Category Archives: voting

Monopoli on the Nineteenth Amendment

Paula Monopoli (University of Maryland Francis Carey School of Law) has a new article out entitled, “Gender, Voting Rights, and the Nineteenth Amendment.” The article is forthcoming in the Georgetown Journal of Law & Public Policy. The abstract is below:

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that ‘there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment’. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

Can’t wait to read this one! Important and timely.

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New Report from the Brennan Center

The Brennan Center for Justice at NYU Law has published “Voting Laws Roundup: October 2022,” their latest roundup of state voting and election laws, and “Restrictive Voting Laws Enacted Since 2020 in Effect for the Midterms,” a companion table outlining the impacts of the post-2020 restrictive voting laws that are in effect for the midterms.

The main findings (as of September 12, 2022): 

  • Voters in 20 states are being impacted by 33 new restrictive laws enacted since Jan. 1, 2021 and in effect for the midterms
    • The effects of these laws include but are not limited to reduced polling places and hours, shortened early voting periods, barriers to registration, and more (see table for all effects) 
    • The 20 states: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, New Hampshire, New York, Oklahoma, South Carolina, Texas, Utah, Wyoming 
  • So far in 2022, 7 state legislatures have enacted 12 election interference laws, of which 11 are in effect for the midterms
    • “Election interference” legislation – a brand new type of law that emerged after the 2020 election – either opens the door to partisan interference in elections or threatens the people and processes that make elections work (see roundup for these laws’ impacts)
    • The 7 states: Alabama, Arizona, Florida, Georgia, Kentucky, Missouri, Oklahoma 
  • So far in 2022, 12 state legislatures have enacted 19 laws that expand access to the vote, of which 18 are in effect for the midterms
    • The 12 states: Arizona, Connecticut, Delaware, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Rhode Island, South Carolina 

See the full report/table for more analysis and conclusions.

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Rank Choice Voting: A Scaleable Reform?

As more jurisdictions are considering introducing rank choice voting (the issue will be on the ballot in Nevada this fall), Politico offers this long-form essay on Alaska’s experience. Can Alaska “point the way to a more moderate, more nuanced way of doing politics”? Or is rank choice voting a product of Alaska’s uniquely independent culture? Politico spoke to Ivan Moore, “a longtime Alaska pollster who is considered one of the foremost experts on the state’s politics.”

“Number one, that ranked choice voting worked well. Pretty flawless performance by the Alaska Division of Elections.

. . .

[Sarah Palin lost because] Sarah Palin is indeed very unpopular.”

Interestingly, the relationship of a state’s culture to the potential for reform is a longstanding question. Early adopters of vote by mail, early voting, and same-day registration, for example, were often states that already had high turnout. This often led political scientists (and I believed them) to conclude the reforms were not scaleable. But 2020 seems to have proved them wrong.

By way of clarification, even if the Nevada ballot initiative is successful, the earliest the reform could be implemented is 2026. Amendment to the state constitution must be passed in two consecutive cycles. Rank choice voting is on the ballot in nine jurisdictions this fall, but the rest are at the municipal level.

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“Judge upholds Georgia election laws on all counts in voting rights case”

The Atlanta Journal-Constitution reports that Fair Fights Action has lost its 2018 challenge to Georgia’s election laws after four years. Georgia’s voter registration and absentee ballot practices, while not perfect, the Judge concluded, did not violate either the Constitution or the Voting Rights Act. The judge ruled in favor of Georgia on all counts. The full opinion is embedded in the article.

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“Where Democrats’ Grip on Minority Voters Could Slip in Midterm Elections”

Unfortunately, behind a firewall, the WSJ offers an interesting and nuanced analysis of the likely impact of increased support among voters of color for the Republican Party. The bottom line is turnout next month will be key. As per usual, a low turnout election will benefit Republicans whereas a high turnout election offers the Democratic Party its best chance.

“Black voters are a prime example of the balance between voter turnout and party preference. The median shift toward Mr. Trump in heavily Black neighborhoods was 1.5 percentage points. But Democrats retained overwhelming support among Black voters, winning about 90% of their votes. That suggests that Democrats gained substantially more from higher Black turnout than the party lost in defectors to the GOP.”

The analysis is based on a study of census tracts in which 70% of residents are persons of color. The WSJ compared how those neighborhoods voted in 2020 as compared to 2016. The study– which includes charts if you have access–confirms the consensus that the Republican Party did make inroads with nonwhite voters in 2020. But it offers a nuanced analysis:

“National figures show that U.S. Latino, Asian-American and Black voters backed President Joe Biden in 2020, though by smaller margins than Democrats won four years earlier. At the same time, more of these voters turned out than in 2016, producing a net gain in votes in many places for Democrats.”

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“Activists Flood Election Offices With Challenges”

New article by Nick Corasaniti and Alexandra Berzon at N.Y. Times describes how “false theories about election fraud” underly activists efforts to purge tens of thousands of voters from the rolls in many key battleground states.

Groups in Georgia have challenged at least 65,000 voter registrations across eight counties, claiming to have evidence that voters’ addresses were incorrect. In Michigan, an activist group tried to challenge 22,000 ballots from voters who had requested absentee ballots for the state’s August primary. And in Texas, residents sent in 116 affidavits challenging the eligibility of more than 6,000 voters in Harris County, which is home to Houston and is the state’s largest county.

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My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment

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“Take Me Out to the… Voting Booth!”

Josh Douglas has this comment in Washington Monthly, combining his twin loves of baseball and voting:

It’s hard to run an election in normal times, let alone during a global pandemic and in a period of extreme political polarization. The need to innovate in 2020, however, created some good news: Americans love voting at stadiums almost as much as they love the teams that play there. Sports stadiums or arenas are an ideal location to house in-person voting. We should expand their use and encourage teams to create a festive atmosphere while voting is taking place.

Those are some of the main takeaways of an important new report by scholars from five institutions and supported by the Civic Responsibility Project, a nonprofit organization dedicated to helping business leaders and other nonprofits expand civic engagement. The authors—experts in democracy reform—studied the use of sports stadiums in 2020 and came to a significant conclusion: Virtually everyone loves them. (Disclosure: I consulted on the project.)

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“New York City’s Noncitizen Voting Law Is Struck Down”

I blogged last year about a legal challenge to a new extension of voting rights to non-citizens in two Vermont cities. A much more significant expansion took place last fall in New York City, which also faced a similar legal challenge. Per the New York Times, a state court recently concluded that the law violated the state constitution:

“The New York State Constitution expressly states that citizens meeting the age and residency requirements are entitled to register and vote in elections,” the judge wrote in his ruling. “There is no statutory ability for the City of New York to issue inconsistent laws permitting noncitizens to vote and exceed the authority granted to it by the New York State Constitution.”

The text of the court’s ruling is here.

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“400 million voting records show profound racial and geographic disparities in voter turnout in the United States”

New article by Michael Barber and John Holbein in PLOS One:

One of the core tenets of a well-functioning representative democracy is that the people who vote to elect government officials are representative of the public. Here we reinforce the idea that reality is far from this lofty ideal. We document the extent and nature of inequities in voter participation in the United States with a level of granularity and precision that previous research has not afforded. To do so, we use a unique nationwide dataset of approximately 400 million validated voting records across multiple election cycles. With this novel dataset, we document large and persistent gaps in voter turnout by race, age, and political affiliation. Minority citizens, young people, and those who support the Democratic Party are much less likely to vote than whites, older citizens, and Republican Party supporters. Minorities, youth, and democrats are also much more likely to live in local communities where fewer individuals vote—areas that we term turnout deserts. Turnout deserts are especially pernicious given that they are self-reinforcing—bolstered by the social dynamics that fundamentally shape citizens’ voting patterns. Our results show just how glaring inequities in political participation are in the US. These patterns threaten the very fabric of our democracy and fundamentally shift the balance of political power in the halls of government towards the interests of whites, older citizens, and republicans. They illustrate that participation in the United States is strikingly unequal—far from the ideals that this country has long aspired to.

Charles Stewart: “This may end up being the canonical article on turnout differences by demographic groups for the past decade. A must-read.”

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