Voter Suppression and Civil Society
Dallas County Sheriff Jim Clark stands in the courthouse door to prevent Rev. C.T. Vivian from escorting a group of citizens to voter registration office, circa 1965.
It’s voter registration season and all sides are ratcheting up “get out the vote” efforts while simultaneously undertaking strategies to oppose other get out the vote efforts. The first action — increasing voter registration — is legitimate even if it increases voting by people of one political bent more than another. The reaction — implementing strategies to oppose the first action — is merely the offspring of earlier and typically more violent efforts to suppress voters. It is legitimate, of course, to file complaints with the IRS regarding the alleged partisan campaign intervention style of voter registration that Ben reported about yesterday. Let the referee decide. It is most certainly illegitimate to use the power of incumbency and law to suppress voter registration. That is how voter suppression is accomplished in the brave new world, and that is what Arkansas is doing right now according to a nonprofit organization called Get Loud Arkansas.
Voter registration is perhaps the quintessential nonprofit activity of the Tocquevillian tradition. It is probably the most nonprofit of all civil society activities. Nobody gets fed by it and there is not a scintilla of profit in the effort. The only payoff is the hope of increased grassroots civic engagement. And yet all sides think of voter registration efforts as something akin to selling used cars. In our two party society, both sides accuse the other of being motivated by the hope that registrants will vote for a particular candidate. The accused always denies the accusation but denial is really not necessary. Of course that’s the motivation, I am trying to get your ass out of office. Because I think you have your big foot on my neck, proverbially. But motives don’t matter so long as anybody who wants to register is allowed to register. Whether a nonprofit focuses its efforts in minority or working class communities or in conservative churches is hardly relevant. It is way too much to expect that a nonprofit on whatever side should make efforts to register voters in equal numbers blue and red. So yeah, let’s admit that the motivations for voter registration are almost invariably partisan. So what? The kind of altruism that would cause registrars to maintain complete political neutrality probably doesn’t even exist in the human species. We are all too sniveling and conniving.
Anyway, Get Loud Arkansas is nothing but voter registration and it is relevant to this conversation that a black woman, former Democratic State Senator Joyce Elliot, is the face of the organization. Get Loud is suing Arkansas after the state outlawed what appeared to be a very effective online voter registration project allowing voters to sign up electronically. That Get Loud is run by a Joyce Elliott is relevant because if it were run by a Huckabee the State probably would not have acted. The State thought the threat so imminent that it outlawed electronic and digital signatures on voter registration applications by emergency administrative rule. Arkansas now requires “wet signatures” on all voter registration applications. According to the complaint, the Secretary of State at first sang the praises of Get Loud’s online registration platform and was even backed by the Attorney General. But that was then, this is, now. Ironically, in the now almost every other transaction can be accomplished electronically or digitally almost everywhere. What kind of Fred Flintstone world would we live in otherwise?
There are still a few exceptions to electronic or digital signatures in the brave new world. Marriage, birth and death certificates, wills, and codicils often require “wet” signatures. Is a voter registration application similar in effect or importance so that only wet signatures will suffice? We might have been able to critically analyze and decide were it not for the violent history of voter suppression in this country. Here is the introduction to Get Loud Arkansas’s complaint:
1. Get Loud Arkansas, a nonprofit organization dedicated to providing easily accessible means for all Arkansans to register to vote—with a focus on young and minority citizens in particular—created an online tool on its website that allowed prospective voters to complete a voter registration application using a computer or mobile device. Through GLA’s streamlined process, voters filled out the applications digitally, rather than by hand; signed the forms electronically, rather than with pen and ink; and authorized GLA to print and submit the completed application to county clerks. Arkansas’s election officials even assured GLA that this online process was lawful. Indeed, the use of an electronic signature on a voter registration application was so uncontroversial in Arkansas that the Secretary of State’s office stated on multiple occasions that an electronic signature should not be treated any differently than a wet signature, and the Attorney General confirmed this in a formal opinion.
2. But once media outlets began reporting on GLA’s success in registering hundreds of young and minority voters, the Secretary abruptly reversed himself and recommended for the first time that counties reject electronic signatures on voter registration applications. The State Board of Election Commissioners followed suit, ignoring the Attorney General’s opinion and issuing an emergency rule prohibiting electronic signatures. To make matters worse, Arkansas officials have refused to clarify whether registered voters who previously used an electronic signature to register will have their registrations canceled, despite repeated requests from GLA, leaving many currently-registered Arkansas voters in limbo.
3. Although the wet signature rule is a new invention in Arkansas, it bears a striking resemblance to the suppressive tactics that spurred Congress to enact the materiality provision in its landmark Civil Rights Act of 1964.1 The provision seeks to eliminate opportunities for arbitrary, discriminatory practices “in the registration of voters for Federal elections . . . by prohibiting the disqualification of an individual because of immaterial errors or omissions in papers or acts” requisite to voting. H.R. Rep. No. 88-914 (1963), as reprinted in 1964 U.S.C.C.A.N. 2391, 2394. As demonstrated by the legislative record, Congress had good reason to be concerned about such disenfranchisement, especially as it related to voter registration applications. Extensive testimony showed that many local registrars rejected Black applicants based on hyper-technical or entirely invented errors, while they ignored more substantive errors when the applicants were white.
4. These practices resulted in disparate voting opportunities for minority voters in many states, including Arkansas. In 1961, for example, the U.S. Commission on Civil Rights observed that Black Arkansans remained disproportionately unregistered to vote compared to white Arkansans. See Book 1, U.S. Comm’n on Civ. R., Voting: 1961 Commission on Civil Rights Report 105 (1961). As arbitrary barriers continued to disenfranchise voters—and especially minority citizens—Congress determined that national legislation was necessary to prevent states from devising creative methods to deny individuals the right to vote.
5. Yet more than half a century later, the legacy of past discrimination endures. Arkansas has the lowest voter registration rate in the country at only 62 percent, with young and minority voters registered at even lower rates. And its election officials continue to reject new applications, including from Plaintiffs Nikki Pastor and Blake Loper, simply because they signed their applications with the “wrong” instrument—a meaningless technicality that creates unlawful barriers to the franchise and obstructs the efforts of civic organizations like Plaintiffs GLA and Vote.org that use innovative technology to promote civic engagement.
6. Simply put, Arkansas has erected an arbitrary restriction that is irrelevant in determining voter qualifications but denies eligible citizens the right to vote. This Court should enforce the guarantees of the Civil Rights Act and enjoin the enforcement of Arkansas’s wet signature rule.
darryll k. jones