year period. Researchers studying a rash of voter-ID laws enacted over the last decade, ostensibly to combat this supposed fraud, have found that such restrictions blocked thousands of largely African American, Latino, and mixed-race voters from the polls.
“The research that I have done suggests that there is, in fact, a widespread burden on ethnic and minority voters,” says Zoltan Hajnal, a professor of political science at the University of California at San Diego. “In particular, it shows that the turnout gap between white, and racial and ethnic minorities typically doubles—and sometimes triples—when strict ID laws are put in place.”
The factual record had not yet been established when Republican-appointed justices on the Supreme Court upheld the nation’s first-ever sweeping voter-ID law in 2008. In Crawford v. Marion County Election Board, a Court majority found that Indiana’s law was both “amply justified” to prevent fraud, and imposed a minimum burden on voters. During oral arguments, Chief Justice John G. Roberts Jr. chided those challenging the law that they “had not come up with a single instance of somebody who was denied the right to vote because they didn’t have a photo ID.”
During that argument, several justices also harped on the notion that voters might impersonate dead people, evoking a caricature of long-gone machine-style politics. As Justice Stephen G. Breyer put it then: “It used to be common, maybe urban legends, but [stories] of political bosses voting whole graveyards of dead people.” Lawyer Paul M. Smith argued in vain on behalf of the law’s challengers that the case “was brought to try to prevent an irreparable loss of constitutional rights in advance of the implementation of this law.”
Since that ruling, the record has shifted dramatically in favor of those who say voter-ID laws set out to remedy a non-existent problem and impose a discriminatory burden on low-income, minority, young, and elderly voters who disproportionately lack driver’s licenses or other photo identification.
“The factual situation is now very different,” says Leonard of the League of Women Voters. “There is clear evidence of the negative impact of voter ID, and there is even more evidence that in-person voter fraud is infinitesimal when you look at the size of the electorate.”
Even Richard Posner, the famously conservative federal appeals court judge who first upheld Indiana’s voter-ID law in 2007, glibly dismissing the “very slight costs in time or bother or out-of-pocket expense” of getting an ID, has since had a change of heart. As Wendy Weiser, director of the Brennan Center for Justice’s Democracy Program, has noted, Posner has since then said he was wrong to “uphold a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.”
That helps explain why federal courts in North Carolina, Wisconsin, and Texas have this year softened or rejected strict voter-ID laws in those states. In North Carolina, a three-judge federal appeals panel rejected that state’s voter-ID provisions as unconstitutional because, as one judge put it, they targeted African American voters with “almost surgical precision.” The Supreme Court, now split 4–4 between conservatives and liberals, let that ruling stand. In Texas, a federal district court relaxed the state’s rigid photo-ID rules to permit voters to use other forms of identification, such as a paycheck or a utility bill, to vote. In Wisconsin, a federal trial court ruled that voters who couldn’t meet the state’s stringent ID rules could vote by affidavit.
Several federal judges have openly chastised GOP lawmakers for enacting restrictions that appear tailored to make it harder for certain categories of voters typically friendly to Democrats—students, voters of color—to cast ballots. In Wisconsin, a former Republican aide testified in court that state legislators had been “giddy” that the photo-ID law would keep young and minority voters from the polls.
“I am persuaded that this law was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose,” said U.S. District Judge James Peterson in August on overturning key provisions of the law. “The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”
Voting-rights advocates are hardly sanguine. Even as some federal courts challenge restrictive voter rules, many state officials are looking for ways to sidestep or openly flout what the courts have ordered them to do.
“There are some shenanigans going on out there,” says Leonard. “It brings us back to the election director’s prayer: Please, God, don’t let it be close.”
The real future of voting rights, of course, hangs on this election’s outcome. In recent months, the evenly divided high court, split 4–4 following the death of Justice Antonin Scalia, has simply let lower court rulings stand without revisiting the constitutionality of voter-ID laws. That will invariably change after Election Day, when either Trump or Hillary Clinton wins the power to appoint a tie-breaking justice. Little wonder that Trump has reverted to a familiar, if increasingly discredited, GOP playbook of fraud warnings and ballot box intimidation.