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  • Writer's pictureOren Levin-Waldman

Bad Polling Can Also be a Form of Voter Suppression

We have heard a lot in recent years about voter suppression. Voter ID laws, for example, are an effort to suppress the vote. Because poor people may not have driver’s licenses, especially minorities, a requirement to acquire a picture ID only erects an obstacle to voting, thereby suppressing the vote. Even if states take steps to provide non-drivers with a picture ID, opponents of these laws still allege voter suppression.

This view of voter suppression, however, is really too narrow. Each political party no doubt would like it if voters registered with the opposing party were to stay home. Indeed, Republicans have long benefitted when more of their party members show up. Weather events have also been known to keep people from the polls. Do we call that voter suppression? Do we even suggest that a victorious party colluded with meteorologists to keep members of the other party from voting?

Despite Joe Biden being the presumptive president-elect, the results have yet to be officially certified. And yet, an argument could be made that there was indeed voter suppression, not from the right, as Democrats and those on the left typically allege, but from the left. It was during this election that we had any number of polls projecting a Biden victory by wide margins, and for weeks leading up to the election this was indeed the narrative that the news media wanted to run with.

Anyone listening to the news might rightfully have concluded that given the polls there was no way that Trump could possibly win, and some Trump voters may have concluded that their votes were an exercise in futility. This, then, raises the obvious question of whether polls, especially when they feed into a particular narrative that the media is trying to push, don’t also effectively suppress the vote.

Perhaps it is worth recalling that those in favor of mail-in ballots were accusing those opposed to them of voter suppression. In fact, those who seek to make voting easier accuse anybody who might be concerned with voter fraud of suppression. But this displays a fundamental ignorance of American history.

It should be stated up front that the U.S. Constitution does not really afford us rights to vote. In setting out tenure in office for members of the House and establishing a date for elections on the first Tuesday following the first Monday in November, it does assume that some or many will vote. Rather the matter of voting is really left to the states. All the Constitution says, in various amendments following the American Civil War, is that one’s right to vote cannot be abridged on the basis of race, gender, and being over the age of 18. In other words, if states grant rights to vote, those rights cannot be abridged for those reasons.

That is not the same as saying that states are obligated to grant their citizens the right to vote, although it would now be very difficult for them not to given the language of the Fourteenth Amendment’s Equal Protection Clause. It should also be recalled that what we refer to as general franchise was a gradual process. Originally, only those who were white males who owned property could vote.

The property qualification reflected a view that only citizens with a stake in society should be able to vote. Thomas Jefferson believed that only property owners had a stake in society and therefore could act as responsible citizens. And yet, as this criterion was ultimately done away with, the idea that voters should have to scale some obstacles began to find expression in registration requirements. If voting was that important to them, then they should be willing to go through the hassle of registering even a month before an election. The point is that the Framers, and even those who advocated universal suffrage, were not supportive of the idea that voting should be so easy that anybody could come in and vote.

Still, it is understandable why voter ID laws might be viewed as a form of suppression, especially minority suppression. Prior to the 1965 Voting Rights Act, many southern states erected obstacles that made it almost impossible for black to vote. The Voting Rights Act created a list of states that would have to receive prior approval from the U.S. Justice department before making any changes to their election laws, including registration. The U.S. Supreme Court has since held that times have changed that a picture ID law is not necessarily a barrier to voting so long as states take steps to ensure that everybody can obtain such an ID.

Now we appear to have voter suppression in yet another form: the use of polling data to potentially affect voter behavior. Many years ago before cable stations, it wasn’t uncommon for the news networks to call elections as soon as the polls closed. That is, the networks in New York would call the elections, and sometimes even project the winners in states like California where polls were still opened because of the three hour time difference. In many cases, those in the western states who had yet to vote simply gave up and opted not to. For them the election was already over, and this too was effectively a form of voter suppression.

As the electoral returns from 2020 were so close, it became clear that the pollsters in many case got it wrong. The wide margins that Biden was projected to win by simply did not materialize. What went wrong will surely be the topic of conferences and papers for years to come, but suffice it to say that the techniques developed for phone surveys several decades ago no longer work in an age of mass cell phone use and caller ID.

Media organizations who clearly were biased against Trump, and were touting opinion polls that proved to be wrong, can be said to have engaged in voter suppression. Although they will say they merely intended to provide viewers with the most up to date information in an era where elections are seen through the prism of horse races, their actions nonetheless had the effect of suppressing votes.

To the extent that this is a form of voter suppression, it also undermines the democratic process. Too often public opinion polls are relied upon by candidates to form their positions on issues. And yet, one might think that candidates have it exactly backwards. Candidates need to learn about districts and tailor their campaign messages to them.

All too often, they manipulate public opinion through advertisements, and quite considerable advertising budgets at that. Were they to instead do serious demographic analyses of the districts and communities they are campaigning for, they would be in a better position to tailor their messages to their communities. Then they could commission polls based on that, because right now manipulating public opinion through campaign ads in response to polling only undermines democracy. Of course undermining democracy may be acceptable if your team wins. But to not recognize that there are other forms of voter suppression undermining the democratic is nothing less than hypocrisy.

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