Voter Suppression by Pandemic

Wisconsin voters faced a choice this week: risk your health or lose your vote.

Those were the stakes on Tuesday, says Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense Fund. “I don’t know that it gets more stark, really more humiliating for us as a democracy,” she tells staff writer Edward-Isaac Dovere on an episode of The Atlantic’s politics podcast The Ticket.

Ifill says that Wisconsin legislators “created a perfect storm where it didn’t have to exist” and that the supreme court’s “terrible decision” allowing the election to proceed needlessly endangered voters. She describes how the current partisan debate around voter suppression obscures its roots as a tool of white supremacy, and she talks about what worries her (and what makes her hopeful) as we look to the election in November.

Listen to their full conversation here:

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What follows is an edited and condensed transcript of their conversation.

Edward-Isaac Dovere: Over the past few years, we’ve seen a lot of moves to change how voting is done in this country, most of it to restrict voting—with voter ID laws and cutting back in various ways to the voting rolls. There have been some moves to expand vote by mail or early voting. But generally, it seems like the direction of voting laws has been to make it trickier for people to vote rather than easier for people.

Sherrilyn Ifill: Yeah, I don’t think we’ve seen a period like this, and in fact that would only make it comparable to the early 1900s, when southern states adopted new constitutions that restricted voting for African Americans. I don’t think we’ve seen a period of sustained retrenchment as we have seen over the past seven or eight years. It’s really quite astonishing. And much of it is steeped in racial voter suppression. Some of it is steeped in partisan voter suppression. And there is an overlap between racial and partisan voter suppression, to be sure. And the willingness of the courts to allow it rather than to see it for what it is.

Dovere: And so it seems like what happened in Wisconsin with the state legislature not moving to change the primary date, it sort of fit into the overall movement that we’ve been seeing around the country—cutting back on voting accessibility—but also in Wisconsin specifically, which has been home to a lot of moves, whether it’s been cutting back the people who are registered to vote or gerrymandering that’s been going on there.

Ifill: When people think about some of the voter suppression that has been most dramatic over the last few years, they think about North Carolina, they think about Georgia. But if I had to pick a northern state, it would certainly be Wisconsin. Wisconsin imposed a voter ID law that a federal court found was created for the purpose of discriminating against African American voters. Wisconsin has a history of partisan gerrymandering that ended up in the United States Supreme Court. So it somehow was not at all shocking that if there was going to be this pandemic voting showdown, that it would happen in Wisconsin.

And I certainly indict the Wisconsin legislature. There is no reason that the Wisconsin primary could not have been postponed. The governor made an attempt to try to unilaterally move the primary and the Wisconsin State Supreme Court, interpreting Wisconsin law—and they are the last word on Wisconsin law—said that the governor did not have that power. So the primary was going to go forward. The question before the supreme court was about absentee ballots, about moving the date as the district court had done, for when absentee ballots could be received back by the Board of Elections, giving people more time.

There was an absentee ballot backlog because of the pandemic. Ten times more voters sought absentee ballots in Wisconsin than had ever done so before. And so the Board of Elections was backlogged and had not had the chance to mail out a lot of absentee ballots. So the very modest adjustment that the district court made in the case was that absentee ballots could be received up until April 13, which is when the election has to be counted and certified. It’s not as though there was some date between now and the 13th that was particularly important.

That’s the only issue that was before the supreme court. And the supreme court was not even willing to allow that very modest adjustment that he made to the process. And that meant that people who had sought an absentee ballot but had not yet received it now felt, if they wanted to vote, that they had to go out and cast their vote on Election Day. And people who had received the absentee ballot and were holding it could not put it in the mail, because it now had to be received on Election Day. And so they now had to go out and drop off their absentee ballot on Election Day. So it created a perfect storm where it didn’t have to exist. The election was going to go forward. But the many people, the tens of thousands of people who had attempted to vote by absentee ballot now were forced out if they wanted to exercise their right to vote. They had a choice between being disenfranchised, not voting, or risking their health and life in the midst of a deadly pandemic. I don’t know that it gets more stark, really more humiliating for us as a democracy, that that was the choice that we confronted voters with this week.

Dovere: When you think about the history of Wisconsin over the past 10 years, in 2010, Scott Walker, a Republican, was elected and there began to be a move toward a larger and larger Republican majority in the state legislature, but also after that, they did redistricting and gerrymandering that essentially ensured the Republican majorities in the state legislature. And then there were these moves along the way to cut back on how voting was done.

Ifill: Well, what you have described is accurate, but what it masks is that our conversation about partisanship and winners and losers has overtaken any conception of democracy. And it troubles me tremendously because that’s where these conversations end up. And we should remember that we’ve come here fairly recently. Of course, there’s always been partisanship and naked partisanship. But it’s also true that there used to be a space to talk about what were shared democratic ideals. The whole point of the passage of the Voting Rights Act in 1965 and the movement to ensure that southern jurisdictions were not able to prevent African Americans from voting was not only because it was nakedly racist, but it was also because of the recognition that we regard voting as a kind of sacred act of citizenship and that there was largely agreement on that. That was not a matter that was controversial.

Dovere: I guess that’s my question. How does this become partisan, the idea of people being able to vote? Because it does seem like at this point, somewhat reliably, if you look at people who want to expand access to voting, it’s Democrats; and people who are looking to do things to restrict access to voting—or what is often talked about as protecting the vote but that ends up being lower voter turnout in practice—are Republicans. And that’s just the fact of it. And it’s kind of stunning to see it fall down almost 100 percent reliably.

Ifill: You know, it’s really interesting you say that, because it’s so true. And I’ll tell you how this plays out very problematically for the work that I do. The NAACP Legal Defense Fund is a nonpartisan civil-rights organization. We have been engaged in voting-rights litigation for a very long time, since the 1940s when Thurgood Marshall won Smith v. Allwright in 1944, which was a case in which the Supreme Court struck down the practice of the Democratic Party in Texas, who insisted on all-white primaries. The all-white primary in the South was kind of the way that Democrats controlled the South for many decades. We all know that those were the old Democrats. And we know that, beginning in the late 1940s and into the 1950s and certainly solidified by the early 1960s, those who were associated with racism and white supremacy flocked to the Republican Party, fleeing from the efforts to ensure that African Americans were true citizens, in opposition to Brown v. Board of Education, in opposition to the Voting Rights Act and so forth.

So we cannot deny the racial dimensions of what you’ve described as a partisan reality. What becomes difficult is when we begin to talk about this as though it is purely partisan and as though the racial dynamic did not drive it first. And so I end up in conversations even like the one I’m having now, even though I am nonpartisan. I don’t work for the Democrats, nor do I try to advance any particular political party. And in fact, I’m old enough to actually—and I won’t say the age—have been a voting-rights lawyer long enough that some of my first cases were suing Democrats, southern Democratic governors. So this has never been a partisan issue for me. But what happens is that the conversation now rests within this framework of partisanship in which I am compelled to say what I just said, offer the disclaimer that I am nonpartisan and the organization I lead is nonpartisan, because we’ve forgotten that race was the engine that drove the whole thing. And that race remains very central to this issue.

When you ask why, it’s about power. It’s about white supremacy and power. In 2013 and 2014, when I would talk about white supremacy in the context of voter ID laws, people would roll their eyes. It sounded like I was being so dramatic. People understood white supremacy to be the march in Charlottesville. It’s Nazi flags. It’s people with Nazi salutes, and using the N-word, and saying racist things. But white supremacy at its core is the effort by whites to hold on to power no matter what. That’s what massive resistance was about. That’s what southern segregation was about. That’s what the denial of the right to vote throughout the South for black people was about. It was about white supremacy, about this fear of sharing power with black and brown people.

And I guess I want to be very clear that that remains at the heart of much of this. To the extent that that correlates with party, that is a complicating factor that I think makes it very difficult for people sometimes to see why voter suppression is so unconscionable, because people say, “Well, partisan politics and, you know, we’ve always had partisan politics.” But if people really wanted to understand why it’s unconscionable, it’s because it is animated by and emanates from the same motivation that kept the South from allowing black people to vote in the years before the civil-rights movement.

When you watch what happened in Wisconsin, it wasn’t just some accident. It wasn’t a confluence of factors that no one could have imagined. You know, it was exactly what you would expect. We know what these things are. We know how they’re going to affect the African American community, just like voter ID. We know how it’s going to affect the African American community and yet we allow it to go forward in any case. So I think this is a really important watershed moment for us to start having the conversation about what voter suppression really is about, who really benefits when we make it harder to vote. When the president suddenly, out of the blue, disparages mail-in voting, which he has used consistently, what is it about? And if we start the conversation by talking about Republicans and Democrats, then we contribute to losing the very core racial dynamics that lie at the heart of all of this.

Dovere: When you think forward to the next few months, especially with what we saw happen in Wisconsin, voters and election administrators will have to address the coronavirus.

Ifill: The position we have taken is that we should be providing a range and as many means for all voters to access the system as possible. I would never have thought that I would have to say this, but we start from the premise that voting should not require you taking your life into your hands.

So we think there has to be a menu. Sure, there should be open polls to the extent possible. Many of the polls were closed, for example, in Milwaukee County because, as we all know, many of our poll workers are elderly. And they began calling out in droves, saying essentially that they weren’t going to work, and appropriately so, on Election Day, because they feared exposing themselves to the virus.

Dovere: Does what happened here become a blueprint for ways that you would fear other states could use to restrict voting?

Ifill: It’s absolutely, for me, a blueprint of what I cannot allow, what those of us who do this work cannot allow to happen in November. And that means we need more early voting so that you don’t have lines, because you have a longer period of early voting. You do need to have drop-off absentee stations. You do need to expand the time for absentee ballots to be returned to the Board of Elections. We need all of this to deal with the challenges of this pandemic. There are ways to manage this. And I think that’s the menu we’re all sitting with right now and are prepared to lean in to, to ensure that in November we don’t have an election that causes people to risk their lives, but we also have an election that we don’t have to be ashamed of, that everyone who is a citizen who wants to participate can participate on November 3.

Dovere: A lot of your work is in filing paperwork and in the courtroom, but a lot of the overall work around voting rights is, like much activism, rallies and demonstrations. That doesn’t seem like it’s going to be part of this year ahead in anything like the way it would have been otherwise, without fears of a pandemic. How do you go about doing this?

Ifill: That’s absolutely the new normal. What we do is we work to remove barriers and then we try to get the information out to voters about where they can vote, what their rights are, how they can register and so forth. There’s obviously no knocking on doors there. No question, it’s a challenge. The activism, particularly that exists in the African American community, has always been very strongly premised on our ability to come together and to march and to meet together. And we won’t have that tool available to us. But we, like everyone else, will have to adjust. And we have every intention of ensuring that our communities are well informed, well informed with the adequate tools they need to be able to participate fully in the election and in the political process.

Dovere: November was going to be, in most people’s expectations, the highest-turnout election in a long time because of all the interest in the presidential election. It seems like that’s certainly not going to be the case now. It may actually be a low-turnout election when it all comes down to it. And there are going to be questions of who got to vote and how the vote happened. How are we going to have faith no matter who wins?

Ifill: Well, I don’t know that there’s very much we can do except try to put in place processes that give those who are open to listening to facts a sense that there is integrity in the election system. Look, I’m not a conspiracy theorist, but I’m also not for pretending that voter suppression doesn’t exist.

So I think it’s very important that what we do is we work to make the election as legitimate as possible so that people can have confidence in it. And if it is not legitimate, people will not have confidence in it. So it is actually very important for whoever wins, in my view, to be invested in ensuring that the election is legitimate by ensuring that people have access to the ballot, by ensuring that every vote is counted and so forth. That’s how you get legitimacy. And to the extent that there are those who are working to undermine that, they are creating the context in which people cannot have confidence in the election. When I hear Attorney General Barr saying he has skepticism about mail-in voting—based on what? Where does that come from?

These are the seeds that are being sown to try to create a sense of illegitimacy where one does not exist. And it is shameful. It is absolutely a disgrace for the attorney general of the United States, a lawyer of long-standing practice and experience, to throw out those kinds of doubts. He’s a person in a position of tremendous power and leadership. And when he says he’s skeptical, he is making a suggestion to those who are listening to him who can’t be expected to do their own research on it, but who are following his lead … that there is something illegitimate about mail-in voting. It’s appalling

Dovere: How worried are you about where our democracy is headed?

Ifill: Well, this is what I’ve given my life to for 30 years. So my dial is set to worry about our democracy, because that’s what civil-rights work is. It is born of deep concern about our democracy. But you can look at that [Wisconsin] election and what we saw two ways.

One, as I have already expressed, is that it was shameful and a disgrace that we consigned people to have to choose between their health and their right as citizens to participate and vote. No question. But I also am compelled to see the extraordinary, powerful nobility of those people standing—some of them in wheelchairs—staggered and separated from each other as best they could by six feet, for hours on end, determined to participate in the political process. That has to be the power that really fuels us to do the work that we do.