NOW that he is slumping in the polls, Donald Trump is
pivoting from campaign-trail braggadocio to conspiracy theorising. “I would not
be surprised”, he said, “if the election is rigged”. Mr Trump’s exhibit A for
this hunch is a wave of federal court decisions striking down or softening
restrictive voting laws in six states. These decisions, the GOP nominee
suggests, are mistaken and unfair. They will, he warns, open the floodgates to
funny business at the polls, including people casting multiple ballots.
Studies show those concerns are misplaced: rates of
voter impersonation, the type of fraud that voter ID laws are ostensibly
designed to combat, are vanishingly low. A review of more than a billion
ballots from 2000 to 2014 by Justin Levitt, an elections expert at Loyola Law
School, turned up just 31 episodes in which a voter may have posed as somebody
else to get access to the levers of democracy. There is no plausible scenario
in which one candidate’s supporters could steal the election through a
co-ordinated plot of ballot-box stuffing. But Mr Trump still has cause to
worry. If he manages to claw back toward even in national polls and in some
swing states, these rulings may indeed represent an obstacle to victory.
Hundreds of thousands of people who are most likely to vote against him—blacks,
Hispanics, Native Americans and the poor—will be less likely to be turned away
on election day.
The laws that have been falling in court like dominos
are all the product of Republican-held state legislatures, passed in recent
years in the hopes of securing GOP electoral success. All have been found to
violate the constitution, the Voting Rights Act, or both, because of their
disproportionate impact on racial minorities. In Texas, a strict voter-ID law
could have kept over 600,000 voters away from the polls, with blacks three
times as likely as whites to lack the approved forms of ID. But following a
vote of 9-6 at the 5th Circuit Court of Appeals (with several
Republican-appointed judges in the majority), Texas was forced rethink its law
and will now accept a wide variety of identifying papers at the polls. In North
Carolina, the 4th Circuit Court of Appeals found that legislators in the Tar
Heel state had taken laser-like aim at the rising clout of black voters by
reviewing data on blacks’ voting behaviour and then nixing just the
opportunities, like early voting and same-day registration, that they tended to
use most. North Carolina is asking the Supreme Court to step in, but with the
justices divided 4-4 along ideological lines, a fifth vote to reinstate the
restrictive law will be hard to come by.
With similar decisions easing rules in tipping-point
states like Wisconsin and Michigan, many Republican efforts to dampen the
Democratic vote appear to be for naught. But there are more than a dozen other
states where voting restrictions will be in place for the first time for the
2016 election, and litigation in six of those states (Arizona, Alabama,
Georgia, Ohio, Kansas and Virginia) is pending. A federal district court is
asking whether a purge of the voter rolls in Georgia illegally targeted black
voters. The 4th Circuit court is considering a challenge to Virginia’s voter-ID
law and the 6th Circuit court is reviewing a similar law in Ohio. The decisions
in these and other cases, expected within weeks, will determine the final
contours of the franchise in the 2016 election.
But by now it is clear that Mr
Trump’s conspiracy theory has things backwards. It was the Republican Party
that tried to rig the election in their favour by passing laws aimed at
depressing turnout among voters who prefer Democrats; the courts are now
undoing those efforts.
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