January is shaping up to be a big month for Republican vote suppressors — and a bad month for anyone who believes American democracy benefits when more people vote.
On Tuesday, a U.S. District Court in New Jersey reversed a 36-year-old court order barring the Republican National Committee from using a voter-ambush technique known as “caging,” which its insiders notoriously used to purge Democrats from voter rolls. GOP operatives would send postcards to voters in blue epicenters. Those returned as undeliverable would then be used by pro-GOP election officials to purge thousands of otherwise legal voters, ignoring a 1993 federal law laying out how to clean up voter rolls. When those citizens showed up to vote, they were told they could not vote; they had to re-register and wait until the next election.
Caging was not the most widely used anti-voter tactic in the GOP voter suppression toolkit. Partisan redistricting and stricter voter ID laws took wider aim at entire statewide populations. But caging has been used in red-run states to undermine voter turnout that could turn a state's political complexion purple or blue. One example was in North Carolina in 2016, when days before the presidential election U.S. District Court Judge Loretta Biggs said a caging scheme run by a longtime North Carolina GOP ally was “insane” and ordered thousands of voters reinstated.
Trump appoints caging operative federal judge
This week, one of North Carolina GOP’s top operatives, Thomas Farr, who was part of a notorious 1990 caging scheme targeting 100,000 black voters during Jesse Helms’ re-election effort, was re-nominated by President Trump for federal district court judge in the state. In December, Farr apparently lied about the episode to the Senate Judiciary Committee, despite testimony by ex-Justice Department lawyers who tracked him at that time.
Needless to say, putting a hyper-partisan known voter suppressor on the federal bench in a red-run state that would be purple if the GOP’s voting barriers were removed appalls civil rights groups.
“A vote to confirm Thomas Farr to serve on the federal bench would be a vote to further entrench white supremacy in the United States,” said Todd A. Cox, NAACP legal defense policy director. “His career is characterized by his continual efforts to advance and codify racism in North Carolina. From approving racially discriminatory materials to intimidate black voters on behalf of the Jesse Helms for Senate Campaign, to fiercely fighting for laws that disenfranchise and weaken opportunities for people of color, Farr’s record is clear.”
But as of Tuesday, after the New Jersey-based court’s reversal, one of the nastier tactics in the GOP voter suppression toolkit has been legalized — at least until the Democratic National Committee goes back to court over caging, which if it happens, will take time.
“With the consent decree gone, the RNC will for the first time in 35 years be free to begin anew efforts to spur purges of voter rolls and take potentially suppressive ballot security measures in the name of preventing voter fraud,” wrote Richard Hasen, a scholar and curator of the nation’s leading election law blog, for Slate. “No doubt RNC lawyers would advise against taking these steps, at least for a while, to forestall the DNC from running back to court seeking to have the consent decree reinstated.”
GOP voter purges at the Supreme Court
These pro-caging developments are worrisome enough, but they are not all that is unfolding this week surrounding Republican efforts to purge legal voters. On Wednesday, the Supreme Court will hear one of the year’s biggest voting rights cases over whether a highly partisan GOP voter purge in Ohio — targeting the same blue voters as caging schemes — was legal under the federal law that governs how voter rolls are to be purged (after people die, move or lose their rights, such as from a felony conviction).
As in caging schemes, the Ohio GOP — led by Secretary of State Jon Husted — was preemptively targeting blue voters for removal.
The specifics concern Husted’s purge of at least 144,000 legal but infrequent voters between 2012 and 2016. At the heart of the case is an ambiguity in the wording of the National Voter Registration Act of 1993 that Husted shrewdly exploited. The NVRA said no voter could be purged in the four years after they register. But it also said efforts to contact infrequent voters — such as those who only vote in presidential years—can be used to identify voters to be removed after that initial four-year period. (That contact effort is where the use of postcards comes in, as caging operatives use mail posing as an official NVRA contact.)
What Husted did was purge legally registered voters ahead of the four-year timetable and blame it on an ambiguity in the NVRA’s language. Husted used the power of his office to create what he called a “supplemental process” to remove voters who had not voted in two years. Ohio’s Republican Attorney General’s office defended him, arguing the law was a mess. Why? Because it laid out the four-year timetable for purges but also said voters could not be removed “by reason of the person’s failure to vote.”
Husted and his fellow Republicans knew what they were doing — purging more voters than any other state and hiding behind this flimsy legal fig leaf, an internal ambiguity in the law’s drafting. But that’s what partisan Republicans do; they seek ambiguities in election law to subvert the voting process. As Ari Berman wrote in The Nation after the Court took the case, “From 2011 to 2016, Ohio purged 2 million voters from the rolls — 1.2 million for infrequent voting—more than any other state.”
Husted’s purges have unabashedly favored the GOP. In June 2016, a Reuters investigation reported twice as many voters were purged in “Democratic-leaning neighborhoods” compared to “'Republican-leaning" neighborhoods in the counties where Ohio’s three biggest cities are located — Cleveland, Cincinnati, and Columbus. Ohio purged “at least” 144,000 voters in these counties since 2012, it reported.
“The disparity is especially stark in Hamilton County, where affluent Republican suburbs ring Cincinnati, which has one of the highest child-poverty rates in the country,” Reuters found. “In the heavily African-American neighborhoods near downtown, more than 10 percent of registered voters have been removed due to inactivity since 2012. In suburban Indian Hill, only 4 percent have been purged due to inactivity.”
Will GOP voter purges make a comeback?
Election law fights are long-game where incremental gains that favor one party are not often seen until years after courts rule. However, as 2018 begins, Republican voter suppressors have political momentum on their side. A federal court just ended a nearly four-decade-old ban on caging, and one of the GOP’s notorious vote suppressors in North Carolina has been again nominated for a federal judgeship in that state.
Meanwhile, it remains to be seen if the Supreme Court will be gulled by the GOP’s argument that the letter of the law — what they say is a contradiction in the NVRA’s voter purge protocols — lets them execute partisan purges. Or will they uphold the spirit of a 1993 law that expanded voter registration to state motor vehicle agencies, welfare offices and military recruiters? The informal name for the NVRA is the "motor voter" law, not the "purge blue voters" law.