Current Election Rules Incentivize Voter Suppression

The way we elect the United States president awards all electoral votes for each state to the winner of that state’s popular vote. Any margin of victory in a handful of pivotal states is all that matters. Winning more votes nationally than the other candidate – even millions of more votes ­– does not.  This is the winner-take-all method, neither cited in the U.S. Constitution nor common nationally until the election of 1824. But as a result of this system, currently implemented in 48 states plus DC (every state except Maine and Nebraska), voter suppression efforts can really pay off, even when only a relatively small number of people are disenfranchised. Thus, even minor interference in our presidential elections can and still does have the power to influence the outcome. This will remain a foreseeable problem so long as our system rewards the winner of the plurality in each state with 100 percent of the electoral votes, while ignoring the margin of victory both in-state and in the national popular vote.

Consider Georgia. No Democratic presidential nominee has won the state since Bill Clinton in 1992. Nevertheless, based on recent elections, a potential victory may be on the horizon for Democrats. But the party must first overcome the recent attacks on voters' rights. The state’s chief elections official, Secretary of State Brian Kemp, who is also the Republican nominee for governor, has been described as “a master of voter suppression." Voting policies since Kemp took office in 2010 have disproportionately disenfranchised African-Americans, Latinos, and Asians. His legacy has included “hackable polling machines, voter roll purges, refusing to register voters until after an election, [and] the use of investigations to intimidate groups registering minorities to vote.”

Kemp has raised the specter of voter fraud by Democrats repeatedly and organized investigations into groups that registered almost 200,000 Asian-American and African American voters. Yet none of his multiple investigations ever resulted in a conviction. While unsuccessful in court, however, these cases have placed voter registration efforts under intense legal scrutiny, "cast[ing] a pall of criminality on the state’s largest effort to register minority voters," writes the New Republic.

Kemp has also managed to winnow down the voter rolls using a version of the infamous CrossCheck voter database software, which has the ostensible purpose of stopping voters from voting in multiple states but has actually been found to produce so many false positives that it resulted in a 99% error rate. The program disqualifies eligible voters for the smallest and most superficial errors in paperwork, such as a misplaced hyphen or slight misspelling, or any difference between information on a voter registration form and a driver’s license or social security card. By using this software, Kemp succeeded in removing at least 35,000 people from the voter rolls. A clear demographic pattern emerged, reflecting historic disenfranchisement of minorities:  although African Americans made up only one third of registered voters in Georgia, they made up 66% of those purged from voter rolls.  African American voters tend to vote for Democratic candidates by a wide margin.

Civil rights groups argue that such transparent attempts to suppress black Americans from voting have flourished in the wake of the Supreme Court’s decision in Shelby County v. Holder.  In that case, the Supreme Court struck down key provisions of the 1965 Voting Rights’ Act that required federal approval of changes to voting laws in states that had historically denied African Americans the right to vote. Election tampering, voter I.D. requirements, purging of voter rolls, accessibility impediments, and other restrictive measures designed to disenfranchise minority voters have become rampant not only in Georgia but in many other states as well. In  2016, fourteen states had new restrictive voting measures in place for the general election.

Why target minority voters now? Demographics are changing across Georgia. Republicans have acknowledged that Georgia is no longer “a national afterthought for either side anymore.” As pollster Mark Rountree noted, it has become a “light-red state.”  And Kemp himself has been forthright about his concern:

“Democrats are working hard, and all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines,” Kemp told a group of Republicans in an Atlanta suburb on July 12th [in 2015]. “If they can do that, they can win these elections in November.”

The gubernatorial match-up this fall is between Kemp and Democratic House Minority Leader Stacey Abrams, who if victorious, would become Georgia’s first African-American governor. In Georgia, the African-American community is large enough that, if its voter registration and polling numbers reflect its population size, the state could elect a Democratic governor for the first time in 20 years. This has been the goal of Abrams’ historic campaign. Whereas previous Democratic candidates for governor have targeted white suburban voters, Abrams has focused her efforts on appealing to black voters in every county, including younger voters who have moved for work from other states to the Atlanta metropolitan area. Both sides are prepared for a close election, which could have major ramifications for the 2020 presidential campaign, since Abrams could potentially reverse Kemp’s legacy of voter suppression efforts. (President Trump endorsed Kemp in the primary.)

If Kemp’s efforts continue to succeed and others follow suit, state-level voter suppression tactics could make enough difference to change the results of a presidential election in the future. Although attempts to suppress voting affect relatively small numbers of voters in a given state, these can be decisive in close elections. The winner of any plurality – regardless of how small the margin of victory is – receives the entire slate of electors for that state.   Slim victories in just a handful of states for one candidate can thus supersede several million votes nationwide for the opponent. This creates a major incentive for presidential candidates to win toss-up states and encourages anti-democratic strategies like voter suppression. Tiny margins of victory decided several bellwether states in 2016, so in 2020 and beyond interfering with voting rights will have the potential for an astronomical rate-of-return. Any small, strategically targeted blow to turnout in a large enough pivotal state could determine the winner of the presidency.

For any party to have a vested interest in keeping eligible voters out of the polls means that our system is broken; such incentives themselves are plainly undemocratic and encourage chicanery, harassment, and discrimination. Shifting our system to one that recognizes the national popular vote would vastly limit the influence of voter suppression and other anti-democratic meddling in presidential elections. In a scenario in which over a hundred million votes actually mattered, voter suppression would more likely have a negligible effect on the final outcome.