The GOP has a plan to win the 2018 elections. Here’s how to stop it.

Image by Charlie Potter

Under fair and just conditions, the Interstate Crosscheck System would not exist.

This system, according to Health of State Democracies, “is a database used by officials…to identify voters potentially registered to vote in more than one state. States need a mechanism to maintain accurate voter rolls, but the states participating in the Interstate Crosscheck system risk purging legally registered voters — with a significant oversampling from communities of color — from the voting lists.”

It was designed and implemented by Kris Kobach, a well-known white nationalist and the current Secretary of State of Kansas, and used to identify millions of black and brown voters specifically to deprive them of their Constitutional right to vote.

By the 2010 election season 13 states had signed on to the minority voter purge system. This was enough to secure the GOP the majority in the House of Representatives. By 2014, 27 states had signed on to Crosscheck. That year, the GOP took Congress. In 2016, 30 states were participating in the Interstate Crosscheck System. 7.2 million voters had been identified for purging and approximately 1.1 million voters were successfully cleansed from the voter registration lists. And in 2016, the GOP kept control of Congress and despite losing the popular vote by over 3 million ballots, Donald Trump beat out Hillary Clinton in the run for the White House.

We clearly do not live under fair and just conditions.

To add complexity, what we do live in a context of constant change. The solutions provided to stop black and brown voters from being deprived of their right to vote are dramatically different now than when they were just over 100 days ago. The opportunities presented in this article may be accessible today and unattainable after a few more Trump ordered adjustments to the legal system.

For example, up until inauguration day in January of 2017, the Democratic Party still controlled the White House and the Department of Justice. Well aware of the existence of the Interstate Crosscheck System and the fact that it had been actively used to purge minority voters in key battleground states just prior to the 2016 elections, the Democrats had the option of filing charges against those responsible for violations of 18 USC 241, 18 USC 242, and Section 11 of the Voting Rights Act of 1965. Penalties could have included up to 10 years in prison for those found guilty.

Yet, while Attorney General Loretta Lynch had the responsibility, authority, and opportunity to enforce and restore the voting rights of those criminally deprived through Crosscheck — inexplicably, no such action was taken. Further, the Democratic Party adopted the strange position that it was voter inaction, not voter purging and suppression, that prevented minority voters from reaching the polling booths.

Consequently, rather than doing the work necessary to restore the voting rights of the millions of minority voters that have been intentionally suppressed, purged, and otherwise cleansed from the voting population, they have chosen to try to recruit new voters through door knocking and media campaigns.

So far, this strategy has failed every single time. Predictably.

Nonetheless, voting rights must be restored and Crosscheck must be dismantled. No longer is a Democrat in the White House, though, and no longer is a Democrat the Attorney General. The strategic context has changed.

Currently, purged and suppressed voters must face Donald Trump and Attorney General Jeff Sessions.

There should be no expectation that federal voting rights for minorities will be upheld by the current Administration or Attorney General Jeff Sessions. Trump ambitiously touts the rhetoric of voter fraud that is used as a front to implement voter purging systems. One of his key advisors is the man that designed and diffused the Interstate Crosscheck System. And questioning anything to do with the 2016 election is something he has proven incapable of and\or unwilling to do.

Jeff Sessions is known for his historic abuses of Civil Rights as a Senator from Alabama. He has already announced it would begin pulling away enforcement of minority voting rights. And his record shows that he openly stands in direct opposition to the efforts of Civil Rights groups such as the NAACP and was the first sitting senator to endorse Donald Trump. There will be no remedy found through the Department of Justice.

Fortunately, the system provides alternative avenues to the enforcement of federal rights. These avenues include the bringing cases in front of the federal district and circuit court systems.

We have already seen how effective these courts can be in providing a counter to the attacks of white nationalism and the Trump Administration. For example, it was the lower federal courts that stopped Trump’s Muslim Ban. Twice.

The first time, Attorney General of Washington State Bob Ferguson filed suit in a US District Court asking it to invalidate Trump’s Executive Order to implement the Muslim Ban. This ruling was upheld in the 9th Circuit Court of Appeals. The second time, district court judges in Hawaii and Maryland struck down Trump’s second attempt at the Muslim Ban.

Similar efforts to enforce federal law through the district and circuit courts can be used to enforce minority voting rights and dismantle the Interstate Crosscheck System before the 2018 midterm elections.

While coordinated attempts to dismantle Crosscheck through the federal district and circuit court systems have not been made yet, there have been some well-orchestrated efforts to counter voter purging in a few locations.

In September of 2016, for example, the 6th Circuit Court of Appeals reversed a lower court’s ruling and declared that voter purging in Ohio violated federal law. This ruling came approximately 6 weeks before the November election leaving little time to enforce it, but voter purging as applied by the state of Ohio was ruled as in violation of the National Voter Registration Act. This win was secured by the ACLU of Ohio.

It is worth noting that the 6th Circuit Court of Appeals includes 4 states: Michigan, Ohio, Kentucky and Tennessee. All of these states are part of the Interstate Crosscheck System. All of these states can be challenged in federal court for applying it.

Just days before the 2016 election, the NAACP in North Carolina filed an emergency petition to the federal courts on behalf of thousands of voters that had been illegally removed from voter registration lists. The court ruled that North Carolina’s use of voter purging was illegal according to the Voter Registration Act, and that the voting rights of those cleaned from the registration rolls must be restored.

In 2014, the 11th Circuit Court of Appeals found that the voter purge that occurred during the 2012 elections in Florida was also in violation of the National Voter Registration Act. Similar to the case against purging in Ohio, the federal appeals court overturned the ruling of a lower district court. This effort was supported in large part by the League of Women Voters in Florida. According to the Tampa Bay Times, “Other groups challenging the purge included the Florida Immigrant Coalition, National Congress for Puerto Rican Rights and the Service Employees International Union. SEIU’s testimony that it had to divert resources from voter registration to fighting the purge was ‘a concrete and demonstrable injury,’ the judges wrote.”

That same year, Florida ended its participation in the Interstate Crosscheck System.

The 11th Circuit presides over Florida, Georgia and Alabama. Georgia is the only remaining Crosscheck state in the 11th Circuit. It can and should also be challenged in federal court for purging minorities from its voter registration rolls prior to the 2016 election.

There is one problem though.

While all of these cases successfully found that the state’s application of the Interstate Crosscheck System was in violation of the National Voter Registration Act, it is unlikely that this tactic will be successful in restoring voting rights nationwide. The federal courts ruled that the purges were in violation of the NVRA because they occurred too close to the election. The law forbids such actions within 90 days of election day. Each state purged within that 90-day window.

While enforcing the NVRA might successfully restore voting rights temporarily, there is no guarantee that the GOP will not counter by making sure to apply Crosscheck 91 days before the next election. In fact, just such a counter is highly likely.

Fortunately, there is another piece of federal legislation that can be used to prevent minority voters from being deprived of their Constitutional right to vote: The Voting Rights Act of 1965.

While Section 4 of this act took a serious hit in 2013 as a result of the Supreme Court case of Shelby County vs. Holder, Section 11 remains intact reading:

“No person acting under color of law shall fail or refuse Prohibitions to permit any person to vote who is entitled to vote under any provision of this Act or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.”

This section of the Voting Rights Act can and should be used to restore minority voting rights and dismantle the Interstate Crosscheck System through the federal district and circuit courts. In fact, while there are no cases to date in white Crosscheck is submitted to the federal court as a violation of the VRA — there is precedent to suggest that the lower federal courts are willing to enforce the VRA and block certain forms of raced based voter suppression.

In 2011, for example, a federal district court in Texas ruled that redistricting efforts in were in violation of the Voting Rights Act and the 14th Amendment because they unfairly targeted Latino voters in attempt to break up their local voting bloc. In 2016 the 5th Circuit Court of appeals ruled that voter ID laws passed in Texas in 2011 were in violation of the Voting Rights Act. In 2016, a federal court of appeals in North Carolina also struck down legislation that was passed to prevent black voters from accessing the polls under the Voting Rights Act. Wisconsin also suffered losses in federal court that last year for violations of the Voting Rights Act.

There is every indication that the circuit and district courts would be willing to enforce the rights the Department of Justice refuses to. While there is no indication that the Democratic party and its lawyers will take on this task themselves, there are numerous community organizations and legal teams that have the skills necessary to challenge Crosscheck in federal court.

In order to restore the minority vote, SIIP argues that the tools, resources, media attention and social support necessary to bring cases into the federal district and circuit court system must be directed towards legal organizations with experience representing the needs of targeted minority communities in court and fighting for their Civil Rights.

This aggressive flow of funding, resources and support must be utilized by community-rooted legal organizations to organize plaintiffs and aggressively challenge Crosscheck in the lower federal courts using the Voting Rights Act of 1965. These efforts should directly serve the goals of dismantling the Interstate Crosscheck System, restoring minority voting rights and setting the foundations for deprivation of rights cases when the Department of Justice is restored.

These courtroom battles being fought by legal organizations on the front lines should also be forcefully supported by #TheResistance.

The Muslim Ban was in large part successful not only because of the legal battle that was fought in the district and circuit courts, but because of the direct action and civil disobedience that was mobilized in direct response to the first Muslim Ban. As SIIP reported,

“Thousands of people across the country gathered to shut down airports and provide free legal services to those affected by the ban. Airports in Seattle, New York, San Francisco, Chicago and Virginia are just some of the locations that activists and lawyers flooded and, in many cases, shut down the airport’s functions. The federal legality of the Executive Order was called into question and Washington state took the Trump Administration to court.”

This use of mass assembly (not to be confused by the marching tactics used during the Women’s March, the Tax March and the Science March) coupled with clear demands for the enforcement of federal policy is the strategic formula that ensured that the efforts to pass the Muslim Ban would be effectively countered. It was also the strategy that was used to successfully secure minority rights during the Civil Rights movement.

It will take a combination of people power and legislative authority to restore minority voting rights, dismantle the Interstate Crosscheck System and ensure the GOP doesn’t stand a chance to holding on to Congress in the 2018 midterm elections. Unless we do the work needed to enforce the Voting Rights Act, there is no indication that the GOP will lose control of all three branches of government. There is also no indication that if the nation survives through the 2020 election, Trump will be voted out of his illegally stolen seat in the White House.

If we band together in support of minority rights and in defiance of white power, though, we can begin the process of restoring the minority vote and destroying the GOP’s chance of ever taking control of Congress or the White House again.

To learn more about the history of Crosscheck, click here.

SIIP is dedicated to designing strategies to counter political obstacles faced by the most brutally targeted communities in the United States