Voting Rights 2016: A Smidgen of Hope

With the recent election, many issues with voting and voting rights have come to the forefront of our democracy once again. What issues are being discussed? The Voting Rights ActState Voter ID LawsPhoto Identification and Felony Disenfranchisement, among others. In this election, people have been most concerned, and polarized, by two issues which are opposite sides of the same coin: voter fraud and voter suppression. Voter fraud is a very small problem in America. Voter impersonation, which voter-ID laws and stricter registration requirements and limits on early voting are meant to address, is exceedingly rare. The measures, however, quite clearly lead to fewer people voting. These two issues are divided across party lines, but when do the measures go too far into limiting citizens right, ability and access to vote?

Let’s look at some history, statistics, and bills to see how we got here and where we are going.

The History

The congressionally-created Election Administration Commission(EAC) is tasked with helping states comply with the Help America Vote Act (HAVA) of 2002. The HAVA created the EAC, appropriated funds for the replacement of outmoded voting equipment and established new minimum administration standards for federal elections (this mandated that any new registrant must provide either a driver’s license number or the last four digits of his or her Social Security number at the time of registration). This law was written and passed as a response to the controversy surrounding the contentious presidential election of 2000 (check out this post for coverage of the Electoral College and popular vote).

The Voting Rights Act, originally passed in 1965, was written to protect the voting rights of minority americans. States really got started introducing new restrictions in 2012, and in response to a challenge the Supreme Court repealed section 4 of the Act in 2013, giving states more flexibility to put restrictions on voting. The Brennan Center for Justice notes there were no states with strict photo ID requirements prior to 2004, and the trend towards more restrictions has more or less exploded since 2012. Legal challenges have been made to many of the new restrictions; some have been overturned and some have been upheld.

In 2016 14 states implemented new voting restrictions in place for the first time in a presidential election: Alabama, Arizona, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia and Wisconsin. The new laws range from strict photo ID requirements, to early voting cutbacks, to registration restrictions. Since 2010, a total of 10 states have implemented more restrictive voter ID laws (six states have strict photo ID requirements), six cut back on early voting time, seven have laws making it harder to register and three made it harder to restore voting rights to people with past criminal convictions.

Incidents of Voter Fraud 

In Indiana, the Indiana Voter Registration Project was raided under suspicions they were intentionally submitting fraudulent applications. It was estimated that 45,000 people were not be able to vote on Nov. 8 because their applications were seized  in this raid. Investigations like this became a focus after Indiana enacted stricter voter ID laws in 2006, which may have played a role in their reduced their election turn out in 2014 midterm elections. Of the 28,000 applications seized, 10 have been found and deemed fraudulent.

An Iowan woman was arrested and booked on a first-degree charge of election misconduct, according to Polk County Jail records, a Class D felony under Iowa state law. The woman cast two ballots, an early-voting ballot at the Polk County Election Office and another at a county satellite voting location, both for Trump.

Incidents of Voter Suppression 

Most legislation people consider suppressive relates to the requirement of showing some form of government ID in order to vote. It is not necessarily a question of whether or not people have a driver’s license, but rather if they can obtain a voter ID. In Wisconsin, the documentation needed to vote is not a social security number or driver’s license, but a completely different form of identification all together. The passage of AB7 in 2011 now requires a person to bring proof of name and date of birth (a certified U.S. birth certificate, valid passport or certificate of naturalization), proof of identity (usually a document with a signature or photo), proof of Wisconsin residency, proof of U.S. citizenship, legal permanent resident status, legal conditional resident status or legal temporary visitor status and a social security number in order to receive this identification. For anyone, getting together all of these documents would be a hassle, especially if you are someone with an easily misspelled name or if you have a busy life, like many Americans.

Other new voting restrictions involve making it more difficult to register to vote and cutting into early voting. North Carolina made it more difficult for people to vote by eliminating the state’s same-day registration and out-of-precinct voting (there were  2,300 cases of voters whose ballots were rejected in 2014). This year, the disenfranchisement of as many as 34,000 transgender voters could have occurred in states with the strictest voter ID laws. A report by the Williams Institute stated, “thirty percent of the voting-eligible transgender population” in these states “have no identification or records that accurately reflect their gender.”

There was a petition sent to the White House asking the Obama administration to look into a case of voter suppression in Arizona in March of 2016. The suppression in this instance consisted of extremely long lines that working Americans could not afford to wait in due to less available polling stations, few (if any) polling stations open in minority populated areas of the county, independent voters being given provisional ballots (that ended up counting due to how voters were registered) and suspicious building evacuations. Any questions with recounts, investigations and other issues surrounding issues with voting are matters that the Department of Justice, state governments or in courts.

Due to early voting hours being cut, this North Carolinian had to wait hours in order to vote:

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In Cincinnati – 4,000 people had to wait in line because Hamilton County OH (with 800,000 population) only had one in-person early voting location

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Public Opinion

According to a poll done in the summer of 2016 by Gallup, this is where Americans fell on these important issues.

Early voting, which gives all voters the chance to cast their ballot prior to Election Day
Favor: 80%
Oppose: 18%

Requiring all voters to provide photo identification at their voting place in order to vote
Favor: 80%
Oppose: 19%

Automatic voter registration, whereby citizens are automatically registered to vote
Favor: 63%
Oppose: 34%

Here are further statistics broken up by where the parties fall on these three main issues

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And finally, here are further statistics broken up by where the Americans fall on these three main issues by Race and Region
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You can see that there is broad agreement among Americans that early voting is a good idea, but also that some kind of ID should be required. There’s even pretty high support for automatic voter registration. However, when you get into the breakdowns, you can see that there are significant differences between Republicans and Democrats. Republicans lean much more towards preventing fraud (less early voting, more voter id, harder registration), and Democrats towards increasing voter participation (more early voting, easier voter requirements, easier registration).

This conflict between Republicans and Democrats, between preventing fraud and increasing participation, came to a head in this election when US district judge in Ohio issued a restraining order against Donald Trump’s campaignhis adviser Roger Stone, and their associates to prevent anyone working on the campaign from harassing and intimidating voters at the polls on election day. The lawsuit was was brought to the court by the Ohio Democratic Party and required Trump’s lawyer justify why Trump and other members of the party had made so many comments about voter fraud, but overturned on November 6th.

The Bills

The Brennan Center for Justice has a good summary of all the new restrictive laws. Here is a map of the states that had Voter ID Laws in 2016

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Here is our list of voter registration laws in 2016 and laws relating to polling places and ballots.

To combat voter fraud, North Carolina proposed and passed HB589 in 2013, a law that cut a week of early voting, eliminated out-of-precinct voting and required voters to show specific types of photo ID — restrictions that election board data demonstrated would disproportionately affect African Americans and other minorities in the state. In July of 2016,  a three-judge federal appeals panel struck down the North Carolina law, calling it “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” This year, North Carolina proposed H240 to allow NC college ID to meet voter ID requirements. Virginia HB32 also adds a valid student photo identification card issued by any institution of higher education located in any other state or territory of the United States to the list of acceptable forms of voter identification. 

There were also bills this year relating to verifying a name change, outlining the penalties for voting and election crimes.

To make voting easier, Massachusetts had two bills, one requiring ID for casting a provisional ballot and another requiring ID to receive a ballot. Florida had two bills with the same aim, to replace an “absentee” ballot with a “vote by mail” ballot. Colorado attempted to make the registration process even easier on all of the citizens by proposing a bill that would allow same day voter registration with a photo ID.

Virginia introduced HB1004 which would require a voter who does not have one of the forms of identification required by law to be allowed to vote provisionally if they consent to allowing their picture to be taken taken by an officer of election. If the electoral board determines that the voter was a qualified voter in the precinct in which they cast the provisional vote and confirms that a photograph of them taken by an officer of election has been received, the voter’s provisional vote is required to be counted.

There were also bills to increase voter education and registration in public schools, clarifying the civil right to vote for individuals convicted of a felony and about the secret-ballot envelope. There were bills ranging from criminalizing voter suppression to relating to the service of a poll watcher in an election to trying to allocate funds to educate our youth and get them to the polls. 

New York decided to take their bills to the 21st century this year. A5534 provides for the inclusion of an e-mail address in the voter registration application and record, where notices and other communication required to be sent to the voter by the state board of elections would be sent by e-mail in addition to postal mail. NY370 addresses new voting technology. A5972 allows students attending a college or university in NY be able to retain his or her parental residence for voting purposes or students could register to vote from his or her residence within the college or university community depending on which community the student regards as the community of “primary concern”. Finally, NY8305 would allow people who consent to voter registration to automatically be registered to vote. They also covered what to do incase of a state of emergency, cause you know, you never know when an earthquake will happen. And the people’s vote matters. 

Conclusion

Of course we don’t want fraud in our elections, but we do want everyone legally entitled to vote to be able to exercise their franchise if they want to. How to strike a balance between those goals is tricky business. But we should not give concerns about fraud and suppression equal weight. According to an article by The Nation comparing the two issues is “a dangerous false equivalence”. I believe the pendulum has swung far too far, and our attempts to remove fraud have resulted in alarming levels of voter suppression. Fraud is rare; we need to be much more concerned about helping people vote. I am encouraged by some of the creative measures the states are working on to increase voter participation, but I’m not sure it’s enough. Ideally we’ll once again strengthen the Voting Rights Act, but in the meantime, hopefully at least some states will continue to take meaningful positive steps.

The NPVIC  – Where the Electoral College and Legislation Meet

In light of the recent election, the debate over whether or not the electoral college is still appropriate for the United States Presidential elections has been reignited once more. This post is an update of a previous post we did in 2014 covering one ongoing reform effort: “National Popular Vote Interstate Compact (NPVIC)”. States that pass legislation to join the NPVIC agree to select their electors for the winner of the national popular vote (rather than the winner of their state). The Compact only takes effect once enough states have joined to account for 270 electoral votes. The National Popular Vote Interstate Compact was started in 2001 as a way to elect the President of the United States by popular vote without requiring an amendment to the United States Constitution, which is incredibly difficult to do.

What is the Electoral College? 

When it comes down to it, Americans don’t vote for the President and Vice President, they vote for presidential electors, known as the electoral college. The Founding Fathers established the electoral college as a compromise between (1) Congress choosing the president or  (2) a popular vote of citizens electing the President. The compromise was struck to mitigate the potential for a single populous state or region’s candidate to dominate the process. Hamilton expressed his concern of the possibility of a tyrant manipulating public opinion and coming to power in the Federalist papers. This is one example of the many ways our Founding Fathers did not put their trust in direct democracy. Also, because the electoral college only meets once every four years, they felt it would not be susceptible to manipulation by outside interests.

Our Constitution outlines how each state is assigned its number of electors: one elector for each member of the Senate (2 from each state), and one elector for each member of the House of Representatives, currently ranging from 1 (WY) to 53 (CA) which are assigned proportionally by population, giving a total of 538. In the election of 2016, the state of Wyoming cast about 210,000 votes meaning each elector represented 70,000 public votes, while in California approximately 9,700,000 votes were cast for 55 votes, thus representing 179,000 votes per electorate. Thus the votes of citizens in less populous states count more. As noted above, this system was originally put in place specifically so that smaller states would still have a say in the governing of our country. Electors are re-allocated every 10 years based on the official census to adjust to shifting populations.

But how do the electors actually elect the president, and are they just a technicality, always voting as expected? Not quite. On the Monday after the second Wednesday in December (for the 2016 election this will be December 19th), electors gather in their respective state capitals to cast their votes via ballots. Electors are expected, but not required, to vote for the candidate which won the majority vote in their state. This “winner-take-all” system holds in all states but two, Nebraska and Maine, where electoral votes are assigned proportionally to the popular vote. For the rest of the states, “winner-takes-all” means whichever candidate won the majority receives all of the electoral votes from that state.

Constitutional scholars believe electors remain constitutionally “free agents” meaning they are able to vote for any candidate who meets the requirements for President and Vice President. Neither the Constitution nor Federal election laws compel electors to vote for their party’s candidate or the candidate that won in their state. However, 29 states have passed laws to require electors to vote as they have been directed by the vote, but scholars believe those requirements would not stand in a court challenge.  There have been very few “faithless” electors throughout history, 157 in total with 71 changed because the original candidate died, three because electors chose to abstain from voting and 82 because of the personal initiative of the elector.

The House of Representatives and Senate meet in joint session on January 6 of the year following the election, at 1:00 pm, to count and certify the electoral votes. The Vice President announces the results after they are official. The candidate with a majority of electoral votes wins. If no candidate receives the majority, then the President is elected by the House of Representatives and the Vice President by the Senate, a process known as “contingent election“.

Historic Issues with the Electoral College

One historical complaint about the Electoral College is that it has acted as a method to suppress the minority vote. How? The founding fathers decided the president would not be chosen by Congress, but rather by “qualified citizens”. The suppression comes from the fact that the definition of “qualified citizen” has changed throughout history, originally meaning meaning white, land-owning men.

Many of us are familiar with the “Three-Fifths Clause” which stated that three of every five black people would count as population when allocating electoral votes, even though no black people actually got to vote. This led to the election of Thomas Jefferson because his opponent (John Adams) was an abolitionist, and the South had a enough electoral votes to defeat him, ironically because their black population qualified them for enough electoral votes to do so.

In 1869, after the Civil War, the “Three-Fifths Clause” was abolished and each person living in a state was counted as a whole person, both man and woman, and black people were guaranteed the right to vote with the 15th Amendment. Women, though, were still denied the right to vote. This era of the electoral college hindered women in their fight to vote because the states had no incentive to allow women to vote; states were already getting “credit” for their female population in the electoral college. This issue was finally put to rest in 1920 with the 19th Amendment which guaranteed women the right to vote nationally.

Current Debate and Possible Reforms 

Today’s debate centers on the fact that is that it is possible to win the popular vote but lose the presidency. This is mostly because of the “winner take all” system, but also partly because smaller state’s citizens votes “count” more as explained above.  A president has won the electoral, but not popular, vote five times in American history: 1824 Andrew Jackson lost to John Quincy Adams, 1876 Samuel Tilden lost to Rutherford B. Hayes, 1888 Grover Cleveland lost to Benjamin Harrison, 2000 Al Gore lost to George Bush and finally, 2016 when Hillary Clinton lost to Donald J Trump, despite having earned over 1.6 million more votes. (Note all of the losing candidates since the establishment of our current parties are Democrats.)

The “winner-take-all” allocation of votes also has huge ramifications on how campaigns are run, incentivizing candidates to visit some states and not others in any given year. It also means some people in “safe states”, like democrats Mississippi and republicans in California (for example), have no voice, since their electors all go the other way. However having the president chosen by popular vote would likely mean candidates would focus much more on cities, where lots of people live and thus votes are more concentrated. Candidates would have little to no incentive to worry about what rural places need or want. This may be more democratic, but it may or may not be a desirable outcome.
The constitution does not lay out how the states are to allocate their electoral votes. It only lays out how many electors each state has. States could divide up their votes proportionally, or by district, or (as the NPVIC suggests) based on who won the popular vote nationally. Each approach shifts the balance in a different way.  Considering the current NPVIC, if states whose electoral votes add up to 270 agree to assign their electors to the winner of the popular vote, they can effectively eliminate the Electoral College. The NPVIC has already passed in states with a combined 165 electoral votes. By persuading a few more big swing states to join, the NPVIC would render the Electoral College redundant. However, all the states to have joined so far are very blue (see note above about democrats having consistently been the ones to win the popular vote but still lose).

The Bills

Here is a map of the current states that have proposed bills to revise some parts of the electoral college and the allocation of votes.
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The two bills that are getting the most national attention is California’s Sen. Barbara Boxer’s bill US SJRes41 and New York’s S5478. SJRes41 calls for an amendment to the Constitution that would end the Electoral College system. If this passed, the amendment would take effect if ratified by three-fourths of the states within seven years after its passage in the U.S. Congress, so at least two election cycles later. Boxer stated, “In my lifetime, I have seen two elections where the winner of the general election did not win the popular vote. The Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately. Every American should be guaranteed that their vote counts.”

S5478 secures New York’s place on the list of states that have joined NPVIC. This will guarantee that every vote in every state will matter in every presidential election. “This action will help ensure every vote is treated equally and places New York at the forefront of the battle for fairer elections and strengthen our democracy. Making the national popular vote a binding one will enable all voices to be heard and encourage candidates to appeal to voters in all states”Governor Cuomo said.

The rest of these bills range from aiming to join the National Popular Vote compact to enact or repeal agreements to elect presidents by national popular vote to repealing national popular vote to creating a National Popular Vote Act to changing provisions relating to presidential electors. The US also had two other bills, HJRes102, the Every Vote Counts Amendment, and HJRes103, which proposes an amendment to the Constitution of the United States to abolish the electoral college and to provide for the direct popular election of the President and Vice President of the United States.

So, what now? 

After reading all of this information, what do you think we should do? Are the American people not competent to directly choose their commander-in-chief in the 21st century? Do the reasons the electoral college was established make sense in modern times? Currently, there are many petitions circulating for the electoral college to break their “pledged” votes to Donald Trump and vote Hillary Clinton for president come December 19th.

This is not the first time the US has seriously considered addressing this issue. Baker v. Carr (1962) established the right of federal courts to review redistricting issues, which had previously been termed “political questions” outside the court’s jurisdiction. The Court’s willingness to change the allocation of political representation of urban vs. rural towns paved the way for the “one man, one vote”. Check out this podcast (The Political Thicket) for a more in-depth look at the story and the decision that allowed the Supreme Court to influence the way elections are carried out.

Even if the NPVIC gets enough votes to be enacted, there is some question about whether it would be constitutional without Congressional approval. However, some argue the Supreme Court decision Virginia v. Tennessee (1893) creates a precedent for states entering into binding compacts with each other without Congressional approval.

I do not know the answer. What I do know is the disappointment that comes from voting for and believing in a candidate that won over the majority of the American people but who lost to the other candidate because of a potentially outdated process.  I am not sure the electoral college still has a place in modern America, at least in its current form. I do see that the issue is complicated and any change would create a seismic shift in how our politics work. It’s hard to predict if that change would be for the better. Let me know your thoughts in the comments below.