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Election law is complicated. Election administration is complicated. What should not be complicated or controversial, however, is the idea of all legal voters being able to cast their votes.
Republicans across the country have been introducing legislation that would limit ballot access in the name of election security, with a notable focus on areas with high or increasing minority turnout. Given that this push is an extension of former President Donald Trump’s unsupported and in many cases disproven claims of election fraud, we’ve been skeptical from the start.
But it doesn’t take a skeptic to view some of these efforts as suppression camouflaged as security. Just listen to some of the arguments coming from Arizona Republicans; they’re demonstrating it with their own words.
“Not everybody wants to vote, and if somebody is uninterested in voting, that probably means that they’re totally uninformed on the issues,” Arizona Republican State Rep. John Kavanagh recently told CNN. “Quantity is important, but we have to look at the quality of votes, as well.”
That is basically like someone saying, “My informed vote is worth more than your uninformed vote.” This kind of thinking is not far off from the Jim Crow-era literacy tests that were used to disenfranchise black voters in the south.
In 2013, a divided Supreme Court struck down part of the Voting Rights Act, landmark legislation signed in 1965 that outlawed discriminatory voting practices which had been used in the south, including literacy tests. While the 5-4 majority in this Shelby County v. Holder ruling acknowledged that voting discrimination still exists, and left other parts of the law in place, it ruled that Section 4 of the act, which established a formula for covered jurisdictions to get pre-clearance from the federal government under Section 5 of the act before making election law-related changes, was unconstitutional because Congress had failed to update it.
“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in section 2,” Chief Justice John Roberts wrote for the majority. “We issue no holding on section 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”
Congress should take the court up on that invitation.
With Jim Crow logic on display from some state lawmakers, there’s good reason to bring back and update the fuller protections put in place to help tear down Jim Crow.
Do election security measures automatically amount to disenfranchisement? Of course not. Election security is a continued effort and one that must adapt with new technologies and new threats. The idea that several states have still been using paperless voting machines in some capacity, for example, is an obvious area of concern that these states should address. As the country saw in 2020, paper backups can be a critical failsafe amid election uncertainty.
But Arizona Republicans and their representatives have also pulled the curtain back and demonstrated that at least some of the current security arguments are less about securing elections for the voters, and more about securing election wins for their party.
In recent oral arguments before the Supreme Court about challenged election laws in Arizona, a Washington-based lawyer representing the Arizona Republican Party offered a startling response when Justice Amy Coney Barrett asked what interest the party has in keeping a current state election law on the books that a federal appeals court found to be discriminatory against minority voters.
“Because it puts us at a competitive disadvantage relative to Democrats,” Arizona GOP attorney Michael Carvin responded. “Politics is a zero-sum game. And every extra vote they get through unlawful interpretation of Section 2 hurts us, it’s the difference between winning an election 50-49 and losing an election 51 to 50.”
Americans should take these state Republican voices at their word when they indicate a belief that some votes are worth more than others, and say their concern in election law cases has to do with competitive advantage. And Republicans in Congress should distance themselves from these arguments by helping to re-strengthen voting protections at the federal level.
Election security and voter access efforts should be driven by a desire to protect the integrity of the electoral system for all legal voters, and should not be about protecting the interests of either political party.