Election Integrity: Voter Suppression in Alabama’s 2017 Special Election, by Janet Maker
This is the fifth article in our series examining election integrity.
People interpret the December 2017 victory of Doug Jones in the Alabama special election in different ways. Some right-wingers blamed voter fraud by a “coalition of Muslim and Marxist-led groups” in the same way they blamed Donald Trump’s loss of the popular vote in 2016 on “illegal immigrants” or “illegal aliens.” No credible evidence has been found for either claim. On the other hand, many Democrats saw Jones’ victory as evidence that the electoral system in the United States is healthy and in good working order. I wish that were true.
While the election does prove that it’s not impossible for Democrats to win, the playing field is not level. On a level playing field, both parties have an equal chance of obtaining a majority of the vote. On a playing field that’s rigged by voter suppression and black box voting machines, Democrats might require 10 or 15 percent more voters in order to win a simple majority.
Since the Jones-Moore race was for a Senate seat, not a House seat, gerrymandering was taken out of the equation. Gerrymandering can only occur when there are legislative districts. Since senators represent the entire state, which has only one district, Senate seats cannot be gerrymandered as House seats are. That’s good news.
The other good news is that Jones reportedly raised more money than Moore did. The publicity that money can buy can go a long way to increase voter turnout to the point that it might overcome voter suppression. Jones also had a large group of volunteers mobilizing voters. As a candidate named Barack Obama once reportedly said: “You can’t steal all the votes all the time. Turn out so massively, they just can’t steal it.”
Now the bad news. The gutting of the 1965 Voting Rights Act in 2013 allowed states like Alabama to pass new election laws without having to clear them with the Department of Justice. Alabama, among other states, quickly moved to disenfranchise minority voters.
Within two hours of the disastrous Supreme Court decision, Alabama announced its intention to implement the most restrictive photo ID law in the nation. Alabama’s voter ID law requires that all voters must present a valid photo ID from a limited list of acceptable options. The voter must bring one of these photo IDs to the polls on Election Day or place a copy of the ID in absentee ballot materials. After the Voter ID law took effect, Alabama closed down 31 Department of Motor Vehicle (DMV) offices, which represented 100% of the offices in the eight counties where 75% of registered voters were black. This meant that residents of those counties would have to travel to other counties to apply for driver’s licenses or non-driver IDs. They also raised the fee for a driver’s license renewal from $23.50 to $36.25.
U.S. Transportation Secretary Anthony Foxx said in a statement, “DMVs play a critical role in the day-to-day functioning of the American people, including ensuring their ability to drive to work and other essential services and to get proper identification needed to vote or open a bank account. No one should be prevented from accessing these services based on their race, color or national origin,”
Alabama agreed to reopen the offices one day a month, but after critics complained that was not enough, the hours were finally extended.
On election day, there were numerous voter ID problems, with poll workers questioning the validity of some voters’ IDs and some rejecting them outright. In the city of Mobile, some voters whose addresses on their driver licenses did not match their voter registration were referred to a clerk rather than being allowed to immediately vote. Brock Boone, a lawyer for the American Civil Liberties Union of Alabama, who received reports about the situation, said the procedure was outside the bounds of Alabama’s photo voter ID law. Boone said some people were essentially denied the right to vote. Secretary of State John Merrill said Alabama’s voter ID law does not require the address on the voter’s driver license to match voting registration records.
According to recent figures, 118,000 registered voters in Alabama lack an approved voter ID, and black and Latino voters are approximately twice as likely as white voters not to have an approved ID. The significance of this can be understood if we consider that Doug Jones beat Roy Moore by fewer than 21,000 votes.
U.S. citizens generally cannot vote unless their names appear on voter registration lists, also called voter rolls. Regular voter purges are needed to keep the rolls accurate and up to date by removing names of voters who have moved or died or are otherwise ineligible. However, there is a tradition of illegal purging of eligible voters who are likely to vote for the wrong party, and some purges have been challenged, especially in Ohio, Georgia, Kansas, and Iowa. Voting rights groups contend that the purges disproportionately target black, Latino, poor, young and homeless voters who usually vote Democratic. Courts in Florida, Kansas, Iowa, and Harris County, Texas have ordered election officials to halt purges or to restore thousands of voters to the registration rolls.
In June 2017, Kris Kobach, Secretary of State of Kansas and chairman of President Trump’s Election Integrity Commission, sent a letter to all 50 states requesting their full voter-roll data, including the name, address, date of birth, party affiliation, last four digits of their Social Security number, and voting history back to 2006, of potentially every voter in the state. Some of the states and some advocates for voting rights and civil liberties sounded alarms over the letter. “The concern is that this is going to be used to justify regressive and disenfranchising federal law,” Myrna Pérez, deputy director of the democracy program at New York University Law School’s Brennan Center for Justice, said in an interview. Vanita Gupta, chief executive of the Leadership Conference on Civil Rights and former head of the Justice Department’s civil rights division, said on Twitter that the letter is “laying the groundwork for voter suppression, plain & simple.”
An example of how this information can be used to get registered voters off the rolls is the Interstate Crosscheck System, a data collection program run by the same Kris Kobach. States participating in Crosscheck send their voter registration files to a server, and Kansas election authorities download the files. They compare voters’ first and last names and birthdates with those of registered voters in other states. Kansas then sends each state a list of its registered voters who have names that match those of voters in other states, and each state decides what to do with the data. Crosscheck provides some guidelines for purging registered voters from the rolls, and some states have wrongfully removed legal voters based on Crosscheck matches. The reason seems to be that validly registered voters are listed on the Crosscheck report if they match a voter in another state on first name, last name, and date of birth even if their middle names or suffix (Jr, Sr, III) and last four digits of the social security number don’t match.
The stated purpose of Crosscheck is to detect people who vote in more than one state, a problem that doesn’t really exist. An actual effect of the program seems to be to purge legal voters, mostly minorities. A working paper published by researchers at Stanford, Harvard, University of Pennsylvania and Microsoft showed that in 2012 and 2014, Crosscheck sent the state of Iowa information on nearly 240,000 voter registrations that shared a name and date of birth with a voter in another state. After analyzing the data, the researchers found that, of the 240,000 paired registrations that Crosscheck sent to Iowa, there were only six cases where it appeared that the same person registered and voted in two different states. This means that more than 99% of the “matches” sent to Iowa had nothing to do with voter fraud. This is because, in a nation of 200,000,000 registered voters, many will have the same first and last names and birthdates. Kobach’s prosecution record on Crosscheck cases: a grand total of nine successful convictions so far, “mostly older Republican males.” Kobach’s relationship with Crosscheck is one of the reasons that voting rights advocates are concerned that President Trump’s Election Integrity Commission may be creating mass voter purges.
State elections officials generally refuse to turn over their Crosscheck lists, but in 2016, Georgia, Virginia and Washington released their lists, which had a total of just over 2 million names. The lists are heavily weighted with names common among minorities, such as Washington, Lopez, Patel and Kim, that usually vote Democratic. Rolling Stone had Mark Swedlund, a database expert, look at the data from Georgia and Virginia, and he was shocked by Crosscheck’s “childish methodology.” He added, “God forbid your name is Garcia, of which there are 858,000 in the U.S., and your first name is Joseph or Jose. You’re probably suspected of voting in 27 states.” In total, 1 in 7 African-Americans, 1 in 8 Asian-Americans, 1 in 8 Hispanic voters, but only 1 in 11 white voters, were at risk of being purged in the 27 states that were enrolled in Crosscheck in 2016 (Washington was the 28th state enrolled, but it decided not to use the results). If even a fraction of those names are blocked from voting or purged from voter rolls, it could alter the outcome of an election, and in fact, investigative reporter Greg Palast shows how voters purged by Crosscheck in key swing states likely did alter the outcome of the 2016 presidential election.
There is another voter registration data comparison system, called ERIC, or the Electronic Records Information Center. It’s non-partisan, more secure, and more accurate than Crosscheck. In addition to finding duplicate voter registrations, ERIC identifies unregistered eligible voters and requires member states to send them voter registration information. Here is a comparison of the two systems. It seems the only reason a state would use Crosscheck rather than ERIC is to suppress the vote.
According to Greg Palast, Crosscheck created a list of 239,801 Alabamians tagged as “potential” duplicate voters. He was able to access about a third of that list, and he says it’s a hit list of black, Latino and Asian-American voters. Although Alabama has not arrested any of these alleged “double voters,” the state has purged tens of thousands.
Another way to keep minority voters off the rolls is to prevent convicted criminals from voting. For generations, most Alabamians convicted of a felony were barred from ever voting in the state again. Until May 2017, 250,000 Alabamians were denied the right to vote under this law, but the right to vote has been restored to some of them.
In Alabama, rapists and murders were permanently disenfranchised, as were people convicted of a felony involving moral turpitude. The problem was that there was no list or law that spelled out which crimes involved moral turpitude, so the definitions were left up to the counties. Most felons just assumed they couldn’t vote. Facing a lawsuit, Alabama Republican Gov. Kay Ivey signed the Definition of Moral Turpitude Act in 2017, which provides a list of about 50 acts that constitute moral turpitude for the specific purpose of the right to vote.
Thousands of felons not guilty of moral turpitude regained their right to vote, but Secretary of State John Merrill claimed it was not his responsibility to notify those voters that they are eligible to vote again. However, Pastor Kenneth Glasgow led the effort to get as many as possible to register in time to cast a ballot in the Dec. 12 special election for Jeff Sessions’ former senate seat. Glasgow estimates that his group, The Ordinary People Society (TOPS) registered five to ten thousand voters. Imagine what would happen in Alabama if all 250,000 felons had their voting rights restored.
One major bar to restoring voting rights are laws enacted by Republican legislators in Alabama and eight other states that disenfranchise anyone with outstanding legal fees or court fines. For example, in Alabama more than 100,000 people who owe money — roughly 3 percent of the state’s voting-age population—are not eligible to vote. “In order for you to have your voting rights restored, you have to make sure all your fines and restitution have been paid,” Merrill said in a phone interview.
In 1964, the 24th amendment abolished the poll tax, but in Alabama, money keeps thousands of people away from the ballot box. Experts say that Alabama’s felon disenfranchisement policies are probably unconstitutional, and they have bigger impacts on felons who are poor, black, or both.
Researchers with the University of Pennsylvania and Harvard and Yale universities crunched Alabama court records and data from the past two decades for a recent study published in the Journal of Legal Studies. The research paper states that “a majority of all ex-felons in Alabama – white, black, or otherwise – cannot vote because of a debt they owe to the state.
In 1970, the US Supreme Court ruled in Williams v Illinois when courts impose penalties for non-payment of fines, they must take the defendant’s ability to pay into account. Alabama has similar rules: when deciding whether to impose a fine, they should consider “the financial resources and obligations of the defendant and the burden that fine will impose” and “the ability of the defendant to pay a fine.” Judges in Alabama appear to be disregarding those rules.
Caging is another technique aimed at getting voters off the rolls. Voter caging refers to challenging the legality of the registration status of voters. Usually, a political party will send out non-forwardable, first-class mail to a set of voters they want to target, such as a demographic that belongs to the opposing party. Sometimes they send certified letters that require the recipient’s signature. If the recipient is not home, the letter is returned. In either case, all the mail that is returned as undeliverable is placed on a “caging list.” The party then uses the caging list to challenge the registration status of voters and purge them from the rolls. In Ohio, before the 2008 presidential election, there were about 600,000 voters on the caging list, so we are talking about numbers that could easily affect the outcome of elections.
Another variation of caging involves removing voters from the rolls for not voting. Ohio is particularly notorious for this. After a two-year break from voting, the state sends the voter a confirmation notice. If there is no response and the person does not vote over the next four years, Ohio removes her from the list of registered voters and the voter has to re-register. The A. Philip Randolph Institute, a labor and civil rights group, filed a lawsuit against Ohio’s secretary of state, Jon A. Husted, alleging that this process violates the National Voter Registration Act of 1993, which bars states from removing someone from the voter registration list for not voting and sets out a process for states to remove voters who have moved away. The state prevailed in federal district court, but the U.S. Court of Appeals for the 6th Circuit reversed it. In January 2018, the Supreme Court will hear oral arguments in Husted v. Randolph Institute.
“I am deeply concerned that if the Supreme Court sides with Ohio in this case, we will see states taking a copy-cat approach, and taking steps to gut the NVRA and gut the voter rolls across the country,” says Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law. In October 2017, a lawsuit initiated by the Lawyers’ Committee forced the New York City Board of Elections to admit that it had broken state and federal laws by removing more than 200,000 voters from the city rolls before the 2016 presidential primary. Some say this was an intentional effort to prevent Bernie Sanders from winning the Democratic primary.
The Alabama special election featured the second type of caging. Shortly after the polls opened in Alabama in December 2017, many voters found that they had been moved to the “inactive voter list,” apparently because Secretary of State John Merrill had decided to “refresh” the state’s voter rolls. This is from an article in Slate:
According to Merrill’s office, the state government first sent non-forwardable postcards to all 3.3 million Alabama voters containing their voter registration information. If the information was accurate, voters were asked to merely “retain” the card. If the information was inaccurate, they were asked to mark return to sender and drop it back in the mail. The state then sent a second, forwardable postcard to everyone whose first card was returned by the post office as undeliverable. That second postcard asked voters to update their information.
Alabamians who did not respond to this second postcard were, per Merrill’s plan, to be placed on the inactive list. Inactive voters can still cast a ballot on election day, but they are required to reidentify themselves and update their information at the polls. If inactive voters don’t cast a ballot for four years, they may be purged from the rolls. Inactivity, then, is essentially the beginning of the removal process.
Theoretically, voters who received the first postcard and did nothing (as instructed) remained active and received no further correspondence. Stuart Naifeh, a voting rights attorney at Demos, told me that, under the federal National Voter Registration Act, states cannot begin to remove voters from the rolls without some initial indication—such as bounced mail—that they have changed addresses. To put it another way: If Alabama is listing voters as inactive because they didn’t respond to one or both postcards—but neither was returned to sender—it is probably breaking federal law.
Voters who cast ballots in every election should not be told that they have abruptly become inactive.
On Wednesday, the secretary of state’s office told me that voters who received the first postcard—that is, voters whose postcards didn’t bounce in the mail—but didn’t respond “remain in active status because it is assumed they received the card based on the instructions.” But Coty Montag, deputy director of litigation at the NAACP Legal Defense and Educational Fund, told me that many voters were in fact told they were inactive even though they voted in 2016 and have lived at the same address for years. There is no legal reason why these individuals should have been considered inactive. But, Montag said, the NAACP LDF’s election monitors fielded complaints from voters who were bumped to the inactive list for no apparent reason other than their failure to return the card. I told Montag that the secretary of state’s office insisted these voters would remain active. “That’s just not what we were seeing,” she told me. If Montag is correct, it seems likely that Alabama violated the NVRA.
These voters’ inactivity wouldn’t be a serious snag if poll workers, and the secretary of state, dealt with it correctly. In many cases, they did not. Under state law, inactive voters can become active and cast a regular ballot once they reidentify themselves, which should be as easy as presenting their photo IDs. (Alabama requires an ID to vote.) But on Tuesday, these voters were compelled to fill out a lengthy, complex form that required them to list, among other things, their county of birth. Montag and Naifeh believe this requirement may also violate the NVRA.
According to the NAACP LDF, some poll workers were uncertain whether they could accept reidentification forms from inactive voters who forgot the county in which they were born. Others gave inactive voters provisional ballots even if they filled out the entire reidentification form correctly. (Individuals who cast provisional ballots have until Friday afternoon to plead with the probate office to count their votes.) In Montgomery County alone, the NAACP LDF says, as many as 40 inactive voters who properly reidentified themselves were forced to cast provisional ballots. And at least one poll worker in Tallapoosa County reportedly informed a man in the inactive list that he could not vote at all.
The Help America Vote Act (HAVA) of 2002 gives every voter the right to cast a provisional ballot if she believes herself to be registered but she is unable to cast a regular ballot. Reasons for not being able to cast a regular ballot might be that her name does not appear on the voter registration list at the polling place, or she does not have the required form of voter ID, or election officials challenge her eligibility for another reason. After she casts the provisional ballot, election officials must attempt to verify her eligibility in order to determine whether her ballot will be counted. Some states require that the voter take steps such as submitting the proper ID within a specified time limit.
Many poll workers are not properly trained to handle provisional ballots. They might try to give a provisional ballot to a voter who is eligible for a regular ballot, or they might fail to inform a voter whose eligibility is challenged that she has the right to cast a provisional ballot. Also, there are no uniform, national standards for counting provisional ballots. For example, some states will not count provisional ballots cast in the wrong precinct.
HAVA requires that all states are required to provide voters who use provisional ballots the opportunity to find out whether their ballot was counted or rejected, and if rejected, the reason why.
Almost as soon as voting started in the Alabama special election, civil rights groups began receiving hundreds of complaints about voter suppression, including forcing registered minority voters to cast provisional ballots.
Here is a voter’s statement:
“But when she arrived at her polling place, the First Assembly of God Church, on Tuesday morning, Jiles was told that she was “inactive” on the rolls and would have to cast a provisional ballot — a ballot that will not be counted unless she is able to verify her voter information.
“That makes no sense,” she told ThinkProgress, explaining that the poll workers told her she’d have to drive to another precinct to update her information, even though she voted here last November.
“It’s not that we’re not showing up to vote — we’re being suppressed,” Jiles said. “[Roy Moore] is going to win, not because our people didn’t speak, but because our vote was suppressed.”
Jiles said she witnessed at least six other voters also being forced to vote provisional, and reports on Twitter indicate the issue is more widespread than just this one polling location.
Civil rights advocates are working to counter an intimidation campaign by the Public Interest Legal Foundation (PILF), a conservative group headed by J. Christian Adams, a member of the Kobach commission. PILF has sent threatening letters to state election officials, demanding the right to inspect voter rolls that it claims are inaccurate. One of the right-wing groups working with PILF is the American Legislative Exchange Council (ALEC), which has helped states write voter restriction laws. In addressing ALEC, Adams said, “Voter ID is an important thing, but it’s yesterday’s fight.” The bigger threat today, Adams told ALEC conferees, is “aliens who are getting on the rolls and aliens who are voting.” Registration, required in every state except North Dakota, is “the gateway” to voting, notes Levitt. Republicans seem to want to close that gateway.
In theory, both parties could engage in caging, but Democratic voters are far more vulnerable to the practice, since they are usually younger and poorer than Republicans. They are less likely to own their own homes and to remain at the same address. For example, in Michigan in 2008, the Obama legal team sought an injunction to stop an alleged caging scheme using home foreclosure lists to challenge voters still using their foreclosed homes as their address. The judge found the practice to be against the law.
Voter caging may be legal if the main purpose is to identify people who are not properly registered and prevent them from voting illegally. However, under the National Voter Registration Act of 1993 (NVRA) caging is a felony if the main purpose is to disenfranchise legitimate voters.
According to Greg Palast, Alabama Judge Roy Moore’s 2017 campaign chief, Brett Doster, committed criminal caging for the George W. Bush campaign in 2004. Palast says he has proof in the form of Doster’s own confidential emails, obtained while Palast was investigating him for BBC Television.
Suppressing black voter turnout
Prior to the Alabama special election, the media kept repeating that black turnout needed to increase. What we didn’t hear was that Alabama has a long history of creating barriers to keep black turnout low.
Campaign finance restrictions
One tactic used in 2017 was the crippling of the Alabama Democratic Conference (ADC), one of the most important organizations for advancing black political participation. Since 1960, the ADC has worked to protect the voting rights of the state’s black citizens, and it became a central player in get-out-the-vote (GOTV) efforts. So Alabama passed a law that reduced ADC’s revenue stream. The new law bans any political group from contributing financially to support any other political group for any purpose. Legal scholar Richard Pildes explains the effect of the new law:
Given the economic position of many blacks in Alabama, the ADC charges membership dues of only $15/year, and less than half its financial resources traditionally came from these dues. More than half its financing for things like GOTV efforts came from organizations representing teachers and trial lawyers, which shared ADC’s political aims. When Alabama banned political groups from providing financial support to other political groups, it cut off nearly half the money ADC received for its GOTV efforts.
Especially in the era of Citizens United, the new law appeared to be an unconstitutional infringement on political association and political speech. The only other state with a similar ban on political groups helping each other financially was Missouri, and a federal court ruled Missouri’s law unconstitutional. ADC sued in an effort to get the Supreme Court to address these issues, but the Court declined to hear the case.
Making it harder to register and vote
Alabama has consistently refused to implement the kinds of reforms that have expanded black voter turnout in states where they are permitted, making it harder to vote in Alabama than in most other states. For example, Alabama does not permit automatic voter registration, same day voter registration, preregistration for teens, or early voting. Voters who cannot make it to the polls on election day may be able to vote absentee, but Alabama does not offer no-fault absentee voting. In most states, voters don’t have to give a reason to be allowed an absentee ballot. By contrast, you may vote by absentee ballot in Alabama only if:
- you will be absent from the county on Election Day, or
- you are ill or have a physical disability that prevents a trip to the polling place, or
- you are a registered Alabama voter who is temporarily living outside the county (such as a member of the armed forces, a voter employed outside of the United States, a college student, or a spouse or child of such a person), or
- you are an appointed election officer or poll watcher at a polling place other than your regular polling place, or
- you work a required shift – 10 hours or more – that coincides with polling hours
Alabama has more bureaucratic hurdles to voting than most other states:
Absentee ballot applications must be received 5 days before Election Day. Voted ballots must be postmarked by the day before Election Day if sent by mail or received by 5:00 p.m. on the day before Election Day if delivered in person.
In order to have your vote counted in Alabama, you must register to vote 14 days before the election. You can register online, but only if you have an Alabama driver’s license or non-driver ID. Otherwise your registration information must be mailed or filed in person. If you miss the deadline, you can’t vote.
As mentioned previously, voters who skip voting in an election might be marked as “inactive” on the voter registration rolls and prevented from voting.
To keep matters as confusing as possible, Alabama authorities refuse to provide voter education. When any changes occur that expand voting rights, state officials do not provide any voter education to spread the word.
Alabama has also closed some polling places in black areas. One study found that at least 868 polls were closed between 2012 and 2016 in states that lost federal oversight. Though the study looked at only 18 of Alabama’s 67 counties, it found at least 66 polling place closures in 12 of them. An analysis comparing the Associated Press count of Alabama precincts in the 2012 election (2,711) to the New York Times’ count in 2016 (2,522) found a loss of 189 precincts — an almost 7 percent decrease in a state where the population grew by nearly 2 percent between 2010 and 2016. Fewer polling places meant long lines at the polls in freezing December weather in the 2017 special election. At least one polling place ran out of ballots. Others had far too few poll workers, forcing voters to stand in line for much longer than anticipated. Research has shown that black voters are six times more likely than whites to have to wait for an hour or more. This could not only discourage some from voting, but it could make voting impossible for others, such as those who were trying to cast a ballot while going from one job to another.
Apparently black voters were also provided with misinformation to make it more difficult for them to get to the polls. Kristen Clarke, president and executive director of the Lawyers’ Committee, said her group was investigating text messages that incorrectly informed voters their polling place had changed. She said the Lawyers’ Committee had also contacted Twitter to try to get posts containing inaccurate information removed but she was “disappointed by the response rate” in pulling those posts down.
Alabama Secretary of State John Merrill was quoted in a documentary about voting rights, saying, “As long as I’m Secretary of State of Alabama, you’re going to have to show some initiative to become a registered voter in this state.”
Prior to the 2013 gutting of the Voting Rights Act, the U.S. Department of Justice (DOJ) would send election observers to monitor potential voter discrimination or intimidation. In Alabama, the DOJ sent 233 observers on 20 occasions between 2000 and 2012 to protect black voters. Lack of observers opens the door to abuse. Without observers, the only recourse for voters facing problems on election day is to call a government complaint hotline or a civil rights group.
Another type of voter intimidation deployed in the same election was a police presence near locations with many black voters. For example, journalist Ken Klippenstein reported that he had seen multiple police enter a polling station at the Vaughn Park Church of Christ in Montomery, AL, and he has a video of one of them. “Cop just arrived at the polling station I’m at here in Montgomery, Alabama,” Klippenstein tweeted on Tuesday. “An NAACP official told me that in previous Alabama elections, police have checked voters for outstanding warrants at polling stations, which can deter people from voting.” Montgomery, AL, where Klippenstein saw the police at the polling station, has a population that is almost two thirds black.
Coty Montag, deputy director of litigation at the NAACP Legal Defense and Education fund, received a call from Democratic-leaning, majority-black Jefferson County, reporting that police were stationed outside of a polling place pulling people over for making illegal turns as well as checking IDs for outstanding warrants. Police reportedly held at least one woman, who was on her way to vote, for nearly an hour while writing her up. When NAACP election monitors showed up, the police promptly left.
Alabama’s Secretary of State has threatened to charge anyone who violates election laws with a felony. Alabama’s election laws are complex and confusing, and the threat of arrest is likely to intimidate voters, especially with police hovering nearby. There were reports of fliers being distributed in black neighborhoods warning that people with unpaid traffic tickets or outstanding warrants could be arrested by undercover police.
Alabama also passed a law that made crossover voting illegal. This means that people who voted in one party’s primary could be charged with a felony and face fines and imprisonment for crossing over to vote in the other party’s primary run-off election. The move signals a hardline approach that adds fraudulent crossover voting to the list of other felony voting crimes, such as voting twice. Critics accused Alabama Secretary of State John Merrill of trying to intimidate voters.
After the Republican primary run-off between front runners Roy Moore and Luther Strange, Merrill claimed that 674 people who voted in the run-off had also voted in the Democratic primary. He said their names would be given to prosecutors, and he told ThinkProgress that he believed anyone who violated the law should face the maximum penalty: a fine of up to $15,000 and as many as 10 years in prison. After the 674 cases were investigated, there wasn’t a single incident in which a judge recommended referring the case to local prosecutors for potential charges. Alan King, the county’s probate judge, told HuffPost that more than 300 of the cases came from a precinct where the chief inspector had crossed off names in a pollbook to indicate people who were ineligible to vote. Merrill’s office, King said, misinterpreted those crossed-out names as people who had illegally voted in both the Democratic primary and the Republican runoff. King said Merrill had threatened voters “prematurely.”
Merrill’s office said it will document the names of crossover voters, but that it now considered the matter closed. However, widespread confusion over new election laws and Merrill’s recommendation that crossover voters be prosecuted led many to believe that voting incorrectly or against your party could lead to jail time.
Randall Marshall, the executive director of the ACLU of Alabama, said the new law was not necessary to prevent crossover voting. “This was always a matter that could be prevented by state election officials ― after all, they have the records of who voted in the initial primaries and could effectively prevent such a person from voting in a runoff election. We hope the fear of prosecution has not deterred any eligible voters from participating in the upcoming election, and we are focused on ensuring Alabamians are informed about their right to vote on December 12.” Rep. Terri Sewell (D-Ala.) previously accused Merrill of trying to intimidate voters by promising such harsh penalties.
Voter intimidation is not new. The Republican National Committee was sued for voter intimidation in 1981:
The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with ‘National Ballot Security Task Force’ armbands. Some of the officers allegedly wore firearms in a visible manner.
The RNC was forced to enter into a consent decree and required to “comply with federal and state voting laws, get court consent before engaging in ballot security activities, and to refrain from intimidating practices like interrogating prospective voters at the polls and removing lawful campaign materials from polling sites.” Unfortunately, the 2013 gutting of the Voting Rights Act opens the door to more abuses of this sort.
Spoiling the ballot
According to Greg Palast, spoiling is a technical “gotcha” that is used selectively against black voters. In the Alabama special election the ballot contained only the Senate race and, in some counties, a local referendum. But there was also a box for “party-line” votes. If a voter selected “Democratic Party” and also voted for the Democratic candidate, the vote could be tossed in the “spoilage” bin instead of being counted, because he “over-voted,” or voted twice.
This is not a new trick, and it can change election results. Palast reports seeing the “over-vote” spoilage trick used to eliminate 700 Al Gore votes in Gadsden County, Florida, in 2000. Seven hundred is more than the 537 votes that supposedly elected George W. Bush. He also reports seeing it used in November 2016, in Detroit, Michigan, where 70,355 ballots were not counted, in part because of the same over-vote trick. Throwing out those Detroit ballots gave Donald Trump his supposed 10,700-vote margin to win Michigan.
Alabama votes using paper ballots, which is great because, unlike “black box” voting equipment, paper ballots are available for audits and recounts. The problem is that they are only available if the public has access to them, and Alabama has a history of denying access.
For example: In 2002, Alabama’s Democratic Governor Don Siegelman was re-elected in a close election and the result was announced by Associated Press. Then, officials in Republican Baldwin County locked the courthouse doors and claimed they had suddenly “found” enough ballots to flip the election. They did not allow anyone to see those ballots. Siegelman considered seeking a recount but decided to concede, saying that requesting a recount would have taken months of legal maneuvering.
Today Alabama counts its votes using optical scanners. The scanners don’t count the actual ballots, but instead they count digital images of the ballots, and then they erase the images from the computer’s memory. Prior to the 2017 special election, election integrity activist John Brakey, co-founder and executive director of AUDIT-AZ, sued to require Alabama to save the images. He charged that erasing the images denies citizens the opportunity to check election results for errors and evidence of rigging. A comparison of copies and originals can show whether machines are scanning and counting correctly.
According to his lawsuit, “Alabama election officials are required to save the ballots and other election materials for six (6) months in the case of state elections and twenty-two (22) months in federal elections,” and federal election law “requires the retention of all records, papers, and materials by officials of elections.”
Election integrity activist Bev Harris, founder of Black Box Voting, said, “there’s no legitimate reason” not to preserve the files: it “costs no money and takes no time.” In fact, Harris says, the manual for Alabama’s DS200 scanners specifically states that “the purpose of the ballot images was to help with auditing.” She also notes that Freedom of Information law is “based on the idea that we’re already paying for the government, so we already own the documents.”
Other states that release their ballot images to the public include Florida, Michigan, and Wisconsin, and some jurisdictions will even post ballot images online.
There is also legal precedent for requiring that the files be preserved: Colorado and Arizona have both ruled in favor of keeping the images, and Arizona Superior Court Judge Richard Gordon explained, “If you take voted ballots, take a photocopy of them and use those copies to count votes, what makes you think that you can destroy them?”
Bev Harris claims that, as states have started to move away from touchscreen systems, election officials have been enacting “very subtle legal changes” to hide election records from the public — she calls this “corruption protection procedures.”
Alabama Secretary of State John Merrill asserts that the digital images are not needed because they still have the paper ballots. One problem with this argument is that nobody has access to the physical ballots. According to Merrill’s spokesman John Bennett,
“There is not an individual in the elections process that would be able to break the seal on those [ballot] boxes,” Bennett said. “None of those people, without a court order, would be able to review those ballots. And the same would apply whether that was a digital image or a paper image.”
We have explained in a previous blog how optical scanners can be undetectably programmed to change the tally, and there are many reported cases where miscounts were discovered. If the ballot images cannot be compared with the actual ballots, there is no way to make sure that didn’t happen. It may be that Alabama election officials are morally impeccable, but the public should not have to rely on faith. There should be transparency instead.
On Monday, December 11, John Brakey won a court order requiring Alabama counties to keep copies of the ballots after voting on December 12. However, later the same day, GOP officials, in an “ex-parte” (i.e.private) meeting with an Alabama Supreme Court judge, obtained a “stay” of the court order. This stay permitted Alabama counties to destroy all the ballot images, which they did. It’s hard to have faith in the moral purity of officials who resist transparency at all costs.
Alabama officials claim that the recount process can bring assurance that the election is honest, but one obvious problem is that if citizens are not allowed to check the tally against the original ballots, there is no way to know when a recount is needed.
Alabama law states that if a candidate for any public office in a general election “is defeated by not more than one half of one percent of the votes cast for the office,” state statutes stipulate that a recount must be conducted unless the defeated candidate waives the right to a recount. In addition, candidates for certain state offices may petition for a recount even if the margin of victory falls outside the 0.5 percent needed for an automatic recount. The time period for a recount ends 48 hours after the official canvass of county returns.” Presumably,, the ballot images are kept that long. Candidates for the United States Congress cannot petition for a recount.
In Alabama, even if a defeated candidate has met all the qualifications and is willing to pay for a recount, Harris has one more piece of bad news. “Guess what? The state never counts the physical ballot.” Incredibly, in Alabama, the same image files that were questioned are the same exact ones that will be used in a recount, which means that the recount is a sham. There is no transparency and no accountability.
Alabama voters should not have to jump through hoops to register to vote, to cast their ballots, and to have their votes counted. Citizens who vote in every election should not be told that they are inactive. They should not have to remember their county of birth in order to vote. They should not have to worry about being arrested if they turn up at the polls or make a mistake on their ballot.
Alabama voters were able to overcome those hurdles in the December 12 election, but there is no way to measure how many were blocked from voting. Jones won in spite of suppression of the black vote, not because it didn’t occur.