The story read like something straight out of Stalinist Russia. But this casualty list was in the United States in the twenty-first century. Virginia: 41,637 purged.1 Florida: 182,000 purged.2 Indiana: 481,235 purged.3 Georgia: 591,549 purged.4 Ohio: two million purged.5 With the flick of a bureaucratic wrist, millions of Americans—veterans, congressional representatives, judges, county officials, and most decidedly minorities—were erased.6 To be clear, they still had their lives, but in the course of simply trying to cast a ballot, they soon learned that as far as the government was concerned, they did not exist. They were electorally dead. Their very right to vote had disappeared into the black hole of voter roll purges, Interstate Crosscheck, and felony disfranchisement. Some of the walking dead were viscerally “angry.”7 Others fumed, “This is screwed up!”8 Most felt “like an outcast,” “empty and unimportant,” and one man was actually reduced to “crying right there in the county elections office.”9 These were the latest casualties in the war on democracy.
They had been eliminated by a GOP deftly wielding a law that had actually been designed to broaden access to the polls. The modern-day version of voter purging began in the aftermath of a dismal election. The 1988 presidential contest between Democrat Michael Dukakis and Republican George H. W. Bush not only brought out the racial dog whistle skills of GOP strategist Lee Atwater, who crafted the infamous Willie Horton ad, but it also resulted in one of the lowest voter-turnout rates since 1924. Barely 50 percent of age-eligible adults cast a ballot. Columbia University professor Richard Cloward identified the culprit. “When there’s no organizing structures to help people get registered, the voter registration barriers just sort of gradually erode the electorate.”10 In some counties in Mississippi, for example, the only place to register to vote was in the clerk’s office during traditional business hours. In other locales, such as Indianapolis, voter registration drives were hampered by a “rule” that doled out a maximum of twenty-five forms to each volunteer. Limited access to registration had a visible and disparate impact on the electorate. According to a report by Demos, a progressive think tank, while top income brackets achieved more than 80 percent voter registration rates, “from 1972 to 1992, voter registration among the lowest income quintile saw a nearly 18 percentage point drop—from 61.2 percent in 1972 to 43.5 percent in 1992.”11
Congress, therefore, passed the National Voter Registration Act (NVRA), also known as the Motor Voter law, in 1993.12 The statute’s opening preamble is clear. The right to vote “is a fundamental right.” And, it is “the duty of the Federal, State, and local government to promote the exercise of that right.” This obligation requires paying particular attention to “discriminatory and unfair registration laws and procedures” that “disproportionately harm voter participation by various groups, including racial minorities.”13 As a result, the NVRA expanded the venues for and standardized the process of registration. Now citizens could register at the Department of Motor Vehicles and public assistance and disability offices, as well as through the mail with a brand-new standardized federal form.14
As important as this was—indeed, the number of registered voters increased by more than 3.3 million in just a few years—the lag time between the initial “concern” in 1988 and the passage of the law in 1993 was significant.15 During the negotiations, Republicans at first stalled, and then demanded a quid pro quo for increasing access to the ballot box. They insisted that the law had to require routine maintenance, scrubbing even, of the voter rolls. This would ensure that people who had moved out of the district or state and those who had died were no longer listed as eligible voters. It all sounded so reasonable and so mundane. Except it wasn’t. That innocuous language—just like Kit Bond’s demand to insert a requirement for voter IDs into the Help America Vote Act—became yet another weapon in the Republicans’ arsenal to disfranchise as many citizens as possible.
What the law requires and how it has been implemented are two different things. The NVRA mandates that election officials update the voter rolls regularly. There are, however, strict guidelines about who is removed, how that is accomplished, and why.16 And on each of these parameters, the GOP has violated not only the spirit of the law but the letter as well. The NVRA outlines that officials can remove someone from the roll of eligible voters if he or she requests it; has had a name change and didn’t notify authorities within ninety days; dies; is convicted of a felony that under state law renders them ineligible to vote; “has moved outside the county of registration or has registered to vote in another jurisdiction”; and after that does not respond to a follow-up inquiry, usually a mailing, from election officials concerning a change in status. Then, and only then, is the process of purging supposed to begin.17
In other words, the trip wire is a two-step process triggered first by a change in status of the voter (name change, felony conviction, move) and then by an inquiry from a state election official about his or her continued eligibility to vote in that jurisdiction. Unfortunately, far too many secretaries of state have bypassed this carefully laid-out two-step process, ignored a change in status, and, instead, used one specific criterion (non-voting) that is expressly forbidden in the NVRA to wipe out otherwise eligible voters. The point of this illegal tactic is to cull the electorate of millions of citizens, most of whom are young, poor, and/or minorities, who statistically do not vote for Republicans and whose voting activities are often sporadic. Despite the targeting of key demographic groups, this wide-scale purging remains virtually undercover. It is effective, “powerful,” and “dangerous precisely because it is easy to justify to the public in the name of ‘keeping our voter rolls up to date.’ ”18
Ohio has been in the forefront with this lethal maneuver. In fact, no state has been more aggressive or more consistent in attacking the heart of the NVRA. From 2011 to 2016, Secretary of State Jon Husted has wiped two million people from the state’s list of registered voters. Most important, 1.2 million of those have been eliminated solely because they voted infrequently.19 Yet the NVRA is crystal clear: people cannot be struck from the registration rolls simply because they did not vote in a few federal elections.20
Nonetheless, that is exactly what happened to software engineer and Navy veteran Larry Harmon. In 2008, he eagerly voted in a historic presidential election. Four years later, however, Harmon sat out because he was somewhat disenchanted with President Barack Obama and partially swayed by Republican challenger Mitt Romney’s platform. Unable to choose, he deliberately chose not to vote. When the 2014 midterm elections came around, Harmon was not impressed with any of the candidates for Congress and, therefore, just stayed home. But in 2015, with a local initiative concerning legalized marijuana on the ballot, he wanted his voice to be heard and went to the polling place. There he received a rude awakening. To the State of Ohio, this veteran, this taxpayer, this citizen did not exist. At least not at the ballot box. When he stepped up to the table to show his ID, poll workers told him that he “could not vote.” He wasn’t registered. At first, Harmon “felt embarrassed and stupid,” then it began to sink in and he became “madder” and madder. How could he simply be erased like that? “I’m a veteran, my father’s a veteran, my grandfather’s a veteran,” he said, stewing; we fought “for the country … now they aren’t giving me my right to vote, the most fundamental right I have? I just can’t believe it.” As he dug deeper, as he learned that the sheer constitutionally protected act of not voting had just cost him his right to vote, he became more infuriated. It turns out that in 1994, Ohio had “updated its elections law to add what is known as a ‘supplemental process’ ” to the NVRA. That means that “voters may be purged from the rolls after six years just because they didn’t vote—even if they are otherwise eligible.” Ohio, in other words, had flipped federal law on its head. “I’ve been paying my taxes, paying my property taxes, registering my car,” he said. “All the data was there for (election officials) to know” that he still lived in the same house, on the same block, in the same jurisdiction. He had not moved. Nor had he changed his name. He was Larry Harmon in 2008. He remained Larry Harmon in 2015. And he clearly had not died. In short, not one of the federal law’s requirements for the secretary of state to remove him from the rolls had occurred. He simply had not voted in two federal elections.21 But, in Ohio, despite the NVRA, apparently that was all it took.
Jon Husted argued that his office met its statutory obligations and mailed postcards to Harmon and millions like him alerting them that if they did not respond within thirty days, the process of removal would begin. “If this is really [an] important thing to you in your life, voting,” the secretary of state chided, “you probably would have done so within a six-year period.”22 That argument, however, misses the basic point: failure to vote is not a legal, viable reason to purge someone from the voter rolls.
Besides its sheer illegality, Ohio’s method had another fatal flaw: mailing postcards crammed with fine print is fraught with discriminatory impact. The Census Bureau, for example, uncovered that when it sends out mail, “white voters are 21 percent more likely than blacks or Hispanics to respond to their official requests; homeowners are 32 percent more likely to respond than renters; and the young are 74 percent less likely than the old to respond.”23 Thus, the differential response rates for Husted’s mailings translate into disproportionate purges in key neighborhoods of Cleveland, Columbus, and Cincinnati—areas that are overwhelmingly minority and composed of renters and young adults. In Cleveland, for example, whites make up only 34.5 percent of the residents while 50.1 percent of the city’s residents are black and 10.5 percent are Hispanic.24 Moreover, nearly 60 percent of homes in the city are rented, not owned.25 It is also a town where 69 percent of the voters went for Obama in 2012. By 2016, however, the percentage of Democratic voters had dropped to 66 percent, while the Republican share stayed virtually the same.26 That little bit of magic might be explained by the fact that “voters in neighborhoods that backed Obama by more than 60 percent in 2012” had more than twice as many registered voters purged “for inactivity” than “neighborhoods where Obama got less than 40 percent of the vote.”27 Indeed, more than one-fourth of the two hundred thousand Ohioans Husted purged from the voter rolls in 2015 were in Cuyahoga County alone, where Cleveland is located.28
Moreover, despite Husted’s insistence on personal responsibility, the question of showing up regularly to vote is not solely an individual choice. For years, Ohio has taken an active role in culling the electorate and dissuading citizens from voting (or even having those votes count). Secretary of State Husted and his Republican predecessor Kenneth Blackwell have, for example, limited the number of polling stations for early voting in urban areas, thus creating untenable four-to-five-hour wait times in cities. These election officials have also tossed tens of thousands of absentee ballots, supposedly because they were cast on incorrect paper stock or had a spelling error.29 And, in a deposition, Husted’s top aide admitted that these so-called enforcement activities were actually targeted at the cities, while “white rural areas went nearly untouched.”30 In essence, the state has set up the equivalence of the old literacy tests, in which those Jim Crow states ensured that many of their citizens could not get a decent education and then turned around and required literacy to vote. Similarly, Ohio has set up a system whereby it blocks American citizens from voting and then purges them from the rolls … for not voting.
Ohio is not alone. Georgia and its secretary of state, Brian Kemp, have also mastered the art of the purge. Georgia has been so good at it, in fact, that even as its population climbed, its number of registered voters since 2012 has actually dropped.31 Kemp, it turns out, is a voter-suppression warrior who wears his triumphs in fighting nonexistent voter-impersonation fraud as a fundraising badge of honor while, all along, his “actions have undermined voting systems, election security and democracy in general.”32 He has displayed a tendency to consistently err on the side of disfranchisement: such as “when his office lost voter registrations for 40,000 Georgians, the vast majority of whom happened to be people of color”; and when his office leaked the social security numbers and driver’s license data of voters not once but twice; and when he refused to upgrade the voting machines throughout the state that had received an F rating because they were easily hackable and “haven’t been updated since 2005 and run on Windows 2000.”33 Kemp had also “crusaded against” and “investigated” voter registration drives by Asian Americans and predominately black groups. He actually launched a criminal inquiry into the registration of 85,000 new voters, “many of them minorities,” but “found problems with only 25 of the registrants, and” not surprisingly, after all the time, money, and publicity, “no charges were filed.” Yet the intimidation was real—too real and too familiar.34 While Jim Crow Georgia had implemented a potent disfranchisement cocktail of literacy tests, poll taxes, and terrorism to keep the voting booth as white as possible, now, in the twenty-first century, James Crow Georgia has concocted its own witch’s brew of feigned innocence, the elimination of a million citizens for the sheer act of not voting, and a highly unreliable and therefore effective program called Exact Match.
Georgia’s perfidy has not gone unnoticed and has resulted in an onslaught of lawsuits from the NAACP, the ACLU, and the League of Women Voters. Kemp’s response, however, has been Orwellian. Confronted with 732,800 voters who, between October 2012 and November 2014, had their “registration status canceled ‘due to failure to vote’ ” and then the 591,548 who were wiped off the rolls just two years later, Candice Broce, a spokeswoman for Kemp’s office, took umbrage at the charge and explained that the “secretary of state’s office does not ‘purge’ any voters.” That’s just not a word that his office was willing to use. Instead, his staff explained, in language that the public would find reassuring, the elimination of more than one million citizens from the rolls was nothing more than “voter list maintenance … to safeguard … the integrity of the ballot box … and prevent fraud and ensure that all votes are cast by eligible Georgia voters.”35 Kemp’s specter of waves of people impersonating the dead to cast ballots in Georgia has been disproved repeatedly. Political scientists M. V. Hood III from the University of Georgia and William Gillespie from Kennesaw State University concluded that “after examining approximately 2.1 million votes cast during the 2006 general election in Georgia, we find no evidence that election fraud was committed under the auspices of deceased registrants.”36 A decade later, as the Washington Post reported, despite all the baying at the moon, there were no cases prosecuted in Georgia for voter impersonation fraud.37 Kemp, however, did not hesitate to raise the bogeyman of voter fraud to mask the state’s voter suppression efforts.
The subterfuge continued as the secretary of state explained the rationale for wiping more than one million citizens from the rolls. Kemp argued that he was merely following state law and that the catalyst for removal was simply that the voter had had no contact with election officials over a span of seven years, not, as his critics charged, because of non-voting. The hocus-pocus in that statement is obvious. If a citizen doesn’t move and doesn’t change his or her name, there is absolutely no reason to contact the secretary of state’s office. None. It is not about changes of addresses or even name changes; it’s realizing that minorities, the poor, and the young are less likely to vote than affluent whites are.38 Just as the Mississippi Plan in the 1890s used the poll tax to identify the characteristics of those the state did not want to vote, Georgia’s twist of the law does something similar.
Even when they do vote, the poor, minorities, and the young are also more likely to move, to be more transient than the typical Republican voter. “I’ve had enough of that,” declared one woman who received Kemp’s pre-purge notice. No one is arguing that voter rolls shouldn’t be updated, she declared, but she moved to a home in the same county, in the same voting jurisdiction. Kemp’s notice, therefore, felt like harassment. It felt like the first step to kicking her off the rolls.39 Yet the NVRA is as clear on this point as it is about non-voting. If a “registrant who has moved from an address in the area covered by a polling place to an address in the same area,” he or she “shall be permitted to vote at that polling place upon oral or written affirmation by the registrant of the change of address before an election official at that polling place.” That is to say, under these circumstances, there should never be a purge notice or its attendant threat. Instead, the citizen simply informs the election official of the new address when he or she goes to vote.40 That’s the law. Except in Georgia.
Francys Johnson, the former president of the Georgia NAACP, who was known for bringing “street heat and legal teeth” into the voting rights battles in the state, branded Kemp’s maneuvers as designed for no other purpose than “to close opportunities for Georgians to be able to exercise the right to vote.”41 The monstrous little program named Exact Match did just that.
In March 2007, using the specter of voter fraud and the cover of the NVRA’s requirement for voter roll maintenance, Georgia insisted that the names in its voter registration database match those in the Department of Motor Vehicles in every way. Jon Greenbaum, an attorney with the Lawyers’ Committee for Civil Rights, knew instinctively that the state was “going out of its way to look to purge voters.”42 Though it didn’t necessarily appear so initially, at least two problems with the Exact Match plan indicated that this was the goal. First, at the time, Georgia was under the preclearance provision of the VRA and hadn’t bothered to ask the Department of Justice for approval. Yet because the counsel to the head of the Civil Rights Division, Hans von Spakovsky, was a George W. Bush appointee who, over the strenuous objections of the career attorneys at the DOJ, had already approved Georgia’s voter ID law, the state rightfully assumed that it had little to fear. Second, the databases of the DMV and secretary of state’s offices were fraught with errors—a missing “e” in the name Carole, a hyphen where one was not supposed to be, an errant “y” instead of an “i” in Nicki, or any of the other numerous typographical errors that can happen when two large bureaucracies are processing millions of applications. All this had a horrific effect on voter registration, especially for minorities. African Americans, who were one-third of the applicants, accounted for 64 percent of the tens of thousands of voter registrations that Georgia’s secretary of state canceled or “placed in ‘pending status’ for data mismatches between 2013 and 2016. Meanwhile, “Asian-Americans and Latinos were more than six times as likely as white voters to have their applications halted.”43
The devastation of Georgia’s Exact Match was amplified in nearly thirty states by the Interstate Crosscheck program. It gave the illusion of being clean, clinical, efficient, and fair. Its implementation and use were anything but. Crosscheck began in 2005 as a small, regional three-state endeavor, similar to Georgia’s. In many ways, the premise was the same: the alignment of databases would be able to flag fraudulent voters and purge them from the rolls. For a few years, the program limped along, virtually unnoticed. Then, a new secretary of state took over in Kansas, and he hitched his star and his agenda, which had been nurtured in the worlds of virulent anti-immigrant, anti–civil rights conservative circles for decades, to making Crosscheck more robust, more pronounced, and, frankly, more electorally lethal.
That man was Kris Kobach. He was a Harvard graduate and Yale law alum, son of a Midwestern Buick dealership owner, who began his career in George W. Bush’s Department of Justice and exuded the certainty, absorbed from his mentor Samuel Huntington, that America was under attack from brown immigrants and black voters. There was, as a result, a zealotry to all of Kobach’s work. He “has been a key architect behind many of the nation’s anti-voter and anti-immigration policies.” At the DOJ in 2001, he developed a database screening program to identify Muslims as terrorist threats. Though thousands were deported, no terrorists were ever found. But Kobach saw the program as a “great success.” After he left the DOJ, he eventually moved on to Arizona to help bolster the infamous “Driving While Brown” anti-immigrant law that made Maricopa County’s Sheriff Joe Arpaio so notorious. Riding on the wave of his reputation in staunch conservative circles, he ran for office in Kansas and in 2010 successfully won his campaign to be secretary of state. As Ari Berman reported, Kobach told the Kansas City Star that the “position of secretary of state was not an especially glamorous one, but it offered an enormous amount of power by virtue of its authority to enforce state voting laws, particularly as American elections were being decided by increasingly narrow margins.”44
Once he was at the helm, Kobach’s first electoral battle cry was a menacing thrust at the “massive” and “pervasive” voter fraud that had purportedly engulfed Kansas. As “Exhibit A,” he pointed to a case where a man named Albert Brewer, who had been dead for years, showed up and voted in the last primary election. Kobach held up this instance as one of thousands lurking in the voter rolls, skewing elections, canceling out the legitimate votes from hardworking, honest Americans. It was vintage Kobach, and vintage GOP. It was also not true. Yes, there was an Albert Brewer who had died. And there was one who voted. But they were not one and the same. The Albert Brewer who voted, Albert Brewer Jr., was the son of the man who had died. Kobach hadn’t even bothered to check before he started slinging accusations.45
That kind of deliberate sloppiness would, however, be his trademark; it’s the way he garners the support necessary to wipe thousands off the rolls in Kansas and millions throughout the United States. In the 2016 election, Kobach’s office, for instance, rejected more ballots than even Florida did, despite Florida’s population being seven times larger. That sledgehammer approach makes clear that Kobach’s goal is not to get it right. The goal is to tilt the electorate to the right. Jason Kander, Missouri’s former secretary of state, said that “Kobach uses every trick that he can to make it as hard as possible for eligible voters to cast a ballot—whether it’s unconstitutional legislation, targeting immigrants or forcing more eligible voters to use provisional ballots.”46
Kobach, thus, helped draft a Kansas law based on the lies of voter fraud and immigrant takeover of the ballot box. Under the absolutely misnamed Secure and Fair Elections (SAFE) Act, the state required voters to “1) present photo IDs prior to casting a ballot, 2) present a full driver’s license number and have their signatures verified in order to absentee vote and 3) provide proof of citizenship to register to vote.”47 The last element, which could be satisfied with a birth certificate or a U.S. passport, was supposed to address Kobach’s claim (based on a roundly refuted and widely discredited study) that eighteen thousand noncitizens “may have registered to vote in Kansas.”48 Although, as one politician noted, immigrants don’t “com[e] here to vote … They come here to work,” Kobach insisted that they were stealing elections or, equally frightening, were more than capable of doing so.49 “We had margins of less than 10 for water commissioner, school board and mayors,” Kobach claimed. And, with eighteen thousand noncitizens supposedly poised to usurp the rights of Americans, immigrants could take over key positions in government. It was a Samuel Huntington Clash of Civilizations nightmare.50 So Kobach sounded the alarm. Through his Captain Queeg–like hunt for culprits, he turned Kansas upside down, wrangling prosecutorial power from the legislature, but found only a Peruvian immigrant who was actually in the process of naturalizing and erroneously thought he could cast a ballot. One lone immigrant cannot and simply does not convey “massive” and “pervasive.” So, the secretary of state billed it as “the tip of the iceberg.”51
Kobach, therefore, suspended the right to vote of 35,314 Kansans because they could not produce “proof of U.S. citizenship.” More than 12,000 of those he simply purged outright because the disparate access to citizenship documents played right into Kobach’s belief about who is American and who is not, and thus who has the right to vote. He “associated minority voters with ‘ethnic cleansing’ … [in] a conspiracy to ‘replace American voters with illegal aliens.’ ” The U.S. Commission on Civil Rights rightfully concluded that the SAFE Act “may disparately impact voters on the basis of age, sex, disability, race, income level and affiliation.” And, the commission continued, what it costs, especially for the poor, to obtain a passport or a birth certificate is a “barrier” that amounts to “an unconstitutional poll tax.” A contemptuous Kobach sneered that the commission’s report “is not worth the paper that it was written on.”52 Yet a study by the Brennan Center for Justice found that “7 percent of Americans, mostly minorities, do not have these [citizenship] documents readily available.” Moreover, as scholar Chelsie Bright explained, “it is unclear that proof of citizenship requirements actually add any real value to the integrity of the election process. Federal law already requires that individuals registering to vote affirm in writing that they are a U.S. citizen. Lying carries serious criminal penalties. Further, research consistently finds that voting by noncitizens is extremely rare.”53
The ACLU sued. Kobach’s purge was not driven by any exigent need or crisis. There was no threat to the integrity of the ballot box. What there was, however, was Kobach’s need to remove the poor and minorities from the voting rolls. In October 2016, the Tenth Circuit of the U.S. Court of Appeals agreed. Kobach’s “theory of Kansas’ widespread problem of noncitizens voting” was “pure speculation” with “precious little … evidence.”54 Yet Kobach was undeterred; he went on to set up a two-tiered federal/state registration form and continued to harangue registrants for proof of U.S. citizenship to vote in the state’s elections. One of those registrants was ninety-one-year-old World War II veteran Marvin Brown, who had been around long enough to remember the poll tax. When Kobach deigned to question whether “Brown was truly a citizen,” the veteran found an ally in the ACLU and went back to court. There, U.S. District judge Julie Robinson chided that Kobach once again had “scant evidence of noncitizen voter fraud.”55 Unfazed by what would be yet another one of his losses to the American Civil Liberties Union, Kobach continued to work toward disfranchising as many “threats” to American democracy as he could find. In fact, he had already “block[ed] 18,000 motor voter applicants from registering to vote in Kansas.”56
His most devastating weapon to date, however, has been Interstate Crosscheck, which he has nurtured and promoted as an important device to eliminate voter fraud from the American political landscape. The program is supposed to root out those who are registered to vote in two different states as part of “a national move to bring more integrity to the voter rolls” and provide a solution to “registration systems [that] cannot keep up with a society of voters who move from state to state.” It works through an alliance of twenty-seven states, which sends voter information to Arkansas to upload. Kobach’s Kansas then pulls and runs the data for every member of the consortium, searching for comparisons “of registered voters to weed out duplicates.”57 Interstate Crosscheck, which by 2012 had more than forty-five million voter records, matches first, middle, and last names, date of birth, last four digits of the social security number, and suffix, if applicable, to identify those who may be going from state to state to vote, tainting election after election.58
At least that’s the narrative Kobach told when he stumbled upon Lincoln L. Wilson, a sixty-six-year-old Republican who owned homes in both Kansas and Colorado. Wilson felt he was well within his rights to vote in local elections in both states. “I’d vote for president in one state, and local issues in both places,” Wilson explained, especially when he saw his property tax bill skyrocket and resolved that there would be no taxation without representation. What looked logical to Wilson, however, and, frankly, not that much of a big deal to the local prosecutor, was a red flag to Kobach, who pursued charges against the elderly man with a vengeance. Kobach simply needed to make an example of him. Eighteen months and nearly $50,000 in legal fees, a $6,000 fine, $158 in court costs, and a guilty plea to three misdemeanors later, Kobach had his victory. Wilson simmered, saying, “Kris Kobach came after me for an honest mistake … Damn right, I’m upset … I’m a convicted man now.”59
Wilson, however, was in many ways a fluke. Crosscheck is such a fundamentally flawed database that its “success” rate is actually an epic fail for democracy. Since the database’s launch, 7.2 million voters have been flagged as suspect. Based on the individual lists the states received back from Kobach, massive purges have wiped more than one million American citizens from the electoral map. In Virginia, for example, 342,556 names were immediately identified as suspect because they appeared to be registered in another state. Those who were already on an “inactive voters” list were summarily removed, “meaning a stunning 41,637 names were ‘canceled’ from voter rolls, most of them just before Election Day” in November 2014. Texas set out to purge 80,000 voters, even though the Crosscheck match was “weak.” Only a court order, prompted by a lawsuit from a man the system had marked as “dead,” stopped the process. In Ohio, Crosscheck “flagged close to half a million voters.” North Carolina’s secretary of state alerted the Republican-dominated legislature that at least 35,750 dual voters were stalking the rolls. In Georgia and Washington, Crosscheck seemed to identify a total of more than one million unscrupulous voters.60 In the 2016 election, it was even worse, especially given the slim popular vote margins that ultimately determined who won the Electoral College.61 Arizona purged almost 271,000 voters. Michigan removed nearly 450,000 voters, and North Carolina managed to eliminate close to 600,000 from the system.62 The staggering numbers fueled the narrative of massive, rampant voter fraud; of voter rolls so unkempt that the dead had ample opportunity to rise from the grave and tilt an election. That, of course, meant Kobach’s pet program had successfully spun its web of lies, at least, in the view from thirty thousand feet.
But up close, neither the lists nor the database could withstand scrutiny. The problem is twofold. First, despite the hype and the marketing, the program does not actually match on every parameter. Not all states require the same information that Crosscheck uses to purge the rolls. Social security numbers, for example, are rarely used. Ohio doesn’t bother with a person’s middle name either. Suffixes rarely make it in, as well. As a result, it believes that James Willie Brown is the same voter as James Arthur Brown, as James Clifford Brown, as James Lynn Brown. The possibility for error is exponential. In Georgia alone there are nearly four hundred James Browns. And in North Carolina, the supposedly more than thirty-five thousand illegal voters simply evaporated when the state hired an ex-FBI agent to ferret them out and bring them to justice. He found “exactly zero double voters from the Crosscheck list.” In fact, researchers at Stanford, Harvard, Yale, and the University of Pennsylvania discovered that Crosscheck has an error rate of more than 99 percent.63 The lack of consistency, rigor, and accuracy led a “shocked” Mark Swedlund, a database expert whose clients include several Fortune 500 companies, to dismiss Crosscheck’s “childish methodology.” It’s too error-prone. “God forbid,” he noted, if “your name is Garcia, of which there are 858,000 in the U.S. and your name is Joseph or Jose. You’re probably suspected of voting in 27 states.”64
Crosscheck’s overreliance on a handful of selective data points, therefore, feeds into the second major problem: it is a program “infected with racial and ethnic bias.”65 Minorities in America tend to have common or shared last names. If your last name is Washington, for example, there is an 89 percent chance that you’re African American; Hernandez, a 94 percent chance that you’re Hispanic; Kim, a 95 percent chance that you’re Asian.66 Similarly, Garcia, Lee, and Jackson all signal a strong probability of being a minority in the United States because “minorities are overrepresented in 85 of 100 of the most common last names.”67 As a result, when Crosscheck zeros in on name matches, whites are underrepresented by 8 percent on the purge lists, while African Americans are overrepresented by 45 percent; Asian Americans by 31 percent, and Hispanics by 24 percent.68 With Crosscheck perseverating on similar last names, it has blasted a hole through minority voting rights. Indeed, as The Root reported: “Roughly 14 percent of all black voters were purged from databases under the guise of preventing ‘double-voting’ and ‘fraud’.”69
The depth of disfranchisement, of wringing the right to vote out of American citizens, led award-winning columnist Charles P. Pierce to conclude that “Kobach is Jim Crow walking.”70 Investigative journalist Greg Palast, after surveying the racial casualties in Ohio, knew that it wasn’t just Kansas’s secretary of state but an entire GOP apparatus that decided the “only way” to win an election was “by stealing American citizens’ votes.” “It’s a brand-new Jim Crow. Today, on Election Day, they’re not going to use white sheets to keep away black voters. Today they’re using spreadsheets.”71
Kobach’s track record, therefore, set off alarm bells when he stepped out of a meeting with President-elect Donald Trump carrying some papers that were partially visible with talking points about how to restrict access to the polls under the new regime.72 Papers, by the way, that he consistently lied about and refused to produce until a court order and a thousand-dollar fine forced him to reveal that he proposed altering the NVRA to require proof of citizenship.73 The fears were heightened further by Trump’s fantastical claim that he would have won the popular vote if it hadn’t been for three million to five million illegal voters.74 Concern mounted as the president, who was determined to prove his lie was the truth, signed an executive order creating the Presidential Advisory Commission on Election Integrity and appointed as its chair Vice President Mike Pence, who as governor of Indiana had the state police raid and destabilize an organization registering African Americans to vote, and Kris Kobach as its vice chair.75 A New York Times editorial summed it up: the “Commission on Election Integrity … is a sham and a scam … born out of a marriage of convenience between conservative anti-voter-fraud crusaders, who refuse to accept actual data, and a president who refuses to accept that he lost the popular vote fair and square.”76 The lie of voter fraud now had the presidential stamp of approval. It also had additional federal funding, a presidential commission, and several key members who were part of a rogues’ gallery of voter suppressors.77
In addition to Kobach, Kenneth Blackwell, and Hans von Spakovsky, whose appointment was like “a big middle finger” from Trump to minorities, there was J. Christian Adams.78 Similar to Kobach, Adams was also in Bush’s Department of Justice. There he flipped the Voting Rights Act on its head and went after African Americans for supposedly violating whites’ right to vote.79 He also made it clear that he deplored the NVRA because, in his view, “voter registration takes forethought and initiative, something lacking in large segments of the Democrat base.”80 Under the cover of his organizations, the American Civil Rights Union (ACRU) and the Public Interest Legal Foundation (PILF), he bullied and targeted minority and poor districts, and threatened lawsuit after lawsuit unless they purged their voter rolls, forcing many to capitulate because they simply didn’t have the resources to fight him in court.81 He argued, in his own Huntington-like version of The Clash of Civilizations, that the “Obama Administration was attempting to ‘import populations with cultural and legal traditions foreign to American traditions,’ and that ‘noncitizen voting helps the left win elections’—statements,” as the NAACP’s Legal Defense Fund chair Sherrilyn Ifill notes, “with no factual basis whatsoever.”82
Fully packed with voter suppression crusaders, Trump, over the objections of von Spakovsky, then added a few Democrats for “window dressing.” But it soon became clear that their role was to be even less than that. They were invisible. The Democrats on the commission, such as Maine secretary of state Matt Dunlap, were shocked to learn that the Pence Commission actually had a staff. That little piece of information only came to light through news reports, however, because Ronald Williams II, who had previously worked for Adams at the DOJ and was now identified by the media as working for the commission, was arrested on child pornography charges.83 The Democrats were also blindsided by the commission’s request for data that was sent to all fifty secretaries of state. In addition to voters’ names, dates of birth, and the last four digits of their social security numbers, the Pence Commission wanted party affiliation and voting patterns for every voter on the rolls, as well as information on any felony convictions. This would have been Crosscheck on anabolic steroids, a Bane doing massive damage to the body politic by heightening and spreading the flaws in Kobach’s pet database across the nation.84 The juiced-up pounding on Asian Americans, African Americans, and those with Hispanic surnames would have demolished their voting rights and, as much as possible, made the electorate white again. This would have been virtually assured, given the ideological, anti-black, anti-minority, anti-immigrant bent of the power center on the Pence Commission. That nationwide data in their hands spelled disfranchisement from sea to shining sea.
The backlash to the request for voter information was therefore intense. There were major concerns about privacy, about the security of the database, about the intentions of the commission for amassing this data. The immediate response was a 2,150 percent increase in citizens in Denver canceling their voter registration, and there were similar cancelations in Arizona, Florida, and North Carolina.85 The other public response to Kobach and the commissioners was as pointed: “You are all about voter suppression to rig elections … you are evil, pray there is no hell.”86 Another concerned citizen was equally succinct: “This commission is a sham and Kris Kobach has been put on it expressly to disenfranchise minority voters.”87 A New Yorker got to the point, as well: “You have no right to my voting record or anyone else’s; and to use it to eventually suppress voting is unconscionable in American Democracy.” And, then, as if echoing a recent horror movie, he wrote, “We saw what you did in Kansas …”88
Even Republicans seemed to agree. Forty-four states, including Kobach’s Kansas, balked at the Pence Commission’s data request.89 Mississippi planted its feet squarely on the ground of states’ rights and told the commission “it could go jump in the Gulf.”90 Democrats were equally opposed. “This is a coordinated attempt to create a national voter registration file that would reside in the White House … We might as well let [Russian President Vladimir] Putin just get a zip drive of every registered voter’s information in the nation,” Kentucky’s Alison Grimes remarked, alluding to the ongoing federal investigation of whether the Kremlin sought to tip the scales in the 2016 race to Trump.91
The concerns about the Pence Commission’s integrity continued to mount during its first meeting in New Hampshire. Even the site was problematic. Jeffrey Toobin in the New Yorker observed that the “choice of this location is characteristic of the incompetence and malevolence that is at the heart of the vote-suppression agenda.”92 Trump had lied about thousands of Massachusetts residents coming over in buses and voting in New Hampshire, costing him and the Republican senate candidate the state in the last election. Kobach buttressed the lie and then spun a fairy tale in Breitbart as if voter fraud were real.93 It was harrowing, he wrote. A “pivotal, close election was likely changed through voter fraud on November 8, 2016.” He claimed he had “proof” that “5,313 people who voted in New Hampshire in 2016 do not actually reside in the state.”94 Yet, just like the 18,000 phantom noncitizens on the rolls in Kansas, just like the “massive” and “pervasive” evidence of widespread voter fraud that has yet to appear, just like the dead-then-not-so-dead Albert Brewer, who rose from the grave and voted in the primary election, Kobach’s charges were once again, as the New York Times noted, “baseless allegations.” Those 5,300-plus voters were overwhelmingly college students, whose nine-month tenure at the state’s higher education institutions made them in 2016 legally eligible to vote in New Hampshire.95
In addition to being built on lie after lie, the Pence Commission’s shaky beginning also included getting hit with eight separate lawsuits for violating a range of federal laws about the setup and operation of government commissions.96 “That kind of recklessness,” columnist Mark Joseph Stern concluded, “can only heighten the widespread suspicion that the commission is interested in something other than ‘election integrity.’ ”97 The suspicion was exacerbated by the selection of witnesses called to testify during its first meeting. For a commission that, according to the vice president, “had no pre-conceived notions,” its initial fact-finding venture featured a cavalcade of “prominent” white conservative men pounding on the “overblown charges of voter fraud.”98 The most controversial and telling witness, however, was a gun researcher, John Lott Jr., who advocated running voters through the same background-check system—mental health, dishonorable military discharges, substance abuse issues, and criminal history—as someone purchasing a gun. Lott’s suggestion had a powerful agenda behind it. As Pema Levy and Ari Berman pointed out, such a system would easily “deter people from voting who are distrustful of law enforcement and want to stay away from a criminal background check.”99 One journalist noted, in fact, that Kobach, von Spakovsky, and Lott “are playing a very serious game, burrowing into the fine print and corners of the voting process to find and exploit ways to rig the rules.”100 Exploiting the toxic relationship between law enforcement and African Americans is one way, as when Mississippi and then Florida posted sheriffs at polling places to reduce the turnout rate. Indeed, a Gallup study found that “there’s a more-than-20-point gap between the portion of blacks and whites who mostly trust the police.”101
General distrust is one thing, but the reality of mass incarceration is another, because the impact on voting rights is profound. In 2016, one in thirteen African Americans had lost their right to vote because of a felony conviction, compared with one in fifty-six of every non-black voter.102 The major villain in this set piece is the War on Drugs, which was a targeted hit on black people.103 African Americans statistically do drugs no more than any other racial or ethnic group but are imprisoned for drug charges at almost six times the rate of whites. Hyper-policing in black communities has meant that while “African Americans represent 12.5% of illicit drug users,” they are “29% of those arrested for drug offenses and 33% of those incarcerated in state facilities for drug offenses.”104
In America, mass incarceration equals mass felony disfranchisement. With the launch of the War on Drugs, millions of African Americans were swept into the criminal justice system, many never to exercise their voting rights again. Indeed, the felony disfranchisement rate in the United States has grown by 500 percent since 1980.105 Each state, to be sure, has its own rules. In Vermont and Maine, there is no felony disfranchisement, even when the person is incarcerated. But that has little impact on the vote totals for African Americans, who are only 1.3 and 1.5 percent, respectively, of those state’s populations.106 The other forty-eight states have some form of disfranchisement. Generally, the incarcerated cannot vote, but once they have served their time, which sometimes includes parole or probation, there is a process—often arcane and opaque—that allows for the restoration of voting rights. Overall, 6.1 million Americans have lost their voting rights. Currently, because of the Byzantine rules, “approximately 2.6 million individuals who have completed their sentences remain disenfranchised due to restrictive state laws.”107
The majority are in Florida. The Sunshine State is actually an electorally dark place for 1.7 million citizens because “Florida is the national champion of voter disenfranchisement.”108 The state leads the way in racializing felony disfranchisement as well. “Nearly one-third of those who have lost the right to vote for life in Florida are black, although African Americans make up just 16 percent of the state’s population.” In fact, “Florida’s law disenfranchises 21 percent of its total African American voting-age population.”109
The push to eliminate blacks’ access to the ballot box dates back to the end of the Civil War. As white Southern leaders strained to maintain their power and curtail the potential strength of the newly freed, Florida wrote felony disfranchisement into its new constitution. Then the state, like others in the old Confederacy, deployed the burgeoning criminal justice system to craft laws designed for or enforced only against African Americans. The criminalization of blackness led to labor camps, with the added bonus of the curtailment of blacks’ constitutional rights, including voting.110
Florida is one of only four states, including Kentucky, Iowa, and Virginia, that “permanently” disfranchises felons.111 The term “permanent” means that there is no automatic restoration of voting rights. Instead, there is a process to plead for dispensation, which usually requires petitioning all the way up to the governor after a specified waiting period. Republican governor Rick Scott has made that task doubly difficult. The Florida Office of Executive Clemency, which he leads, meets only four times a year and has more than ten thousand applications waiting to be heard. An ex-offender cannot even apply to have his or her voting rights restored until fourteen years after all the sentencing requirements have been met. The process is therefore daunting enough as it is, but Scott has slowed it down considerably.112 His predecessor, a moderate Republican turned Democrat, “restored rights to 155,315 ex-offenders” over a four-year span. Since 2011, however, Scott has approved only 2,340 cases.113 As a result, the state is able to gain the extra representatives in Congress that its population—including the prison population—warrants, while, similar to the Constitution’s Three-Fifths Compromise, politically silencing millions of citizens who give the state its additional clout and power in Washington, D.C.
The Department of Justice has exacerbated the threat. In June 2017, its Civil Rights Division sent a letter to forty-four states demanding details on “how they keep their voter rolls up-to-date.” There was nothing in the letter at all inquiring about what the states were doing, via the NVRA, to expand access to the ballot box. Rather, using language that echoed that of Kris Kobach, Jon Husted, Brian Kemp, J. Christian Adams, and every other vote suppressor in power, Attorney General Jeff Sessions focused on “voter roll maintenance,” which has been the key to purging millions of American citizens from the voter rolls.114 The seeming legality of hiding behind the language of the “integrity of the ballot box” and merely following the mandate of the NVRA for “voter roll maintenance,” all the while gutting the Fifteenth Amendment, is why purging voter rolls is really “undercover racism.”115
The United States is now at the tipping point where the concerted efforts at the state and federal level to purge American citizens and cull and homogenize the electorate is a clear and present danger to democracy.116