Category Archives: voting

“Mary Lou Graves, Nolen Breedlove, and the Nineteenth Amendment”

Draft from Ellen D. Katz, forthcoming in the Georgetown Journal of Law & Public Policy:

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that – contrary to the general understanding in the scholarly literature – the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote social hierarchies more generally, specifically those based on race and gender.

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WaPo op-ed: “What if everyone voted? The case for 100 percent democracy.”

From E.J. Dionne Jr. & Miles Rapoport, based on their new book:

The first step toward ending our voting wars is to recognize that every citizen should play a role in shaping our nation’s destiny.

In the wake of changes that made voting more convenient, and resulted in record turnout in 2020, state after state is making it harder for citizens to cast a ballot. Congress is deadlocked on whether the federal government should protect this most basic of all democratic rights. False claims of election-rigging in 2020 led to a violent attack on the very process of transferring power. As a nation, we vacillate between inclusion and exclusion, between embracing democracy or retreating.

Breaking this cycle requires a game-changer. We propose universal voting.

Under this system, every U.S. citizen would be legally obligated to vote, just as every citizen is obligated to serve on juries. By recognizing that all of us, as a matter of civic duty, have an obligation to shape our shared project of democratic self-government, we could move from our 2020 voter turnout high — some 66.8 percent of eligible voters — much closer to 100 percent democracy.

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Adam Laxalt, Senate Candidate, Says He’s Already Gearing Up to Fight Election Fraud

Nick Corasaniti, Blake Hounshell and Leah Askarinam in the New York Times:

Nevadans still have 231 days until they head to the polls in November. But Adam Laxalt, the former attorney general of Nevada and a Republican candidate for Senate, is already laying detailed groundwork to fight election fraud in his race — long before a single vote has been cast or counted.

In conversations with voters at an event at his campaign headquarters this month, Laxalt explained how he’s vetting outside groups to help him establish election observer teams and map out a litigation strategy.

“I don’t talk about that, but we’re vetting which group we think is going to do better,” Laxalt told an attendee, according to an audio recording obtained by The New York Times from a person who attended the event and opposes Laxalt’s candidacy.

At the event, Laxalt criticized the 2020 Trump campaign and outside groups for their handling of election-fraud claims, saying that they went on the offensive too late. “In 2020, it was nothing,” he said, according to the audio recording. “And then the campaign was late and the party was late. So, it’s just different now. There’s a lot of groups that are saying there’s election fraud.”

And should he be unable to find help, Laxalt pledged that his campaign would shoulder the cost of bringing in lawyers and mapping out a strategy, even at the expense of other core programs necessary to run a campaign.

Later, the piece notes, “Laxalt’s legal strategy foreshadows a likely new permanent battleground for political campaigns: postelection court battles.” I hate to break it to you, dear reader, but we may already be there….

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New book details White House friction over voting rights push

Politico excerpts portions of Jonathan Martin and Alex Burns’s This Will Not Pass: Trump, Biden, and the Battle for America’s Future:

Harris did ask to lead the administration’s push to shore up federal voting rights. But as the effort stalled in Congress, leaving the White House (and Harris) with not many options, she placed some of the blame at Biden’s feet, according to the book. “How was she supposed to communicate clearly about voting-rights legislation, Harris asked West Wing aides, when the president would not even say that he supported changing the Senate rules to open the path for a bill?”

As calls for Biden to come out in favor of a filibuster carve-out for voting rights and frustration with the White House’s perceived lack of prioritization of the issue grew, Harris told Biden aides that she couldn’t be as forceful publicly as she wanted to be. She told him she couldn’t go all out until “voters knew that Biden himself was willing to back the procedural steps required to” pass legislation, the two write.

The VP’s office declined to comment on the excerpts.

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“Iowa Supreme Court to hear challenge from subpoenaed legislators in voting rights case”

William Morris in the Des Moines Register:

Republican legislators facing subpoenas seeking their emails and other documents will get the chance to make the case to the Iowa Supreme Court that their communications should be private.

Iowa’s highest court has granted a petition by nearly a dozen current and former legislators who are seeking to block the subpoenas by the League of United Latin American Citizens. The group has mounted a legal challenge to a 2021 law imposing new voting restrictions in Iowa, and is seeking messages and reports related to the passage of the law.

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How to guarantee the right to cast a ballot?

I have seen a lot a skepticism lately about relying on courts to protect the equal right of eligible voters to participate in an election by casting a ballot and having it counted accurately. But unless Congress is going to exercise its constitutional power to create an entirely new federal bureau of election administration to run congressional elections (and states would willingly let this new federal bureau administer other elections, like gubernatorial and the popular vote to appoint presidential electors), what’s the alternative?

How can we tell if every eligible voter who wants to cast a ballot is meaningfully able to do so in a specific election (like the upcoming midterms)–and thus is not being denied their fundamental right to vote? First, assuming a state does not have same-day registration, the voter must have an adequate opportunity to register in advance. While same-day registration certainly makes access to the ballot easier, I would not argue that the absence of same-day registration is a denial of the right to vote, as long as the state provides its eligible citizens with a genuine opportunity to register in advance. If state officials failed to do that, in violation of existing federal law, it would be necessary to turn to the courts to enforce that right. (And even if federal law were to require same-day registration nationwide, it would be necessary to rely on federal-court enforcement of that right in the event of noncompliance, deliberate or otherwise, by state and local election officials.)

Assuming eligible citizens have a meaningful opportunity to register in advance, what about their opportunity to cast a ballot? The essential role of provisional ballots, as required by HAVA, should not be overlooked in this respect. All voters who believe themselves to be registered have an existing federal-law right to cast a provisional ballot. I worry about long lines at the polls as a practical obstacle to voters wishing to cast a ballot, including a provisional one if necessary, but voters who want to make sure they are not denied their right to vote must insist that they cast at least a provisional ballot and refuse to leave their polling place without being able to do so. If state and local officials fail to comply with this existing federal-law obligation to give a provisional ballot to all voters who request one, it would be necessary to go to court seeking an emergency TRO to make sure these provisional ballots get into voters hands while they remain waiting in line.

Compliance with the existing federal-law obligation to give voters provisional ballots is especially important in a presidential election for this reason: if voters who want to cast a ballot but who are denied the opportunity to cast one and leave their polling places without casting one, there is no possibility of a do-over after Election Day has passed, at least not under existing federal law. Why? Because if the claim is that a state’s popular vote in a presidential election is fundamentally defective because there were a group of voters (say, for example, many in Atlanta) who were denied their right to cast a provisional ballot, then the popular-vote election for the purpose of appointing the state’s electors will have “failed to make a choice on the day prescribed by law” under 3 U.S.C. 2, thereby giving the state’s legislature the right to choose an alternative method of appointing electors (including direct appointment by the legislature itself).

Thus, as we contemplate the possibility of partisan state and local election officials (along with partisan state legislatures) attempting to engineer electoral outcomes in contravention to free and fair elections, including by denying eligible citizens the right to cast a ballot, we ultimately must rely on courts to uphold the law that guarantees the right to cast a ballot. Above all, this includes the key provisions of the federal Help America Vote Act that insist that no voter be turned away from the polls without having a chance to cast a provisional ballot, which must eventually be counted if indeed the voter was registered and eligible to participate in the election as the voter believed. I’m afraid that, as we think about how to safeguard democracy from the very real dangers that exist, we are neglecting the need to remain vigilant about the judicial protection, if necessary, of the essential right to cast a provisional ballot.

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WaPo “Factchecker” on “Jim Crow 2.0” Senate debate

Accurately describing itself as a “reader service,” this new Fact Checker analysis carefully details the arguments on both sides and the relevant provisions of the new laws in key states (like Georgia and Texas), including the DOJ and other lawsuits filed against these new laws. I noted one small error in the piece, where it describes Georgia’s response to the DOJ lawsuit as the “complaint” (a description all the more confusing since it correctly used the same term “complaint” to refer to DOJ’s filing a few paragraphs earlier). Apart from that minor glitch, however, the piece struck me as exemplary of the independent and impartial journalism that the public needs on this kind of issue.

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Georgia’s new voting law drives rejections of absentee ballots way up

Mark Niesse, The Atlanta Journal-Constitution

Georgia’s Republican legislature tightened absentee ballot access, including by imposing an earlier deadline for requests for absentee ballots, after a record 1.3 million Georgians voted remotely in last year’s presidential election.

New data show “Missed deadline was No. 1 cause of absentee ballot denials.”

“In all, election officials rejected 4% of absentee ballot requests for this year’s municipal elections on Nov. 2, according to public voting records analyzed by The Atlanta Journal-Constitution. There were 1,362 rejected absentee ballot applications out of 35,312 submitted.

That’s an increase from less than 1% of absentee ballot applications rejected in last year’s general election.”

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As Federal Options Close, Remember States

With a Supreme Court that is borderline hostile to voting rights and Congress in perpetual gridlock, it is no wonder voters and their advocates are despairing. Still, fade out the polarization noise, and the fact of the matter is that 25 states have enacted legislation to expand voter access and voting rights in 2021, including Republican-run, North Dakota. Virginia even adopted its own state-level Voting Rights Act, creating a review process to prevent local jurisdictions from implementing discriminatory voting practices.

In several states, including New York, Nevada, Kentucky, Louisiana, Indiana, and Oklahoma, compromise legislation limiting the ease of voting in some respects and relaxing it in others was adopted. Negotiations between Pennsylvania’s Republican legislature and its Democratic Governor over access to the ballot opened last week when the legislature announced proposed legislation. The Brennan Center’s comprehensive accounting of states that have restricted voting rights in 2021 is available here.

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“New York Moves to Allow 800,000 Noncitizens to Vote in Local Elections”

NYT:

New York City lawmakers are poised to allow more than 800,000 New Yorkers who are green card holders or have the legal right to work in the United States to vote in municipal elections and for local ballot initiatives.

The bill, known as “Our City, Our Vote,” would make New York City the largest municipality in the country to allow noncitizens to vote in local elections.

The legislation, expected to be approved by the City Council on Dec. 9 by a veto-proof margin, comes as the country is dealing with a swath of new laws to impose voter restrictions, as well as the economic and demographic effects of a decline in immigration.

Voters in Alabama, Colorado and Florida passed ballot measures last year specifying that only U.S. citizens could vote. The states joined Arizona and North Dakota in specifying that noncitizens could not vote in state and local elections.

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“Kansas Voter Suppression Law Blocked by Court”

Democracy Alerts

Federal court grants preliminary injunction in case challenging Kansas’s new voter suppression law. “The lawsuit, filed on behalf of VoteAmerica and Voter Participation Center in June, is challenging House Bill 2332, which restricts nonpartisan out-of-state organizations from providing mail-in ballot applications to registered voters and criminalizes the mailing of personalized advance ballot (similar to early voting in other states) applications.”

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Does Low Turnout Matter?

The old consensus was not really. Voters, it was argued, basically reflect the views of non-voters. In recent years, some political scientists are not so sure. Two empirical facts drive the new skepticism.

First, despite significant gains in high turnout elections like 2020, the electorate that turns out remains unrepresentative on axes of class, race, and age. Apart from seniors, the general rule is that individuals at the top of the socioeconomic ladder are much more likely to turn out on Election Day than those at the bottom. Income and education, however, are not the only axes of distortion. Americans who are over 65 remains significantly more likely to vote than those who are under 35.

The demographic biases of the electorate are most acute during primaries, midterms, and off-cycle elections—including the age bias.

The old view was that none of this mattered because the electorate’s partisan preferences roughly match that of the eligible electorate. That may still be true, but the conclusion that non-voting doesn’t matter may still be wrong. The strongest data pertain to the gap between young and old voters. A series of PEW studies show that younger Americans have distinctly more progressive views on a range of views, regardless of party affiliation from gay marriage and racial inequality to global warming and the role of government. Data also show that young voters are significantly more likely to prefer the Democratic Party. (My personal view is that we underestimate how the age bias of the electorate explain mid-term backlash against the party in power—the Nate Cohn graph on below 60% turnout would seem to confirm that hunch.)

Beyond age, the class bias of the electorate may also matter. Nonvoters generally have different life experiences, and this seems to translate into different policy preferences—if not partisan preferences. Kay Schlozman’s 2012 study, The Unheavenly Chorus, found inactive voters are not only much more likely to report struggling to pay bills, obtain healthcare, and find decent housing, but also much more likely to have utilized public benefit programs. Data also suggest that economic position affects economic policy preferences from welfare spending to taxes—though not a range of other hot-button policy issues. For example, Pew found, in 2014, that “Opinions about the factors that result in wealth and poverty differ across income categories,” and further that this appears to translate into different views of the value of government assistance, reporting that “People with lower incomes express more positive views of government programs to aid the poor than do those with higher incomes.” Academic studies on the New-Gilded Age and the distinct views of the super-rich, including the work of Benjamin Page & Cari Lynn Hennessy, are consistent with the broader observation that views on economic policy tend to track class position.

Apart from the above, a recent Knight Foundation study emphasizes that perhaps the greatest difference between voters and non-voters is their lack of faith in the electoral system.

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“GOP roars back to life in Trump-resistant Pennsylvania suburbs”

Politico

I am skeptical that the wins in Bucks County amount to the GOP roaring back to life in the Pennsylvania suburbs. No one ever seriously discusses turnout. Compare Municipal 2021 with General 2020 and Midterm 2018. We would have to see next year’s midterm turnout drop to 2014 levels for the 2021 election to be a useful benchmark of GOP support in the state. I would be very surprised to see that given Pennsylvania will have open seats for Governor and the U.S. Senate in 2022. For a different skeptical take, see WHYY and particularly the comments of Lara Putnam. Still, it is worth a read.

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