This presidential primary season has exposed serious fault lines in our election system. One has been known for years. The voting rights of African Americans and Latinos continue to be compromised.
Another has become the focus of widespread attention by the media and by ordinary Americans for the first time. There is a vast block of non-aligned voters who are systematically excluded from partisan primaries, where the decisions that effectively determine who will take office are often made. Independents have militantly protested their exclusion from a presidential nominating process organized around party primaries and caucuses.
A look at the recent Arizona and New York presidential primaries helps us understand the interplay between these two voting rights issues.
The Arizona presidential preference primary took place on March 22. In Maricopa County, the state's largest county and the home of some 1.6 million persons of color, the number of polling places was reduced from 200 to 60 by the county's Chief Election Officer, Helen Purcell [R]. As a result, there were long lines as voters waited - in some cases 4-5 hours - to cast their votes. And, of course, many people never got to vote at all, as there was inadequate notice of the new locations.
The attempts of election officials to justify this action have been unconvincing.
Lawsuits have been brought and complaints filed with the Department of Justice by traditional civil rights forces, joined by the Clinton and Sanders campaigns. But the fact is that had Section 5 of the Voting Rights Act not been gutted by the Supreme Court (Shelby County v. Holder, 133 S. Ct. 2612 (2013)), the polling sites could not have been closed without the permission of the Department of Justice, which would surely have objected.
The election day debacle came on the heels of an intense fight between Arizona's unaffiliated voters and the major political parties. The independents demanded that the parties open their primaries, and the parties said they did not have the power to do so. This legal issue was not resolved, although the lawyer for IndependentVoting.org cited Supreme Court precedent in support of the independents' position. 30,848 persons wrote or emailed the chairs of the parties, and some 20 letters to the editor were published in protest. Statewide media coverage of their exclusion followed a press conference held by independents on the eve of the deadline for voters to re-register into a party in order to vote.
Of the State's 1.2 million independent voters, only 40,000 re-registered. Thousands of others, however, went to the polls. This exacerbated the chaos. Election inspectors, reluctant to tell these voters they were barred, gave them provisional ballots -- a time consuming process that made the waiting time to vote even longer. Some election officials attempted to blame the independents to cover over the impact of closing more than two-thirds of the polling places.
In New York, the April 19 primary was marred by the allegedly improper purging of some 120,000 voters from the rolls in Brooklyn (Kings County), the largest county in the state. Kings County was covered by Section 5 of the Voting Rights Act, and the purge might not have taken place had the pre-clearance requirement still been in effect. It remains unclear whether the purge was the result of incompetence, or an effort to favor a particular candidate or party. In New York and in many other states, elections are run by local boards, the commissioners and employees of which are chosen by party bosses from among the party faithful.
Furthermore, 27% (3.2 million) of the State's registered voters were not permitted to vote. This came as no surprise to the activists and lawyers who speak for independent voters. For the first time, however, it received significant media coverage, and representatives of good-government groups such as Susan Lerner of Common Cause and Barbara Bartoletti of the League of Women Voters spoke out against the closed primary for the first time. So did insurgent candidate Bernie Sanders, who has received seventy percent of the votes of independents in states with open primaries. Sanders claimed, plausibly, that he would have won if the primary had been open.
Voting rights violations continue to occur, and not just in Arizona and New York, because our partisan political culture allows them. Most African Americans and other persons of color traditionally vote Democrat, and the Democratic Party will respond aggressively to efforts to repress their votes. The Republican Party, which benefits from such efforts, claims it is protecting against voter fraud, or trying to save the taxpayers money. The result is that voting rights have become a partisan issue, making it difficult to achieve the consensus necessary to protect them.
In the case of independents, neither party will take a stand to remove barriers to their participation across the board, since neither is sure it will benefit. Thus, independents and people of color, the two groups most impacted by restrictions on access to the polls, have had difficulty seeing that their interests are the same. However, more and more young people, of every race and ethnicity, have chosen not to affiliate with a political party. In New York state, 1 in every 8 registered African Americans and 1 in every 3 registered millennials are unaffiliated. In Arizona, 41% of Hispanic voters are registered as independent.
Independents and people of color, together with other fair-minded Americans concerned about our democracy and its future, constitute the necessary majority to force a change in how we understand voting rights, and take the necessary steps to protect and advance them. It is unfair, and un-American, to be taxed while being denied the right to participate fully in the process to elect our representatives. The 1965 Voting Rights Act reformed our democracy in unprecedented ways. Without it, we are seeing various schemes to disenfranchise voters succeed.
Jockeying for positions on the platform committee of the Democratic Convention has already begun. At this point, the focus is on traditional policy debates - the minimum wage, financial regulation, criminal justice, etc. It's time for both parties to make an unequivocal statement in their platforms in support of allowing all citizens to vote in primary elections and to aggressively work towards Congress passing an amended Voting Rights Act to reinstate (and extend to non-southern states) the pre-clearance provisions of the Voting Rights Act. We cannot stand silent, while our democracy is assaulted and our voting rights are stripped away.
Michael A. Hardy is General Counsel & Executive Vice President to National Action Network, Inc. Harry Kresky is general counsel to IndependentVoting.org.