VOTING RIGHTS ARE UP FROM GRABS. STATES WILL MAKE THE DIFFERENCE

Post 4: April 3, 2023

America has always had an uneasy relationship with “the vote.” We understand that voting is the vehicle by which we ensure accountability and the consent of the governed, the very essence of a Democratic Republic. From our founding, however, Americans have struggled about what this right means and to whom it should apply. 

Voting rights have undergone both restrictions and expansions, depending on who controls the levers of power.  Our history, explains scholars like Michael Waldman, has involved constant battles over the franchise, with some periods-such as the Jim Crow era- witnessing retreat and retrenchment, and others such as Reconstruction, the Progressive Era, the Women’s Suffrage struggle, the Civil Rights Movement showing positive movement.

Our struggles continue today, but after the U.S. Supreme Court decisions in Shelby County v. Holder and Rucho v. Common Cause, and failure of the Congress to pass the John R. Lewis Voting Rights Advancement Act, the battleground has largely moved to the states.  The result has been further national division, as some states use their power to make voting more difficult while others seek to protect and expand the franchise. These trends will only exacerbate the fracturing of the nation. 

Since our founding, fissures existed between leaders such as Benjamin Franklin, who argued that the franchise should be granted to those who owned no property as well as those who did, and landowners in the south and north, who opposed such egalitarian measures. 

Franklin lost that battle in the drafting of the U.S. Constitution, which did not –and still does not—include a clearly defined right to vote.  In contrast to our national charter, some states, including Franklin’s own Pennsylvania, made voting an explicit right in their state constitutions, and we have recently seen such language become the rationale for state supreme court decisions overturning voter suppression measures and hyper partisan redistricting. 

Democracy cannot survive without the vote.  This means both protecting the right to exercise the franchise and enacting procedures to encourage participation in elections.  Both are largely functions of states and the legislative process. And while few argue that Americans should not have the right to vote, recent decisions made by state legislatures take very different approaches to participation and may consciously or unconsciously be undermining the right itself. 

LABORATORIES OF AUTOCRACY

James Madison, the brilliant architect of our system of checks and balances, foresaw the potential of the states to abuse their powers by restricting the vote.  And right he was! Our greatest challenges to voting are being generated in states, primarily those where Republicans are in charge. Under the guise of election integrity and unproven fraud, 19 states passed new laws between 2020 and 2022 that made voting more difficult.  Some of these measures were reactions to the reforms enacted during the pandemic that made voting easier. Targets included vote-by-mail, an approach initially embraced by many in both red and blue states.   About 43% of all votes cast in 2020 were by mail, and the practice soared in most states, the major exceptions being those like Oregon, Washington, and Colorado, all of which have conducted elections by mail for years, and Indiana, Louisiana, Mississippi, Tennessee and Texas, which still required a non-pandemic excuse to receive a ballot. 

A FALSE NARRATIVE UNDERMINES LEGITIMACY 

Throughout the 2020 campaign, Trump claimed that Democrats would manipulate the absentee vote, and encouraged his base to cast their ballots on election day.  Ultimately, this made it easier for him to argue that Democrats used mail ballots, which were often counted and reported after election day, to steal the election. Remember places like Pennsylvania, where Trump was far ahead after election day votes were counted, but lost handily after the tabulation of mail-in and absentee votes? In state after state (an exception being Florida, where the absentee vote clearly benefited Trump), the “early vote” either increased Biden’s totals or, as in the Keystone state, flipped it into the Democratic column.  

Despite court cases and vote analysis that showed insufficient evidence of fraud to change the 2020 election results, a false narrative had been created, and many Republican legislatures responded by making mail voting more difficult. Following the successes of drop box usage in Fulton County, Georgia in 2020, the state effectively legislated them out of existence.  States like Arkansas, South Dakota, Texas, Wisconsin, Missouri, and Florida have decided to limit or eliminate the practice. 

Other Republican legislatures took aim at younger voters, who voted in large numbers for Biden and Democrats. In 2023, Ohio eliminated photo student ID cards as a vehicle for proving identity at the polls. Beginning in 2024, students in Idaho, a state that reported the largest increase in voter registration among 18 and 19 year old’s anywhere in the nation, will no longer be able to use their school’s ID cards to vote, much like their colleagues in Texas and three other states. Legislatures in New Hampshire, Montana, and Florida are actively considering similar measures, and other states are making it more difficult for students to vote in places where they reside.

Conservative states continue to find new ways to disqualify people who otherwise might exercise the suffrage. Remember Georgia’s massing purge of voters from the rolls in 2018?  Ohio can now cancel the registrations of voters simply because they have not voted recently and failed to respond to a letter from the department of elections; Secretary of State Frank Rose recently announced that thousands had been decertified since the beginning of the year.  Previously, voters had to miss two consecutive general elections to be moved to that status.  A new Iowa law moves all voters who did not cast ballots in the most recent general election to “inactive status”; they then have to reconfirm their registration.

REASONABLE? OR PART OF A PLAN?

These measures by themselves might be viewed as reasonable–until you understand that each individual action effectively eliminates certain portions of the electorate. There is no inherent problem, for example, in requiring a photo ID to vote; it is more difficult to cast a fraudulent vote if poll workers are required to determine who you are.  The problem is not the ID, but in requiring identification that some people do not have.  Studies indicate, for example, that younger people, older citizens, and minorities are less likely to carry driver’s licenses.  If you cannot provide the required ID under state law, you could be turned away at the polls or decide against casting a provisional ballot that may never be counted. If a state closes voting registration too early, groups like students might miss the deadline, with the result that they will be unable to cast a ballot on election day.  And a person who has not been able to cast a ballot for years because of work commitments may appear at the polls to find he or she has been “purged” and cannot cast a vote.  With every new regulation, states are reducing the pool of potential voters, and increasing the power of a middle-aged population who more regularly participates. 

LABORATORIES OF DEMOCRACY

The attack on voting in many states is a clear and present danger to the legitimacy of our system.  But other places are fighting back, including the Commonwealth of Virginia. Before Democrats gained control of the governorship and the legislature in 2020, the state had one of the most restrictive voting regimens in the nation.  Registration was cut off 30 days before election, restrictions were placed on absentee balloting, and photo ID served as a barrier to participation.  Then, everything changed.  Not only did the Commonwealth adopt election day registration and no-excuse early voting, but it adopted a state version of the Voting Rights Act (VRA) that included a key element of the federal provision called “preclearance,” a requirement that any major changes required review by the state’s Attorney General before implementation. These laws immediately increased turnout. Voter participation in the first Commonwealth’s gubernatorial election following these changes was 54.9%, over 7 points higher than the preceding governor’s contest in 2017.

Preclearance was a significant element of the 1965 federal Voting Rights Act, and targeted states with a long history of voting discrimination.  That provision was struck down by the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, a factor that helps explain numerous voter suppression bills passed by states over the last decade.  How ironic that the Capital of the confederacy and home to massive resistance would enact such change!  Five other states–Washington, Oregon, New York,  New Mexico, and California– now have their own Voting Rights Acts. 

Other states, while not adopting their own version of a VRA, are pushing for positive change. Eighteen states now allow residents to register to vote and cast a ballot on the same day. Michigan voters approved a constitutional amendment last year to make early voting easier and expand the use of absentee ballot drop boxes. The state also joined 21 other states and the District of Columbia that have automatic voter registration. Minnesota hopes to pass a law like Virginia’s to allow 16 year-olds to preregister to vote. In hopes of increasing voter participation,  Nevada will shortly begin sending mail ballots to all voters. 

Eight states now vote entirely by mail and send ballots to all registered voters ahead of Election Day.  One of those is Utah, about as red a state as you can find. But when it comes to voting, its procedures look more like Oregon than Mississippi.  The Beehive State embraced vote by mail and the use of dropboxes years ago, and has enjoyed so much success with the process that Trumpian conspiracy theorists were unable to dislodge it. Its voter participation numbers are consistently better than most states. In the recent midterms, 64.2% of registered Utah voters turned out to vote, much higher than the national number of 45.1%. 

These examples show, once again, that states can be laboratories of democracy, devising their own approaches to protect and enhance the rights of their residents. 

A WIDENING GAP BETWEEN RED AND BLUE

When it comes to voting, the U.S. appears to be two diverging nations. A recent academic study by Schraufnagel, Pomante, and Li ranked all 50 states using a “cost of voting index” based on ten categories that affect voting. They found that 9 of 10 states where voting was the most difficult were controlled by Republican legislatures or governors.  Of the 10 easiest, all but one–Utah– were under Democratic control.  

State legislatures remain in session, and it is likely that differences in their approaches to voting rights will continue to grow.  What this means for a national consensus on the importance of voting rights is troubling. The most important element of democratic legitimacy–the right to participate in the political decisions that affect our lives—will differ depending on where you live.  One thing remains clear: Embracing this fight means engaging in the states, for that is where the challenge will likely be won or lost. 

COMING IN FUTURE POSTS: 

WHAT IS ERIC–AND WHY IS IT CAUSING SUCH A FUSS? 

BALLOT INITIATIVES SHAKE UP LEGISLATURES—DOES THE PUBLIC HAVE TOO MUCH POWER?

JUDICIAL ELECTIONS MATTER. SHOULD THEY?