Welcome to the era of the disappearing voter

In March of 1986, Coretta Scott King wrote a 10-page letter urging the Senate to deny Jeff Sessions a federal judgeship on the grounds that he had, as a United States attorney in Alabama, used the “awesome power of his office to chill the free exercise of the vote by black citizens.”

The letter offers a blunt assessment of Sessions’ unsuccessful, racially-charged prosecution of three black voting rights activists in 1985, placing it in a long history of state-directed efforts to suppress black voters and deprive them of full citizenship:

The actions taken by Mr. Sessions in regard to the… voting fraud prosecutions represent just one more technique used to intimidate black voters and thus deny them this most precious franchise…

The exercise of the franchise is an essential means by which our citizens ensure that those who are governing will be responsible. My husband called it the number one civil right. The denial of access to the ballot box ultimately results in the denial of other fundamental rights.

Thirty-one years later, nearly a month to the day, that same body voted along party lines to confirm Sessions as United States attorney general. King’s letter, after being read in part on the Senate floor by Elizabeth Warren and four other senators, was given new life. The stakes, as ever, remained the same.

It is a perfect shitstorm, and millions of voters—particularly voters of color—could disappear into the middle of it.

The former senator from Alabama will now lead the Justice Department under a president who has called for a sweeping federal investigation into non-existent voter fraud and a majority party that shares this obsession with illegal votes. He assumes the office against a backdrop of state-level assaults on voting rights, some of which are being litigated by attorneys that now work for him.

It is a perfect shitstorm, and millions of voters—particularly voters of color—could disappear into the middle of it.

For a moment last week it seemed as though President Trump had moved on from his threat to launch an investigation into his false but oft-repeated claims about voter fraud. But over the weekend, he resurrected the issue and added a few new details.

In an interview that aired before the Super Bowl, Fox News’ Bill O’Reilly asked Trump why he continues to repeat the allegation that three million undocumented immigrants voted illegally in the 2016 election even though there is no credible evidence to support it. “Is there any validity to the criticism of you that you say things you can’t back up factually?” he asked gently.

Trump responded:

It has to do with the registration. And when you look at the registration, and you see dead people that have voted, when you see people that are registered in two states—and that voted in two states—when you see other things, when you see illegals, people that are not citizens and they are on the registration rolls. Look, Bill, we can be babies, but you take a look at the registration. You have illegals, you have dead people, you have this—it’s really a bad situation. It’s really bad.

But what about the three millions votes? O’Reilly asked again.

“Forget that. Forget all that,” Trump replied. “Just take a look at the registration, and we’re going to do it. And I’m going to set up a commission to be headed by Vice President Mike Pence, and we’re going to look at it very carefully.”

Some outlets called this half-pivot a kind of mea culpa, at least by Trump standards. And even Senate Republicans, who have cheerfully swallowed nearly all of this administration’s chaotic whims, have said they don’t believe federal money should be used to investigate the president’s popular vote grudge. But Trump never actually backed away from his unsubstantiated talk about illegal votes tipping the scales; he even doubled down at one point, telling O’Reilly that “many people have come out and said I’m right.” All he’s done is adjust the script.

His new talking points are much more in line with mainstream attacks on voting rights employed by Republican members of Congress—and Jeff Sessions, a sponsor of a federal voter ID law and himself a true believer in the voter fraud myth.

Trump has assembled a team that actively fans the flames of the conspiracies that fuel restrictive voting laws.

“There’s a long history of voter fraud being used to justify discriminatory laws,” Deuel Ross, assistant counsel at the NAACP Legal Defense Fund, told me earlier this week. “That goes back to even before photo ID laws. It goes back to the poll tax, to the literacy tests. So it’s nothing new, but it’s definitely a major concern that the president of the United States is making the unfounded allegations.”

Whether or not Trump follows through with his investigation may not matter all that much. His administration has already done damage by repeatedly signaling that it believes widespread voter fraud is real and supports the kinds of restrictions already in place in North Carolina and Wisconsin.

The 2016 Republican platform also calls for the expansion of the Crosscheck program, a data tool created by Kansas secretary of state and fierce anti-immigrant ideologue Kris Kobach.

There are already more than 20 states, most of them Republican-controlled, that use this database to monitor its vote rolls. But as revealed by an investigative report put out this summer by Rolling Stone, the program is flawed and, whether by faulty implementation or design or both, often targets voters of color for these mass purges.

The program’s flaws have been so pronounced that Oregon, which once used the program, abandoned it. In a statement on the state’s decision, a spokesperson for Oregon’s secretary of state called the data culled from the program “unreliable.”

The expanded use of this program, alongside state-level or possibly federal voter ID laws, could catch millions of legitimate voters in the crosshairs. And the combination of an acceleration of voter restriction laws and a Justice Department that goes dormant—or actively defends them—will do far more damage to the franchise than any executive order Trump could sign.

The Obama administration used its Justice Department to challenge restrictive voting laws, but Trump has assembled a team that actively fans the flames of the conspiracies that fuel them.

The Trump administration’s chaotic approach to governance and public relations often takes the oxygen out of other stories. In this case, Trump’s theatrics feel bigger than the simple fact that there is no such voter fraud epidemic, but it also obscures that keeping keeping updated voter registration lists is already a point of bipartisan agreement.

“There already are solutions to cleaning up the voter rolls that have bipartisan support,” Jonathan Brater, counsel for the Brennan Center for Justice’s democracy program, told me. “The best one is automatic voter registration, which has passed in six states.”

“It’s very important that this not turn into a partisan witch hunt, that it not turn into looking at imaginary cases of widespread voter fraud.” — Jonathan Brater, Brennan Center for Justice

Voting laws in the United States are a patchwork across the 50 states, and people are unpredictable. They move apartments, they register at college while still they’re registered at home, they die. None of this amounts to widespread fraud. But it is why there are national standards in place like the National Voter Registration Act, a law that expands registration opportunities and keep clean voter rolls, and the Electronic Registration Information Center (ERIC), which is a data-matching tool created by the Pew Charitable Trust to help states keep up-to-date lists of eligible voters.

“By using an independent, research-based, thoroughly reviewed process to look at actual problems in our election system, there are ways that we can improve it,” Brater said. “But it’s very important that this not turn into a partisan witch hunt, that it not turn into looking at imaginary cases of widespread voter fraud.”

But this is precisely what the Trump administration has cued up with its talk of massive fraud at the polls. And it’s a place we’ve been before. It was a little more than a decade ago that George W. Bush’s Justice Department tried, and failed, to turn up evidence of widespread voter fraud.

“When top prosecutors failed to find the misconduct and refused to make partisan prosecutions, they were fired. In the fallout, Attorney General Alberto Gonzales was forced to resign in the biggest Justice Department scandal since Watergate,” Michael Waldman, the president of the Brennan Center, wrote in the New York Times last month after a string of Trump tweets announced his intent to convene a federal investigation.

But that doesn’t seem to have slowed the Trump administration. There’s also little reason to believe it’s dissuaded Jeff Sessions, who has continued to call voter fraud a major problem in the United States.

But as Coretta Scott King’s 1986 letter made clear once again this week, this is a problem that predates Trump and Sessions. Which means that the human infrastructure to resist it does, too.

“States have a lot more free rein in passing these laws, and the reality is that whoever the president is, states are always finding new ways to discriminate against voters of color,” Deuel Ross of the NAACP Legal Defense Fund told me. “It’s nice to have the Department of Justice on our side, but it’s not necessary. It doesn’t change the nature of the work we do.”