From the great Thomas Edsall in the NYT. His weekly columns are always worth reading, because he understands the grave challenges that American democracy faces and does a great job of explaining complex social science research to a lay audience. For those concerned with contemporary efforts to burden the votes of people of color, this one summarizes findings that some will find surprising:
In 2011, determined to push back the ascendant Democratic coalition that elected America’s first Black president, Republicans capitalized on their control of legislatures and governor’s mansions in 20 states to enact measures designed to suppress minority Democratic voters. …
How effective has the onslaught of state-level legislation been at raising the odds for Republican candidates?
The apparent answer: not very.
“Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes,” Justin Grimmer and Eitan Hersh, political scientists at Stanford and Tufts, write in their June paper, “How Election Rules Affect Who Wins.” …
How about partisan gerrymandering? Did the Shelby [County v. Holder] decision open the door to disenfranchising political opponents by allowing Republican legislatures to reduce the number of “minority opportunity” congressional and state legislative districts likely to elect Black or Hispanic Democrats — a process known as retrogression?
Again: apparently not.
Nicholas Stephanopolous of Harvard Law School, Eric McGhee of the Public Policy Institute of California and Christopher Warshaw of George Washington University compared every congressional, State Senate and State House district before and after the lines were redrawn to accommodate population shifts in the 2020 census in their paper “Non-Retrogression Without Law.”
“Our primary finding,” they write,
is that there was little retrogression in formerly covered states. …
It’s also worth reading the expert responses that Edsall solicited, including ones from Rick Hasen, Mark Elias, and Guy Charles. Among the points made is that even very small changes in turnout can affect close elections. We should also care about which demographic groups are affected by changes in voting laws. It’s especially problematic if the voting strength of historically marginalized groups is diminished, even by just a little. Moreover, changes in law can impede people from exercising their fundamental right to vote, something that harms our democracy even if there’s no effect on the outcome of an election.
All these points are true. At the same time, the findings that Edsall reports are consistent with my growing sense over the years that laws making it more difficult to vote usually aren’t as successful as their opponents fear and their proponents may hope. I’m now speaking about laws designed to make it more difficult to cast a ballot or have it counted, often referred to as vote denial (as opposed to unfair redistricting and other types of vote dilution).
If you’ve read this far, I hope you’ll indulge me in a bit of autobiography. Early in my career as a law professor, I focused mainly on laws burdening voting — most conspicuously at the time, laws requiring voters to present photo ID, as well as rules governing voter eligibility and limits on early voting. My article “The New Vote Denial” was about how Section 2 of the Voting Rights Act could be deployed to challenge such laws when they have a racially discriminatory effect.
Over the years, it became apparent to me that laws burdening the vote typically don’t have as great an effect as I’d originally anticipated they would. I also came to doubt how effective the VRA preclearance regime was in stopping burdens on voting. Shortly after Shelby County came down, I expressed skepticism about its impact on voter participation, given the limited utility of preclearance in stopping vote denial. Some of my friends weren’t wild about my saying that, but it seems to me the recent research tends to support this conclusion.
Please don’t get me wrong. I still think laws making it more difficult to vote are terrible, even if their effect is small and no elections are ultimately affected. That’s especially true when historically marginalized groups are targeted. And there is evidence that some laws — especially those governing voter registration — can have an impact on the size and composition of the electorate. But in general, the effect of these laws may not be as seismic as some of us once feared.
Edsall deserves the last word. From the conclusion of his latest column:
What this suggests is that the American electorate is determined to exercise the franchise and is resistant to legislated hindrances — more so than many would expect. This does not bode well for a Republican Party that for the moment has applied its money, energy and strategic skill to reducing Democratic turnout and suppressing Democratic votes.