Democracy under attack

In a close vote last week, the House passed legislation euphemistically called the Safeguard American Voter Eligibility Act (“SAVE Act”), a bill allegedly aimed at improving election security but actually intended to make voting more difficult, particularly for women, minorities and young people, the majority of whom vote Democratic. The bill seeks to accomplish that goal by amending the law governing federal voter registration to impose stricter identification requirements and limit voting by mail. Proponents of the bill try to make those changes sound reasonable and not only to folks who’ve been fed a steady diet of propaganda about election fraud. After all, they say, shouldn’t voting be limited to citizens? And if we have to show identification and comply with innumerable bureaucratic hurdles to do almost anything—drive a car, open a bank account, travel on an airplane—shouldn’t voting be the same?

First, the entire premise of the bill is false. Noncitizens are already prohibited from voting. State rules differ as to other aspects of the voter registration process, but all states require U.S. citizenship. The question is not whether you have to demonstrate citizenship to qualify as a voter in the United States. The question is which identification documents should have to be provided and how, a process the Trump Administration and Congressional Republicans are now trying to make more onerous.

Second, there’s no real election fraud problem in the United States. Despite repeated, unsupported accusations by President Trump and his supporters, various groups have searched and found no significant issues. As anyone who’s ever voted by mail knows, the process involves multiple layers of protections to prevent people from casting multiple ballots or other misconduct. Whatever minimal election fraud exists—the Brookings Institute uses the word “miniscule”—our current system is more than adequate to identify and punish it.

Most importantly, voting is different than driving a car or opening a bank account or traveling on an airplane. You don’t have a “right” to do any of those things. But the ability to elect our governmental leaders is the essence of being a citizen in a democracy. For that reason, the Supreme Court has long treated the right to vote as “fundamental.”

The intent of those lobbying for the SAVE Act is clear: to reduce the number of votes from perceived opponents. While that approach is both cowardly (you don’t have to prevent people from voting if you can convince them to support your policies) and arguably unwise (since the law will also make it more difficult for supporters to vote), it’s succeeded before. In its 2013 decision in Shelby County v. Holder, the Supreme Court struck down provisions of the Voting Rights Act of 1965 that required certain states with a history of discriminating against minority voters to seek preclearance from the Justice Department for any new or modified election laws. Within 24 hours of that decision, Texas announced that its previously enacted statute requiring voters to provide an unexpired photo ID from a list of only seven acceptable documents would take effect immediately, a move experts estimated impacted over 600,000 registered Texas voters. In addition to adopting stricter identification requirements, Georgia and other states closed numerous polling places in predominantly African American districts, requiring those voters to travel longer distances and face longer wait times to cast a ballot.

This past week, I had the chance to visit the Anne Frank Exhibition in New York City, a devastating recreation  of the building annex in Amsterdam in which Anne, her parents and sister, and four other Jews hid from the Nazis for over two years before being discovered and banished to concentration camps, where all but Anne’s father Otto were killed. The Exhibition went well beyond the famous annex itself. In presenting the earlier history of the Frank family, it used displays, objects, and multimedia to describe Germany’s economic devastation after World War I, the rise of Nazism, Adolf Hitler’s ascension to power, and the horrifying scope of the Nazi camp system. The Exhibition also showed what happened after the discovery of the Franks’ hiding place, including Otto Frank’s arduous trip home, his discovery of Anne’s journals, and the process by which The Diary of Anne Frank came to be published.

There’s much to be said about the Exhibition, and its relevance to our world today. For now, however, here’s one small lesson. One of the objects on display was something I’d never seen before: a copy of a “ballot” from Germany’s parliamentary elections in 1933 after the Nazis claimed complete power and outlawed their political opposition. The Nazis were the only party listed, with Hitler as its leader. Despite pretending to hold an election, Germany’s democracy was obviously dead.

As we approach the 250th anniversary of the Declaration of Independence, we’re going to be hearing a lot about the Revolutionary War and birth of the United States. Central to that origin story is the colonies’ resistance to rule by unaccountable British authorities. But if “no taxation without representation” meant anything, it meant the people must have a voice in their government’s decisions. Throughout our history, the battle has been over what “the people” means, but through constitutional amendments and legislation, the trend has been to expand the pool of eligible voters. Now the push is in the opposite direction, to reduce the number of people allowed to vote and to limit the ballot—not through obviously discriminatory (and illegal) poll taxes or tests but subtler, equally effective means. Because disincentivizing people to vote and making voting a big, expensive hassle means they’ll not only sit out the current election, they’ll be less likely to try again in the future.

The rules about voting are already complex. For two recent presidential elections, I volunteered for the Democratic Party’s Voter Assistance Hotline, answering questions from voters of both parties (yes, even self-identified Republicans) on a multitude of subjects: how to register to vote, how to get a mail ballot, where to find their local polling place, what documents they might need. Some issues were governed by federal and state law, others by rules adopted by county election officials. It can all be confusing, especially because the rules often change from election to election. Even relatively commonplace situations can raise questions. Where can college students vote, at school or at home? What options exist for people who have to work or travel on Election Day? What about homebound seniors or people living in nursing homes? What about people who forgot to register? People who suddenly get sick on Election Day? People who recently moved across county lines? The list goes on and on. I don’t know how many of these “special” situations arise; they seem frequent enough not to qualify as special at all. The actual number shouldn’t matter anyway. As supporters of the SAVE Act surely know, every vote counts, especially in close elections.

If you think I’m exaggerating about the impact of these kinds of administrative rules, ask yourself whether you’re one of the almost 50% of Americans who don’t have a passport. If not, do you have the time and the $165 to apply? Because one of the few acceptable forms of identification under the SAVE Act is a “valid”—meaning unexpired—United States passport. Don’t assume you can get one easily either. The State Department recently ordered certain nonprofit libraries to stop processing passport applications. And even after you’ve gotten a photo in the required format and complied with all the other precise requirements, “routine” applications can take up to eight weeks.

Forget the passport. Do you know where your original birth certificate is? Because under the SAVE Act, if all you have is a state-issued driver’s license (even a REAL ID), you’ll also need a certified copy of your birth certificate. And for married women who changed their names, do you know where your original marriage certificate is? Because for proof of citizenship, the Act requires that your “valid government-issued photo identification card” match the name on your original birth certificate.

Even if you have your own, original documents, does your elderly mother? Does your friend who moved ten times with her husband who’s in the military, or your other friend whose basement flooded in a hurricane? What if the law changed again to require only the REAL ID the federal government has been trying to roll out for over twenty years rather than a passport or any other document? Could you vote then?

Oh, and do you have time to visit your local election office in person? Because the SAVE Act prohibits the online voter registration process currently used in 42 states. The overall effect of all these provisions? The disenfranchisement of millions of American citizens.

With Senate passage of the SAVE Act uncertain, on Friday afternoon President Trump posted on Truth Social that he would issue an executive order seeking to achieve the same goals: “There will be Voter I.D. for the Midterm Elections, whether approved by Congress or not! . . . [A]nd No Mail-In Ballots, with exceptions for Military, Disability, Illness, or Travel.”

A President unilaterally declaring who is eligible to vote. In this instance, possibly in direct contravention of the legislature. If such an order were to be issued and upheld by the courts, democracy might not yet be dead in the United States. But it would certainly be dying.