In what seems like the bygone salad days of the United States, the Supreme Court struck down part of the Voting Rights Act in 2013. The provision that the Court struck down was Section 4(b). What was this section and why did the Court strike it down? What does that have to do with Trump’s voter fraud panel?
Section 4(b) of the Act is rather short, as far as subsections typically go. The main text of the subsection effectively states that Section 4(a) will go into effect in states that have been deemed to violate specific good faith as it relates to the voting rights of citizens. Section 4(a) is really the meat and bones of the Act, and this is what lays out what a state must do to change certain rules and functions of their election processes. One of the main arguments from the Court as to why this was unconstitutional is that it relies on “outdated data” and does not reflect the current situation in the states, specifically as it applies to voter suppression.
One of the lesser talked about points of the Court’s decision however, is that this provision of the Act exceeds Congress’ authority under the Fourteenth and Fifteenth Amendments, and therefore violates the Tenth Amendment and Article Four of the Constitution. So, what does that mean? The Fourteenth Amendment is often referred to as incorporating the rest of the Constitution into state constitutions and statutes. Prior to the ratification of this amendment, a state could, for example, censor political speech that it found offensive to the political actors and office holders. The First Amendment, after all, as written, only applies to the Congress and the federal government. The Fourteenth Amendment, then, incorporates this protection at the state level by making it so that no citizen of the United States (or those under its jurisdiction, which includes noncitizens living in the country) should have their rights as described the Constitution violated by the state governments. Essentially, it made it so that if the Constitution describes what a citizen’s rights are in relation to the federal government, those same protections applied to the state governments. Another function of this amendment is that grants equal protection to each citizen, and by extension each state, so that something that is illegal at the federal level (or legal) applies to all states and their respective citizens equally.
The Fifteenth Amendment gave nonwhite citizens the right to vote and specifically forbade the curtailing of those rights on the basis of race, color, or prior servitude (former slaves). These are important amendments to the Constitution, and most people accept them as fundamental to ensuring and protecting the freedoms and rights of the American people. But what is important to note is that neither of the amendments grant Congress the right to impose restrictions on voting rights and how states conduct elections. This is what gets us to the Tenth Amendment.
The Tenth Amendment, as many people are often fond of pointing out, states that powers that are not specifically delegated to the federal government, and also not specifically denied to the state governments, are then left up to the state governments. Taken in conjunction with Article Four, which states that each state is guaranteed a republican form of government. Note that this is “little r” republican, which means that each state shall have the right institute a representative form of democracy where the citizens elect their representatives to the legislature and the executive. While not necessarily talked about in the opinion or the question to the Court, this is seen as an extension of Article One, Section Four, which grants jurisdiction and oversight, excepting some guidelines and rules as prescribed by the federal government, of all elections to the states themselves.
What all this means is that the Court found that Section 4, sections a and b, of the Voting Rights Act imposed an undue burden on some states, but not others, in conducting their elections, which was a power not granted to the federal government beyond the general blanket rules that citizens not be denied the right to vote based on race or color. Put more simply, the Court found that the Act, in an attempt to enforce the Fifteenth Amendment, overstepped the authority of Article Four, by violating Article One, which is enforced by the Tenth Amendment, and in so doing, the Act ran afoul of the Fourteenth Amendment.
So, what does this have to do with Trump’s Voter Fraud Panel and their so-called investigation? Well, on the face of it, it would appear that the Court has ruled that the federal government has extremely limited jurisdiction over the states as it relates to their power to conduct their own elections. This is part of the justification and idea behind the Electoral College – all the states retain a certain degree of sovereignty in the conduction of their own affairs, and the president, as head of the federal government, is the head of the Union, not the separate states. One must remember, we are a union of states, not a large nation state.
There are some things that the federal government can do in regards to regulating the states elections, but these are typically more general. These are also generally accepted as belonging in the authority specifically prescribed to the federal government by the Constitution. States cannot discriminate based on race (and thanks to the Nineteenth Amendment, sex), every citizen must be afforded the right to vote, but otherwise the states can do what they want in terms holding elections and ensuring those rights are enforced and protected. This is why, for all the talk of voter fraud that comes from Republicans at all levels, investigations of such have been held at the state level. It is the state’s responsibility, and not the federal government’s, to ensure that laws are being upheld and if someone violates those laws that they are held responsible.
To this end, several states have conducted investigations into voter fraud allegations over the last several years, and nearly every one of them has found that fraud is so exceptionally rare, if it happens at all, that it is a nonissue. Fraud is also unique in a way that intent must also be proven. To be sure, there have been some “questionable” ballots that have been found throughout the several different investigations, but the majority of those have been written off as “honest mistakes,” or the result of confusion. Very few instances of someone casting two or more ballots, or someone impersonating another person to cast a ballot have ever been found, much less proven. Indeed, in the last election, the most immediately obvious and prosecuted instances of voter fraud came from Trump voters. Even still, these number in the single digits and would have had no discernible effect on the election.
Nonetheless, Trump seems unable to accept that he won the election on the technical rules of the process as it relates to the Union, the Electoral College. Trump has been speculated as being a narcissist, and I have seen no evidence to the contrary. For Trump, then, it must come as an injury that causes internal bleeding – that he isn’t loved by the multitudes. Trump lost the popular vote, which of course doesn’t count in picking a president for the Union, to Clinton by nearly 3,000,000 votes, which doesn’t even count the number of votes that went to other candidates such as Jill Stein, Gary Johnson, Evan McMullin, a plethora of write-ins such as Harambe the Gorilla, or the fact that nearly half the registered electorate stayed home as they didn’t like either candidate. Not coincidentally, that 3,000,000 is is the same number that Trump claims were fraudulent votes. Trump has floated the idea that illegal immigrants were bused across the border to cast ballots for Hillary Clinton (in states that typically vote Democrat, which suggests that he is not only lying about the fraud, but doesn’t understand the Electoral College. It makes no sense to bus in millions of people to vote in a state that, despite the inflated count, would have no effect on the election).
And so this is what cuts to the heart of Trump’s Voter Fraud Panel. Trump believes, actually believes, that he lost the popular vote due to rampant voter fraud. Or, maybe he doesn’t. He might be fully aware that he is not as popular as he wishes he was. And this could be why he picked Kris Kobach to lead the panel (technically, Pence leads the Panel, but it is unclear what, if anything, he does). Kobach has made a name for himself as one the toughest fighters against the Constitutional right to vote. Under the auspices of fighting voter fraud, he has spearheaded laws in his home state of Kansas and lawsuits throughout the country to try to impede access to the polls from voters that are, demographically and statistically speaking, more likely to vote for a candidate who is not a Republican. Kobach, in one capacity or another, has been sued by the ACLU no less than four times since he was elected to State Secretary of State of Kansas in 2010.
Just days ago, Kobach’s team requested that all fifty states hand over to the panel the following voter information: Name, date of birth, last four digits of SSN, party affiliation, and votes for the last ten years. Many states, nearly twenty-four of them at the time of this writing, have refused this request. The reasons for the request and the reasons for the refusal should be clear, but in case they aren’t, let me put this forward: This is not about election integrity, but about voter suppression. Ostensibly, this info will be gathered into a database and crosschecked across the several states to find … something. But, if it were about integrity, a name and the SSN would be sufficient. The request for party affiliation and voting behavior going back to the Bush administration suggests on its face that this about finding Democrats, or at least those who don’t vote Republican, and finding a way to remove those voters from the rolls.
However, even the names part can get tricky. Case in point: My name is Stanton Sturgill. This is my legal name. I have used it on all legal documents since I was able to sign for myself. My father’s name is Stanton Sturgill. His father’s name was Stanton Sturgill. And his father’s name was Stanton Sturgill. All of them, except for myself, are deceased. A few years ago, I requested a copy of my birth certificate so that I could acquire a passport. I went to the Hall of Records myself, in person, and presented my ID and Social Security card. I asked for a copy of my birth certificate. After much confusion on their part, I finally told the last person that I spoke to that I was requesting my birth certificate, and I was the one that was not listed as “Deceased.” You would think that the date of birth, going back to the 1800s, would have been sufficient clues to figure out that I was not in fact my great-grandfather. But, you would be wrong. How, then, are they to reconcile this in a situation where all they have is a list of names with no person to attach them to? How do they account for the fact that beginning sometime in the 1980s, this string of Stanton Sturgills began voting Democrat? How do they answer the question of why two Stanton Sturgills voted in the 2004 primary, but only one in the general election? And that those two Stanton Sturgills voted for different parties? How do they deal with the fact that different Stanton Sturgills, registered in the same county, at the same address, in the same state, voted for two different candidates, and then one didn’t vote? Well, they shouldn’t even be allowed to ask that question, but they are trying to. I’m also going to guess that they won’t arrive at the conclusion that a family name can be passed on, despite the fact that the current head of the DoJ is Jefferson Sessions, The Third. Why, because he votes Republican.
Additionally, many states have cited the security concerns. Nevermind the blatant unconstitutional requests of private information that overreaches the federal authority, from the federal government into state affairs and the privacy rights of those citizens; they are citing security concerns. And they are right to do so. Having all that information, some of it the most sensitive information collected into one database, would allow for a hacker to access it and do all kinds of untold damage to our government, our economy, our identities, and so forth. That these states are concerned with security, even if they aren’t with privacy and Constitutional overreach, is at least a step in the right direction. Let’s be honest, the federal government, particularly under Republican leadership, but especially under this administration isn’t exactly known for their security.
This is an administration, after all, that is being lead by a man who, when asked about cyber security, went on a rant about how he doesn’t understand email, thinks the internet can be “turned off” at night by calling Bill Gates, has a 10-year-old who can use Microsoft Office, referred to it as “the cyber,” and went on and on about his “good genes” because his great-uncle was doctor. This a group of people, it was recently reported, allowed for millions of American’s personal information to be hacked because they don’t know what they are doing. This a man who used his unsecured android phone as a flashlight in a crowded restaurant so that he could read a classified document – with the phone’s camera pointed directly at the document. Even if you ignore that this is a blatant attempt to gather information about Americans who are not likely to vote for Trump come 2020, or any other Republican for that matter, it is a cyber-security nightmare.
But, I digress.
The most important points to remember in all this, is that this is an intrusion on the rights of states to conduct their own elections. This is a blatant unconstitutional overreach of authority. The basis for the federal government’s oversight in elections is established by the Constitution, and while I don’t particularly care for the outcome of the Court’s decision way back in 2013, a million years ago in Trump years, the Constitution lays this out, and the Court agreed. There is no basis for Trump’s claims that millions of Americans who voted against him are somehow fraudulent. Trump’s panel is itself a fraud. The narrative of voter fraud has been disproven time and again, often by Republicans. Trump’s attempt to gather information about those who did not, and would not vote for him is a grab at voter suppression. It is also a security nightmare. But, that get’s to the point of all that Trump does. He isn’t really trying to make America great, or safe, or whatever. He is trying to solidify his own power, and to ensure that his children are untouchable in the future. He is merely trying to ensure that he, and his friends, have unfettered access to the legislature and the courts so that he can not only undo what Obama may have done, but so that no one can ever undo what he is trying to accomplish.