Why this election calls into question whether America is a democracy

America has long held itself up as the world’s leading democracy, but it has an equally long history of denying people the right to vote.

To understand how voter suppression is shaping the 2020 election, just look at Texas. While many states do not require voters to have a reason to vote by mail, Texas only allows voters to do so if they are 65 or older or meet other conditions. The state does not allow people to register to vote online.

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Even with a flood of Covid cases, Texas has successfully fought tooth and nail in federal and state courts to uphold those restrictions. Last month, Texas’s governor, Greg Abbott, a Republican, abruptly issued an order that limited each county in the state to offer one ballot drop box. The move meant that Democratic-friendly Harris county, which stretches more than 2,000 miles and is home to 2.4 million registered voters, could only offer one place for voters to return their ballots. The state of Rhode Island, which is smaller than Harris county, will have more drop-off locations this year.

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The battle playing across America is in some ways a continuation of a centuries-long fight over access to the franchise. African Americans were formally denied the right to vote at the nation’s founding, and even when granted access in the 19th century, states responded by implementing devices such as poll taxes, literacy tests and felon disenfranchisement laws designed to keep African Americans from the polls.

The 1965 Voting Rights Act, a crown jewel of the civil rights movement, blunted many of these racist tools, in part by requiring places with a history of voting discrimination, like Texas, to get voting changes pre-cleared before they went into effect. But in 2013, the US supreme court gutted that provision, saying it was no longer necessary. States, freed from federal oversight, unleashed a wave of new voting restrictions, including new voter ID laws and efforts to close polling places.

“The forces that were fine with poll taxes and literacy tests are the same kinds of forces that are equally comfortable in the 21st century with ‘targeting African Americans with almost surgical precision’ in voter IDs and requiring extra hurdles to cast an absentee ballot in the midst of a global pandemic,” said Carol Anderson, a professor at Emory University in Atlanta who has written extensively about voter suppression, in an email.

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Underneath it all, many see a cynical attempt by the Republican party to try to preserve power while making it deliberately harder for people less likely to support them – groups like minorities, young people and the poor – to vote. In many places, Republicans have been able to get away with this because of an unprecedented effort in 2010 and 2011 to draw electoral districts that cemented their control of state legislatures, which shape election laws in the US. This effort succeeded across the country, including in key states such as Pennsylvania, Michigan and Wisconsin.

The pandemic has exposed how deeply entrenched this strategy is in the Republican party. Even as Americans face an unprecedented health risk, people have waited in hours-long lines across the country to cast their ballots in person. Republicans in several states have fought efforts to make it easier to vote by mail, like eliminating requirements that voters have to have an excuse to vote by mail or that they get a witness for their ballot. They have also fought efforts to automatically mail absentee ballot applications to voters.

Many states require voters to return their ballots to election officials by election day to have them counted. After widespread mail delays earlier this summer, many local election officials encouraged voters to return their absentee ballots in person to physically secure drop boxes. But Republicans in Pennsylvania, Ohio, Florida and Texas have all moved to try to limit their use, making it unnecessarily harder for voters to return their ballots.

“What has been troubling to me this year, as it relates to election administration, is that commonsense, practical services for voters have been politicized and weaponized as possible partisan activities,” Tammy Patrick, a senior adviser at the Democracy Fund who works closely with election administrators across the US, said in an email. “Election officials at the state and local level, in red/blue/purple states, have advocated offering services like this to all voters in a pandemic. Some were able to do so, others were prevented from serving their voters well.”

Concerned about mail delays, Democrats and voting rights groups sued in courts across the country, asking election officials to count ballots as long as they are postmarked by election day and arrive in the days after. While the Pennsylvania supreme court, over the loud objection of Republicans, ordered a three-day extension, courts have upheld the election day deadline in Michigan and Wisconsin, two key states that will probably shape the outcome of the 2020 race. Those decisions mean that thousands of ballots will probably be rejected simply because they arrive late, regardless of when the voter puts them in the mail (Trump carried Michigan in 2016 by about 10,000 votes and Wisconsin by just under 23,000).

For all of the Republican attacks on the right to vote, their most powerful ally has been the United States supreme court as well as the lower federal appeals courts to which Trump has appointed an unprecedented number of judges. The supreme court has taken a brazenly anti-voter stance, refusing to ease the ballot receipt deadline in Wisconsin, witness requirements in South Carolina or even permit counties in Alabama to offer curbside voting. The supreme court’s conservative majority has simply said that federal courts shouldn’t interfere with voting rules on the eve of an election and shouldn’t second-guess state lawmakers, who have the constitutional authority to set election rules.

The supreme court also refused to block a Republican-written Florida law that required people with felony convictions to pay financial debts before they can vote again. Writing in dissent, Justice Sonia Sotomayor said the move would block people from voting “simply because they are poor”. An estimated 774,000 people in Florida, one of the closest swing states in the country, can’t vote because they owe money.

The supreme court’s actions are all the more alarming because Donald Trump is unlikely to concede the election (he has falsely said the election is “rigged” and will be stolen from him). With the confirmation of Justice Amy Coney Barrett, Trump now has a firm 6-3 majority on the court and there’s little question he will try to use the federal courts to try to overcome a close margin in the race if Trump is behind. There are expected to be legal fights to try to get ballots disqualified on technicalities. While experts caution there is a long road before the supreme court would be asked to decide an election, the court’s swath of anti-voter rulings do not bode well.

I do think the president is looking to the court to expect a certain outcome, but I don’t think that outcome is guaranteed

Franita Tolson

“The supreme court has an outsized role because it has become politicized. I do think the president is looking to the court to expect a certain outcome, but I don’t think that outcome is guaranteed,” said Franita Tolson, a constitutional law professor at the University of Southern California.

Despite all of this, there’s some evidence Americans are fighting back. There’s been a tidal wave of turnout in the weeks leading up to the election. A staggering 73 million people have already voted early, far more than cast early ballots in 2016, according to data collected by Michael McDonald, a political science professor at the University of Florida. In Texas, a state with a history of abysmal voter turnout, the youth vote is surging and the state is fast approaching the 2016 total turnout. Experts expect the highest overall turnout in a presidential race since 1908.

After the election, Republicans are likely to point to these numbers as evidence that claims of voter suppression are exaggerated. But that’s not true – even if we have record turnout this year, we will never know the number of people who were deterred from voting because they didn’t want to risk their health or get a witness or have proper ID.

Instead, America is seeing a flood of Americans continuing to chip away at the infrastructure of voter suppression that is supporting Republican power. The structure is creaking under new weight – America is getting closer to its democratic promise.