Why not punish officials who deny citizens their right to vote?

An op-ed by Catherine Rampell in the August 24 Washington Post calls for punishing public officials who act to keep people from voting.

My only hesitation is a concern that some officials probably do honestly think that they’re doing the right thing in passing voter ID laws and the like. But when (as in North Carolina) legislators actively research which forms of ID are more likely to be used by people based on race, income level and likely political leanings, it’s pretty obvious that the purpose it voter suppression rather than voter integrity. The same holds for ending early voting on the Sunday before election day in response to learning that African American voter turnout is high on that day.

As Rampell points out, voter impersonation — the only type of voter fraud that could be affected by requiring voter ID — is extremely rare, especially in comparison with the number of legitimate voters disenfranchised by ID requirements and other things. The on-line version of her article has links to sources providing evidence for that. (See also my previous posts on an audit of the 2016 general election in North Carolina and on one voter ID horror story among many.)

Other states with a history of voter suppression efforts include Kansas (whose secretary of state, Kris Kobach, has a history of interference in elections and now heads President Trump’s “election integrity” commission) and Texas (whose efforts to suppress minority voting lately keep getting blocked by the courts). In some cases it’s not deliberate intent but negligent incompetence that denies citizens their voting rights, as when Kansas used defective software that effectively prevented people from registering to vote even though it told them their registrations had been recorded.

Rampell writes, “If we want state officials to stop erring so often on the side of disenfranchising voters, we need to change their incentives. That is, we need to start punishing them for illegally denying Americans the right to vote, rather than just have courts say, ‘Hey now, don’t do that again.'”

One way to change the system would be for courts to more often grant preliminary injunctions against new election laws undergoing a legal challenge.

“Once the damage is done you can’t really adequately repair it,” says Wendy Weiser, director of the Brennan Center’s democracy program. Courts could recognize this and err on the side of keeping the status quo, at least temporarily.

This would address only deliberate policy changes, though, not incompetence (as in Kansas’s software glitch). So why not raise the possible costs to getting things wrong, to change the calculus?

Congress or state legislatures could, for example, pass laws making it easier for state officials to be held liable for monetary damages if they have illegally denied someone their right to vote. Right now these officials likely have qualified immunity from such suits, according to Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.

For American citizens, voting is a sacred and constitutionally enshrined right. It’s time the country, and those paid to serve the public, actually treat it as such.

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