Category Archives: voting

Funding elections

Justin here. The President’s 2025 budget dropped on Monday, and it once again includes a substantial, long-term, sustained investment in funding elections. $5 billion, this time around.

I continue to think that this is right at the top of the list of critical election issues. It’s not as juicy as mapping out the endless labyrinth of hypothetical post-election shenanigans, or repeatedly saying AI — the “blockchain” of 2024. But it’s profoundly important, and (with some notable exceptions) tragically undercovered.

You want voting systems that are secure and reliable? That costs money. You want officials who know what they’re doing? That costs money. You want a communications structure able to withstand information dysfunction? That costs money. You want an electoral process that’s accessible to eligible voters? That costs money. You want results that are fast and accurate? That costs money.

Election officials have been making stone soup for way too long now, even as our expectations have expanded, county budgets have tightened, and the environment has gotten more difficult. Jurisdictions have taken philanthropic options — a last resort in the first place — off the table without stepping up to cover the gap. At this rate, we’re asking to get the elections we pay for, rather than the elections we demand and deserve.

After a few collapses, America finally decided to invest in roads, bridges, sewers, and broadband. The election system is the infrastructure of infrastructure: everything else we do in this country builds on that substrate. The President has repeatedly (FY2023 here and here, FY2024 here, FY 2025 here) tried to add the election system to the infrastructure we actually maintain. Congress has completely ignored the call. The strategy appears to be “hope it all holds up again.” Which is not actually a strategy.

Funding local election infrastructure is a profoundly bipartisan issue. Every member of Congress got their current job through the elections process, which elects Republicans in Republican areas and Democrats in Democratic areas. The bridge every member takes to get to work is the same bridge they’ve stubbornly refused to maintain. Can we please shore it up before it breaks, this time?

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Supreme Court Decision in Trump Colorado Disenfranchisement Case Almost Certainly Being Released Monday at 10 am ET (So It’s Technically Out Before Super Tuesday and Colorado Voting) and It Will Not Let Colorado Disqualify Trump

As recently as this weekend, the Supreme Court had not announced that it was going to issue opinions this week. Opinion releases usually happen when the Justices physically take the bench in Court, and the next opportunity for that which was listed on the Supreme Court website was March 15.

But the Court just changed its website to indicate that one or more opinions is going to be posted on the Supreme Court website at 10 am ET Monday morning. And the Justices won’t be taking the bench to do it.

There’s no plausible reason for this unusual break in protocol except for the potential to release the Trump Colorado disqualification case before voters vote on Super Tuesday. In fact, voters in Super Tuesday states have mostly had early voting opportunities to be voting for weeks. Tuesday is just the last day of voting. But I think the Court would like its opinion out before Colorado’s primary election day.

I certainly expect the Court is going to say that Colorado cannot disenfranchise Trump—and this would be especially true for them to issue an opinion a day before all this voting. If Trump were to be disenfranchised, the Court would not announce such a ruling the day before Super Tuesday, after many people in the jurisdiction had voted and with many more yet to vote.

The big question is not going to be if they reverse the Colorado Supreme Court but how they do so. Some ways will add some certainty and avoid chaos in the upcoming election; some may add to the chaos and I hope the Court avoids that.

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Federal Court Strikes Down Some, Upholds Other, Parts of Arizona Laws Requiring Proof of Citizenship to Register to Vote in State Elections and for State to Investigate Possible Noncitizen Registration

This is a complex ruling in a long-running case. (Via AZ Law).

From the conclusion of the 109-page opinion:

Non-US Plaintiffs may enforce § 10101 of the Civil Rights Act. Requiring individuals who register to vote using the State Form to include the individual’s state or country of birth violates the Materiality Provision of the Civil Rights Act. H.B. 2243’s Reason to Believe Provision also violates the Civil Rights Act, as well as section 8(b) of the NVRA because the provision will result in the investigation of only naturalized citizens based on county recorders’ subjective beliefs that a naturalized individual is a non-citizen.


In addition, requiring individuals registering to vote with the State Form to include documentary proof of residence to register for federal elections violates sections 6 and 7 of
the NVRA. However, Plaintiffs have not carried their burden to show that the VotingLaws’ remaining citizenship investigation procedures, DPOC requirements, and registration cancellation procedures violate the NVRA or the VRA. Nor do these provisions impose an undue burden on the right to vote or violate the equal protection and due process guarantees of the U.S. constitution. Finally, the Court concludes that Plaintiffs failed to show that the Voting Laws were enacted with any discriminatory purpose.


IT IS ORDERED declaring that A.R.S. § 16-121.01(A) violates § 10101(a)(2)(B) of the Civil Rights Act by denying Arizonans the right to vote based on errors or omissions that are not material to determining Arizonan’s eligibility to vote. Arizona may not reject State Form registrations that lack an individual’s state or country of birth and must register
an individual if that individual is found eligible to vote.


IT IS FURTHER ORDERED declaring that A.R.S. § 16-165(I) violates § 10101(a)(2)(A) of the Civil Rights Act and section 8(b) of the NVRA by subjecting naturalized citizens whom county recorders have reason to believe are non-citizens to SAVE checks, which is a different standard, practice, or procedure than that applied to native-born citizens. Arizona may not conduct SAVE checks on any registered voter whom county recorders have reason to believe are a non-citizen. But Arizona may conduct SAVE checks on registered voters who have provided DPOC. See A.R.S. § 16-165(I).

IT IS FURTHER ORDERED declaring that A.R.S. § 16-121.01(A) violates sections 6 and 7 of the NVRA by requiring Arizonans who register with the State Form to provide documentary proof of residence. Arizona may not reject State Form registrations that are not accompanied by documentary proof of residence but must register an individual without proof of residence as a Federal-Only Voter if that individual is otherwise eligible to vote.

MORE from Danielle Lang.

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“The Power of the Electorate Under State Constitutions”

Josh Douglas has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voter.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of recent scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, the Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. The Article explains these clauses and tallies how many state constitutions include each one, offering a descriptive fifty-state survey of the holistic state constitutional protection for voters. Second, the Article situates this multilayered right to vote within separation of powers principles, showing how the electorate is the most vital entity in state governance. An analogy to separation of powers ideals is a useful tool to check legislative or executive abuses of the election process. Third, the Article applies this theory to real-world voting rights disputes, arguing that courts should invalidate a law that infringes upon the multilayered right to vote. This approach differs from typical tiers of scrutiny and means-end analysis in right to vote cases. Instead, the test borrows from the non-retrogression principle once used in Voting Rights Act Section 5 cases: a plaintiff would have an evidentiary burden to show that a new law will make it harder for voters to participate or will reduce turnout. Importantly, if a legislature is taking away the power of the electorate to direct the government, then there is no valid state interest that can justify that encroachment. A plaintiff could invoke the theory by demonstrating empirically that a law will reduce voter participation.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

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“Florida’s New Driver’s License Rule Is Blatant Trans Voter Suppression”

TNR:

Quietly and behind the scenes last month, the Florida Department of Highway Safety and Motor Vehicles, or FLHSMV, issued a memo indicating that it will no longer honor Floridians’ requests to amend the gender marker on their driver’s licenses. “Permitting an individual to alter his or her license to reflect an internal sense of gender role or identity, which is neither immutable nor objectively verifiable, undermines the purpose of an identification record,” Robert Kynoch, deputy executive director of the Florida Department of Highway Safety and Motor Vehicles, wrote in the memo, reciting rhetoric now often used to justify anti-trans laws. The memo closed with what could be read as a threat: “Misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud [under state law] and subjects an offender to criminal and civil penalties.” Or, said more directly, as in a statement that FLHSMV made to several media outlets after news of the memo hit the press: “You do not get to play identity politics with your driver license.”

This news is alarming for several reasons. Until now, the state had allowed residents to amend the gender marker on their licenses and state identification cards. The Department of Highway Safety and Motor Vehicles, run by a political appointee of Florida Governor Ron DeSantis, is attempting to throw out that policy in this memo. The state legislature is also currently considering something similar: House Bill 1639, which Equality Florida, the statewide LGBTQ rights group, calls the Trans Erasure Bill, includes provisions that redefine “sex” and “gender” in the law in such a way that trans Floridians would be required to list the sex they were assigned at birth on their driver’s licenses. “On the one hand, you have this policy that’s saying, You can no longer amend, and on the other hand, you have this policy that’s saying, When you’re applying for documents they have to have your sex assigned at birth,” explained Kara Gross, legislative director and senior policy counsel at ACLU Florida. “So you’re creating a situation where there’s an intent to erase trans Floridians from public life.”…

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Texas: “Does federal law cited by Tarrant County judge really ban free transit rides to polls?”

Fort Worth Star-Telegram:

Tarrant County Judge Tim O’Hare this week cited federal law to support his opposition to reimbursing Trinity Metro for free fares on primary Election Day. But, does that law actually prohibit free rides to the polls?

The County Commissioners Court on Wednesday voted down the measure along party lines. It would have reimbursed the transit agency $10,000 for the rides. Trinity Metro announced Thursday that it still plans to offer free rides to polling sites on primary Election Day, March 5.

O’Hare, a Republican, cited U.S. Code 18, section 597, which states that anyone who “makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate” could face a fine and up to one year in prison.

That statute, however, does not prohibit free bus and train rides to polling stations, according to electoral law experts consulted by the Star-Telegram….

Michael Morley, a law professor at Florida State University, said the law is meant to prohibit vote buying.

“So long as the transportation is not provided as part of a quid pro quo exchange for votes, but instead only seeks to reduce barriers to voting, it is fine,” he wrote in an email.

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“Compulsory Voting’s American History”

Very excited to read this Harvard Law Review student note by Aidan Calvelli. Here’s the Introduction:

Voter turnout was higher in the 2020 U.S. presidential election than it had been in 120 years.1 Nearly sixty-seven percent of citizens over eighteen voted that November, exceeding rates that hovered around sixty percent in the twenty-first century and never broke sixty percent from 1972 to 2000.2 Some pundits have read this recent record as a triumph.3 But it can also be seen as a travesty: even with the best turnout since 1900, nearly eighty million eligible voters stayed home.4

Slim turnout has long prompted reform efforts.5 Yet the United States has always shied from one direct solution: requiring everyone to vote. “Compulsory voting” — where legislatures require attendance at the polls, often enforced by fines or penalties — exists in around two dozen countries, but nowhere in America,6 relegating the idea to “goo-goo reformers”7 and law review notes.8

Recently, however, compulsory voting has entered mainstream debate. President Obama floated the idea in 2015 to fight money in politics and diversify the electorate.9 A 2018 New York Times article piqued interest in Australia’s mandatory voting system.10 And in 2022, E.J. Dionne Jr. and Miles Rapoport published a popular book arguing that “universal civic duty voting” will end voter suppression, improve representation, and boost belief in government.11 Their work has inspired legislators in Connecticut, Massachusetts, and Washington to introduce compulsory voting bills.12

This nascent debate marks an exciting effort to make the actual electorate more representative of the eligible electorate and potentially shift political power.13 Yet modern debates have so far largely overlooked one angle of analysis: history. Though no writer since the 1950s has devoted more than two paragraphs to the history of compulsory voting efforts in the United States,14 the idea has a rich American tradition. Policies first emerged before the Founding. And debates especially picked up beginning in the 1880s and through the Progressive Era, when twelve states considered the policy, including two — Massachusetts and North Dakota — that passed amendments letting their legislatures enact it.15

This Note begins to excavate that history. In doing so, the Note illustrates the importance of the fact that these debates happened, highlights Progressives’ competing visions of democracy, and seeks to inform how advocates consider the policy today. Taking seriously the issue some contemporaries called the “most important” the Progressives faced16 can help us better understand their democracy — and ours.

The Note proceeds as follows. Part I traces the history of attempts to institute compulsory voting in the United States, focusing primarily on the Progressive Era. Part II canvasses the main arguments at Progressive Era conventions for and against compulsory voting. And Part III considers what these debates illustrate about Progressive democracy and policy debates today.

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“Bill targeting college IDs clears Kentucky Senate in effort to revise voter identification law”

AP:

 College-issued student ID cards won’t carry the same weight as a form of photo identification at polling places if a bill that advanced Tuesday in Kentucky’s legislature becomes law.

The Senate voted to revise the state’s voter identification law by removing those student IDs from the list of primary documents to verify a voter’s identity.

Senate Bill 80 — which would still allow those student IDs as a secondary form of identification — won Senate passage on a 27-7 vote and heads to the House. Republicans have supermajorities in both chambers.

Republican Secretary of State Michael Adams, a key supporter of the state’s 2020 voter ID law, has expressed opposition to the new legislation.

Supporters of the bill insist that the change would be no impediment to students’ ability to vote.

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“Voting Is Bewildering This Primary Season. That Worries Experts.”

NYT:

Democracy is messy, but usually not this messy.

Take, for example, New Hampshire, where President Biden boycotted the primary election last Tuesday, after the state jumped the line in the Democratic Party’s new schedule to keep its first-in-the-nation primary status. Because it would have been embarrassing if Mr. Biden had lost there, a group of supporters took to telling voters that, while he might not be asking for their vote, he didn’t not want it. Could you please write in his name? (They did, and he won.)

Next on the primary calendar is South Carolina, on Feb. 3, but only if you’re a Democrat. If you’re a Republican there, you will not vote until Feb. 24, after fellow party members in Nevada have their say.

Oh, and about Nevada: If you support Nikki Haley, you can vote for her in the state’s primary on Feb. 6, but your vote will not count toward the Republican nomination. That is tied to the party’s caucuses on Feb. 8, and Ms. Haley will not be part of that process. If you support former President Donald J. Trump, you can vote for him in the caucuses, but not in the primary. The primary, which is run by the State of Nevada, will be conducted by mail, while the caucuses will be in person. That’s because the Nevada Republican Party opposed conducting the primary by mail, which is part of why it scheduled the caucuses to begin with.

Got it?

As voters enter an election year in which many feel that democracy itself is on the ballot, they face a bewildering set of dates and procedures to choose their presidential nominees. And that’s without even getting into the longtime snag of some states’ scheduling separate primaries for president and other offices, as well as special elections, all of which adds up to some voters having as many as five Election Days….

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My New Piece in the NY Times: “The U.S. Lacks What Every Democracy Needs”

I have written this guest essay (free gift link) for the NY Times (adapted from my upcoming book, A Real Right to Vote). It begins:

The history of voting in the United States shows the high costs of living with an old Constitution, unevenly enforced by a reluctant Supreme Court.

Unlike the constitutions of many other advanced democracies, the U.S. Constitution contains no affirmative right to vote. We have nothing like Section 3 of the Canadian Charter of Rights and Freedoms, providing that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” or like Article 38 of the Basic Law of the Federal Republic of Germany, which provides that when it comes to election of the Bundestag, “any person who has attained the age of 18 shall be entitled to vote.”

As we enter yet another fraught election season, it’s easy to miss that many of the problems we have with voting and elections in the United States can be traced to this fundamental constitutional defect. Our problems are only going to get worse until we get constitutional change….

Most expansions of voting rights in the United States have come from constitutional amendments and congressional action, not from courts. In fact, in Bush v. Gore, to give a relatively recent example, the Supreme Court reiterated that the Constitution does not guarantee citizens the right to vote for president and confirmed that states may take back the power to appoint presidential electors directly in future elections…

It is hard to overstate how unusual it was for Mr. Carrington to get the Supreme Court to strike down his disenfranchisement. His lawsuit came during the only period in the 235-year history of the Supreme Court when it was hospitable to broad constitutional voting rights claims. The court, under Chief Justice Earl Warren, saw a broad expansion of voting rights in the 1960s, thanks mainly to its capacious reading of the equal protection clause.Mr. Carrington fared better than many others who previously brought their claims of disenfranchisement to the Supreme Court, including most importantly Virginia Minor and Jackson W. Giles. Their cases perpetuated the disenfranchisement of millions of women and African American voters despite constitutional amendments that appeared to protect their rights….

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“Power for the People: Recognizing the Constitutional Right to Vote for President”

Charlie Martel has posted this draft on SSRN. Here is the abstract:

This article is an argument for a federal constitutional right to vote for president at a time when voting rights are under grave threat. The Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president.

The article explains why the Supreme Court cases rejecting the citizens’ right to vote were wrong. My first argument is textualism. The plain language in the five constitutional right to vote amendments demonstrates there is a right to vote for president. From there, the article demonstrates that the Court’s plenary power cases rest on irredeemably flawed Jim Crow era precedent abrogated by constitutional amendment and historical evolution of the right to vote. Further, the “plenary power” anti-democracy Court cases are irreconcilable with other Court precedent recognizing that the right to vote is foundational to all rights. I also make two consequentialist arguments: first, plenary state power to choose presidents has racist, sexist, and ageist results, and second, that the usurpation of the citizens’ right to vote for president would be catastrophic for democracy and the country. The article provides a framework for making the right to vote the new normative standard for evaluating presidential election disputes.

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“Elections and Disinformation Are Colliding Like Never Before in 2024”

NYT:

Billions of people will vote in major elections this year — around half of the global population, by some estimates — in one of the largest and most consequential democratic exercises in living memory. The results will affect how the world is run for decades to come.

At the same time, false narratives and conspiracy theories have evolved into an increasingly global menace.

Baseless claims of election fraud have battered trust in democracy. Foreign influence campaigns regularly target polarizing domestic challenges. Artificial intelligence has supercharged disinformation efforts and distorted perceptions of reality. All while major social media companies have scaled back their safeguards and downsized election teams.

“Almost every democracy is under stress, independent of technology,” said Darrell M. West, a senior fellow at the Brookings Institution think tank. “When you add disinformation on top of that, it just creates many opportunities for mischief.”

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