As early voting numbers roll in, one trend is clear. The percentage of the black vote seems to be down compared with the percentages in 2008 and 2012, and Democrats are nervous. In Florida, for example, the black vote is down from 15 percent in 2008 to 12 percent in 2016. In North Carolina, the share of the black vote has dipped from 28 percent to 23 percent. Georgia has seen a similar five-point drop in its early vote.
The explanation seems blindingly obvious. In 2008 and 2012, black voters were electing (and reelecting) the first black president. In 2016, they being asked to turn out in similar numbers for a white woman who is one of the least-trusted and least-liked people in all of American politics. Oh, and she has a tenth of the charisma of her husband. Moreover, the “Stop Trump” imperative is blunted by mountains of hysterical rhetoric directed in previous campaigns at such noted bigots as George W. Bush and Mitt Romney. When it comes to claims of Republican racism, black voters have heard it all before, many times.
The NAACP has sued North Carolina, alleging that various North Carolina officials are targeting black voters by purging thousands of voter registrations after mail sent to the voter’s listed address was returned as undeliverable. The president of the North Carolina NAACP, with characteristic election-year understatement, proclaimed, “This is our Selma” — hearkening back to the days of fire hoses, attack dogs, and grotesquely racist Democratic politicians.
So what’s really going on? Are Republican state officials really, truly targeting black voters in a systematic effort to restrict turnout and swing elections to the GOP? The heart of the claim rests on something called “disparate impact analysis.” The analysis works like this: Because people so rarely announce actual racist intent any more, the way to determine whether racism is at work in the system is to examine outcomes. Thus, if a policy change disproportionately and negatively impacts African Americans, then it is suspect.
We see this analysis all the time. If school teachers disproportionately discipline black school children, then that’s treated as evidence of racism. If tests for various civil-service positions yield disproportionate black failures, then that’s evidence of a problem with the test. If police officers stop and frisk a disproportionate number of black citizens, then that’s proof the police are racist. And, similarly, if a legislature enacts election reform that allegedly causes inconvenience for a disproportionate number of black voters, then that’s proof of voter suppression.
As a legal test, it’s an affront to law and logic. The Constitution grants citizens “equal protection,” not equal outcomes, and there are myriad cultural, historical, and political reasons that disparate impacts occur. If black men commit crimes at rates far exceeding whites, is it truly proof of racism if police targeting high-crime neighborhoods disproportionately stop and frisk men in those neighborhoods?
Moreover, disparate impacts that benefit African Americans are not only deemed legally permissible but often morally necessary. Indeed, when it comes to providing benefits to black citizens, the state can and does abandon color blindness and grants specific advantages to people of color (though not to Asian Americans) — think affirmative action in higher education, or minority set-asides in government contracting. African-American politicians have long argued for and benefited from racial gerrymandering, drawing voting districts to virtually guarantee greater African-American representation in Congress and state legislatures.
When it comes to voting, states have implemented a number of color-blind reforms — including, most notably, early voting — from which black Americans have disproportionately benefited. In other words, a greater percentage of black voters than white voters freely chose to vote early, and Democratic strategists intentionally targeted black voters for early voting. This doesn’t mean that early voting was biased against whites. Nor does it mean that early voting was biased in favor of blacks. People made choices.
Now, in the logic of the Left, disparate impact works as a one-way ratchet. Any policy that disproportionately benefits black Americans simply can’t be undone. Otherwise, it’s “disenfranchisement.” Otherwise, it’s “voter suppression.” That’s why — with a straight face — they can cry “Jim Crow” when a state tries to restrict early voting, yet remain entirely silent when blue states such as New York and Pennsylvania don’t have early voting at all.
It’s hard to claim a ‘crisis’ when more people are voting.
One can certainly imagine voter “reforms” that are racist, even if seemingly color blind. For example, if a state limits early-voting hours and locations, and clusters the locations in white neighborhoods, then it would be tough to justify the action as anything other than intentional targeting and favor-granting to preferred constituencies. Or if a state enacts a policy requiring a review and purge of allegedly outdated registrations, and then conducts that review only or primarily in black voting districts, evidence of racial discrimination would be overwhelming. That kind of targeting should be ruthlessly litigated.
So what is the truth of the matter? As with Republican claims of mass voter fraud, Democrat claims of mass voter suppression do begin with a kernel of truth. Voter fraud does exist — but not at the scale the conspiracy theorists claim. Similarly, some GOP officials do seem to intentionally craft policies with the disparate impact in the front of their minds. Just as when they gerrymander (and both parties enthusiastically gerrymander), they craft voting reforms that they believe will benefit their party more than the opposition. If Democrats vote early, and black Americans are mainly Democrats, then restricting early voting will disproportionately affect black Americans. But is that racist or merely partisan? If Black voters were reliably Republican, would GOP legislatures behave the same way?
Then there’s the question of the actual, real-world effect. Even though black Americans disproportionately vote early, it’s far from clear that early voting boosts overall turnout. And what about voter-ID laws? Evidence shows black turnout was higher than white turnout in many states that require voter ID. Even in this election — when pundits are claiming a “crisis” — we find no evidence of racist suppression of voters. In some states, for example, even though the share of the black vote is down, the overall black vote is up as part of the general increase in early voting. It’s hard to claim a “crisis” when more people are voting.The political battle over voter suppression and voter fraud is inversely related to its real-world impact. Just as it’s nearly impossible to rig a national election through voter fraud, it’s just as difficult to rig a modern election through voter suppression. That does not mean that there are individual races where voter fraud (or voter suppression) might matter, and both ballot access and ballot integrity are vital to the health of our republic. But we can stop hyperventilating. The election isn’t rigged. This isn’t Selma. In six days, the losing candidate will richly deserve his or her defeat, and the only person to blame will be the one looking back in the mirror.
— David French is a staff writer for National Review and an attorney.