WEBINAR 1: GLOBAL CHALLENGES - The Comparative Constitutional Law and Politics of Voter Suppression
Michael PAL
11 November 2020
In the run up to Election Day on November 3, 2020 in the United States, allegations of “voter suppression” were a near daily occurrence. Long-standing concerns that strict voter identification laws or purges of voters’ lists unjustly deterred some voters from casting ballots were top of mind. Novel forms of voter suppression arguably also emerged as a consequence of the emphasis on mail-in voting in response to the COVID-19 pandemic. Disputes over whether ballots received after Election Day should be counted in swing states such as Wisconsin and Pennsylvania made it all the way to the Supreme Court. Texas’ decision to have a tiny number of “drop boxes” for mail-in ballots appeared to be a blatant attempt to make it harder to vote by mail.
While voter suppression is closely linked to the United States given its prevalence in litigation, political disputes, and scholarship, it needs to be understood as a more general phenomenon affecting democracies. In this blog post, I will set out the what, why, and how of voter suppression.
In brief, voter suppression is a foundational tactic in the attempt to undermine liberal democracy and to shift it toward electoral or competitive authoritarianism. It is a tactic that appeals to would-be autocrats or wobbly democrats where the costs of being perceived to end the universal franchise are too high or where institutional constraints reduce their other options. Rather than risk domestic protest or international condemnation for banning a group from voting or outlawing a rival political party, its perpetrators seek to impose a hybrid style regime where elections are held but are tightly managed so as to reduce the chances that the government will be replaced. Elections take place and ballots are cast and counted. The vote is largely designed, however, to legitimize the regime rather than reflect the actual popular will. It is not impossible for the opposition to win an election under such conditions, but it is designed to reduce the risk of it occurring. Voter suppression allows for the superficial veneer of liberal democracy to persist without truly free and fair elections.
What is Voter Suppression?
The term “voter suppression” gets tossed around to refer to a variety of different phenomena. There are four main types. First are laws designed to make it more difficult or costly to cast a ballot. Strict voter identification laws are the classic form of this type. Such laws are especially suspect if they appear to have differential impacts that coincide with partisan lines. The voter identification law in Texas, for example, has been heavily criticized for permitting hunting licences, but not student identity cards, with predictable partisan effects. Second are campaign tactics that attempt to dissuade voters from casting ballots, such as negative advertising. Such tactics are generally lawful. Third are attempts to interfere illegally in an electoral process. Foreign interference through social media platforms are a prominent example. A fourth type of voter suppression occurs when elections are administered so as to deter some from voting, such as through inadequate provision of resources resulting in long wait times.
I will focus here on the first type, laws designed to restrict access to the vote, because they raise the most challenging issues. Such laws may target different points of the electoral process, from voter identification, to registration, as well as mail-in voting. The tactic is to draft laws that are facially neutral and appeal to some broader normative goal that appears admirable on its own, such as ensuring electoral integrity or the prevention of fraud. While appealing to some lofty and otherwise admirable goal and not discriminatory on their surface , such laws are deliberately designed to achieve a differential impact on groups. The desired impact is to make it more costly or difficult for members of a group likely to vote for an opposing party or candidate to exercise their right to cast a ballot. For example, requiring identification that has a voter’s photograph and residence disadvantages citizens without driver’s licences in jurisdictions such as Canada where there is no national identification card. Racial minorities and the poor have been harmed by strict voter identification laws in the United States.
Why is There Voter Suppression?
Voter suppression is at one level a simple math problem. Political parties need votes to win elections. They can achieve the same result not just by adding votes, but also by subtracting them from the total of their opponents.
A law that makes it harder in practice for some groups to cast ballots relies on there being a partisan valence to the differential impact. The more durable the link between some group characteristic, such as race, and voting intentions or party affiliation, the more confidence that a would-be vote suppressor can have that the law will have the desired, nefarious impact. If Biden voters are known to disproportionately favour the use of mail-in ballots in comparison to Trump supporters, then laws making it more difficult to cast or count mail-in ballots are likely to decrease the chance that the Democrat will win. Voter suppression does not supply certainty, but it can shift the probabilities.
The voter suppression strategy relies on the reality of imperfect turnout in elections. Turnout in democratic elections is never 100%. Where voting is voluntary, political parties seek to increase the turnout of their base. Voter suppression, dissuading their opponents’ supporters from casting a ballot, can achieve the same end. If a large enough proportion of the opposing parties’ supporters can be dissuaded from voting, the impact of voter suppression may be enough to change electoral outcomes. Voter suppression would appear to be more likely to have an impact on outcomes in first past the post or mixed electoral systems where the marginal voter has greater value than under proportional representation.
One might plausibly think that mandatory voting eliminates the possibility for voter suppression. Even where voting is mandatory as in Australia, however, voter turnout is not truly 100% and voter suppression merely moves to other pressure points in the system, such as voter registration. For example, the Australian High Court in Rowe v. Electoral Commissioner struck down rules imposed by John Howard’s government that would have made it much harder for young voters, new immigrants, and the poor to register. All of those groups were likely to lean towards Labor, rather than Howard’s Liberal Party.
Voter suppression is also a response to the reality in democracies that an outright ban on voting by a minority group or political opponents would be widely perceived as illegitimate and will generally be struck down by courts. With notable exceptions such as over prisoner or non-resident voting, constitutional courts in democracies have converged around the notion that prohibiting a group outright from casting a ballot is suspect by default. Courts are likely to view such blatant manoeuvres with extreme skepticism. Generally, it will be difficult ban groups from voting, especially where they have long had access to the ballot box. Voter suppression seeks to achieve some of the same ends as an outright ban, but with less likelihood of being struck down by the courts. Capture of the courts of the kind seen in Hungary, Turkey, and Poland, or a formally independent but in actuality subservient judiciary, obviously changes the calculus. Voter suppression is often carried out in tandem with broader attempts to undermine democracy, such as by capturing or cowing the judicial branch or other institutional checks.
How Does Voter Suppression Puzzle Courts?
Courts have a much harder time identifying the harm in voter suppression than they do in the cancellation of elections or outright bans on groups voting. First, voter suppression puzzles courts partly because it raises the problem of pretextual motives. The state is limiting the right to vote by implementing restrictive laws. It claims to be doing so for laudable reasons that in the abstract might appear legitimate, but which do not hold up under scrutiny.
At the heart of claims in the political and legal realms is that voter suppression is necessary in the service of some higher goal. Usually that goal is the prevention of fraud or upholding of the integrity of the election. Fraud and a lack of integrity are self-evidently undesirable. The problem is that claims of fraud requiring, for example, strict voter identification, usually fail to clear a minimum evidentiary hurdle. Strict voter identification rules supposedly limit in-person fraud where one person impersonates another so as to be able to vote. The problem is that evidence that fraud is a problem requiring a solution is often limited or non-existent. In that scenario, the cure is worse than the illness. Strict voter identification rules are likely to deter more legitimate voters from casting ballots than to prevent fraudsters. Voter suppressors appeal to that abstract goal as a fig leaf behind which to hide their actual motives, namely to make it harder for their political opponents to vote.
Some voter suppression efforts are legitimate in the eyes of their proponents because they weed out the worthy from the unworthy. Voters who refuse to make the effort or to pay the fees to obtain a driver’s licence or other photographic identification on this view are failing to meet their minimum obligations as citizens in a democracy. This worthiness rationale ignores the structural barriers that many voters face that render prohibitive the costs of obtaining a photo identification, or properly filling out the paperwork to register, or the trip across the county to drop off a mail-in ballot. It also harkens back to earlier logics before the expansion of democracy after World War II that viewed voting as a privilege to be handed out to the deserving and meritorious, rather than a right. Courts have generally struggled to identify why structural barriers such as poverty, lack of transportation, lack of proficiency in the official language(s), et cetera mean that the right to vote is not fully exercised.
Second, courts have often been at sea when it comes to deciding what normative standards to apply. A ban on voting by a minority group provides a clear line of analysis. The majority cannot disenfranchise a minority simply because it is popular to do so or would help their electoral chances. Democracy requires a franchise as close to universal as possible in order to be legitimate.
Voter suppression proves harder to address because it raises difficult normative questions. “How many ballot drop boxes per county does the Constitution require?” is not a question that has preoccupied political or constitutional theory in the way that the right of all adult citizens to vote has done. Courts are forced to weigh the impact of an increased cost or burden on a segment of the electorate. They are capable of doing so. Older cases in the United States banning poll taxes, for example, are one highlight in the global jurisprudence on how to stop voter suppression. Stopping voter suppression requires courts to establish a baseline for how much access is required, however, which they have had difficulty articulating. Identifying the harm in voter suppression involves weighing the impact of the technicalities of election administration. Holding in favour of access would also often involve courts imposing positive obligations on governments or the electoral management body, which they are sometimes reluctant to do.
Conclusion
The current moment is defined by reasonable fears of the decline of democracy globally. Would-be authoritarians of the post-World War II past resorted to banning opposition parties, prohibiting minorities from casting a ballot, or violence at polling stations. These tactics still occur globally of course. Those methods are crude, but at least they are hard to hide. The new would-be authoritarians or wobbly democrats are more sophisticated in their methods. They undermine the integrity of elections while seeking to foster the impression that the democracy remains vibrant. The tactic of voter suppression allows them to avoid some of the costs that would be entailed by domestic or international recognition of their attempts to decrease the competitiveness of elections.
Michael Pal is an Associate Professor in the Faculty of Common Law at the University of Ottawa. He studies the law of democracy, comparative constitutional law, and democratic theory. He has an LL.M in Legal Theory from NYU and a J.D. and doctorate from the University of Toronto. He is working on a book on the constitutional politics of election commissions and the fourth branch of government. He was the external legal advisor for Ontario’s recent campaign finance reforms and served as a Commissioner with the Far North Electoral Boundaries Commission in 2017. He is on the Advisory Board for the Indian Law Review.