Category Archives: The Voting Wars

Panic setting in over new voting rules

Politico reports on the fear among Democrats and voting rights activists that getting out the vote (GOTV) will be much harder in light of the new more restrictive voting laws being adopted in states like Georgia. The article is useful because it helps explain the intensity of the opposition to these laws. And without getting into a discussion here about how unjustified (or not) these new laws are from a policy perspective, it is worth noting an analytical distinction that often gets elided in the coverage of these laws: cutbacks in voting opportunities that are retrogressive, and thus are an impediment relatively speaking to GOTV efforts, are not necessarily voter “suppression” in the strict sense of disenfranchisement (i.e., a barrier to casting a ballot and thus participating in the election). If voters have a genuine opportunity to participate but choose to abstain, they aren’t being denied the right to vote. This is true even if voter turnout efforts on the left fail to reach their target goals, or even past turnout levels. To be sure, these laws may be cynically motivated by a partisan realization that turnout rates are variable, depending on how convenient voting is; if it is less convenient, some marginal voters may not bother to cast a ballot, even though they actually have an opportunity to do so. It is certainly appropriate to condemn that kind of cynical partisanship, since it is a form of bad faith and contrary to the ideal of structuring the rules of electoral participation in the public interest (based on a nonpartisan assessment of the overall relevant policy considerations). Even so, discussion of this topic (at least in my view) ought to be careful to use terminology that recognizes the distinction between new laws that hinder participation compared to new laws that deny participation. Often, it seems that the phrase “voter suppression” or similar language is employed to make the former seem more like the latter, or at least to lump the two categories together.

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Political Conduct and the First Amendment

Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.

In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:

Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.

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Brennan Center Updates Report

Voting Laws Roundup: July 2021. I saw this just after posting on Politfact’s caution on the need to be nuanced when characterizing these new state laws. To the Brennan Center’s credit, this July update prominently states up front: “The new laws restricting voting access are not created equal.” It goes on to explain that some of the new statutes are “mixed” and others are “narrower in scope.” Still, I might quibble with how the Brennan Center describes some of the specific measures. For example, it calls “harsher” the requirement for absentee voters to produce a numerical form of identification (like a driver’s license number) rather than to use signature-matching as the way to verify an absentee voter’s ID. I would argue, to the contrary, that an accessible form of numerical ID is actually more voter-friendly than the inherently fraught process of signature-matching. Even so, I consider it a positive development if the public discourse on these laws is becoming more detailed-oriented and less of painting with the broadest possible brush.

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Nuanced Analysis of New Laws

Kudos to Politifact for this careful and detailed explanation of the degree to which the new state laws on voting make it harder to vote in those states.

Their analysis makes clear that they considered only the issue of retrogression: “Would the new law make it harder for a voter to cast a ballot in their state in 2022, compared with 2020? We did not judge how the new law compared with voting laws in other states; we simply looked at which direction the law went.”

They also are measured in the extent of the restrictiveness of any such retrogression: “All told, we found that about two-thirds of the new laws made changes that can be considered significant restrictions for voters. Another quarter of the laws made changes where a restrictive impact is conceivable but more speculative. And a few of the laws included some restrictive elements, but also included separate provisions that made voting easier.”

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The Arizona Audit

There is more news about the seemingly endless Maricopa County pseudo-audit. Maybe I’m naive, but I’m inclined to ignore whatever “results” come from this inherently inappropriate process. If the so-called “results” are favorable to Trump, it’s meaningless. It’s equally meaningless if the results are unfavorable to Trump, except for the fact that because the process was biased in Trump’s favor, an outcome contrary to the structural bias of the process could be confirmation of what the process was designed to refute.

The larger point is that we need a process that ex ante both parties accept as valid regardless of what results the process will produce. The process needs to be timely as well as transparent and accurate: no “audit” of a presidential election is useful six months after inauguration of the winner. As far as I can tell, the Arizona pseudo-audit serves no purpose except to further erode the capacity to conduct actual ballot-counting in future elections.

That said, I worry that the left is giving insufficient attention to the need to compromise on voting procedures that the right will consider trustworthy. If the right refuses to accept the results of elections as valid, it doesn’t really matter that they should: democracy is unsustainable unless the losers believe the winners actually won. So, without catering to crazy conspiracy theories, the left should be asking the right: what will it take for you to accept the outcome as legit? Obviously, if the answer is “elections are valid only if our candidate wins,” that’s a nonstarter. But if the answer is “we need voter ID, and various forms of procedural protections,” maybe that should be negotiable: even if as a first-order matter these procedures are unnecessary or undesirable, they might be an acceptable price for bipartisan buy-in to an electoral system that sustainably permits the will of the electorate to prevail.

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“There’s only one way for Democrats to beat back the GOP war on democracy”

Paul Waldman: “[T]he only real chance Democrats have at winning the war for democracy …. doesn’t involve stopping voter suppression but overcoming it, by working so hard and getting so many people registered and to the polls that even with the suppression measures in place, Democrats can still manage to win (after which they can use the power they gain to roll back those suppression measures).”

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“States across the country are dropping barriers to voting, widening a stark geographic divide in ballot access”

WaPo:

More than half of U.S. states have lowered somebarriers to voting since the 2020 election, making permanent practices that helped produce record voter turnout during the coronavirus pandemic — a striking countertrend to the passage of new restrictions in key Republican-controlled states this year.

The newly enacted laws in states from Vermont to California expand access to the voting process on a number of fronts, such as offering more early and mail voting options, protecting mail ballots from being improperly rejected and making it easier to register to vote.

Some states restored voting rights to people with past felony convictions or expanded options for voters with disabilities, both long-standing priorities among advocates. And in Virginia, a new law requires localities to receive preapproval or feedback on voting changesas a shield against racial discrimination, a first for states after the Supreme Court struck down a key part of the federal Voting Rights Act in 2013.ADVERTISING

The push to make voting easier aroundthe country comes even as Republicans have embraced voting restrictions in GOP-controlled states such as Georgia, Florida and Iowa. Some states have passed laws that make some elements of voting easier and others harder, leading to mixed effects.

But the overall result is a deepening divide in ballot access depending on where voters live — one shaped by how lawmakers have reacted to both the pandemic and former president Donald Trump’s false claims that the 2020 election was tainted by massive fraud.

“There’s a fault line that’s developing between states working to strengthen our democracy and states actively restricting it,” said Liz Avore, vice president for law and policy with thenonpartisan Voting Rights Lab, which tracks developments in state election law and analyzed this year’s legislative action in a report last week.“It is stark when you look at the map … That division is really remarkable.”

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“Democrats confront failure on elections strategy”

Politico:

It gets worse for Biden’s party: Now that the GOP has rejected debating the legislation that would overhaul federal elections, Democrats are without a new strategy to show party activists some momentum before the 2022 midterms. At the moment, the party doesn’t have a backup plan on elections and Democratic senators acknowledged their internal maneuvering over the filibuster has only begun after months of dominating their time in control of Washington.

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“Senate Republicans block Dems’ sweeping elections reform bill”

Politico:

Senate Republicans blocked Democrats’ sweeping elections and ethics reform bill on Tuesday, renewing calls from progressives to nix the legislative filibuster.

In a 50-50 vote, the Senate failed to move forward on the legislation, a top priority for Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi. The path forward is now murky at best on an issue that Democrats say they need to resolve before the 2022 midterms.

Following the vote, Schumer vowed that Democrats would explore “every last one of our options” and pledged that the issue would come up for debate again in the Senate.

“Democrats are going to keep going all summer, all fall, as long as it takes,” Schumer said. “This concerns the very core of our democracy. So we will not let it go. We will not let it die. This voter suppression cannot stand. And we are going to work tirelessly to see that it does not stand.”

Republicans, however, remain vehemently opposed, arguing that the bill — which Democrats designated S. 1 to signify its importance — would amount to nothing more than the federalization of the U.S. election system. That means that Democrats would need to change Senate rules in order to pass the legislation….

While Democrats were unable to move forward, Schumer did secure the vote of Sen. Joe Manchin (D-W.Va.), the only Senate Democrat who did not co-sponsor the bill. The unified Democratic vote will both help the party’s political messaging that the GOP is stonewalling them and likely intensify progressives’ push to end the filibuster.

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“Democrats Unite Behind Voting Rights Bill as It Faces a Senate Roadblock”

NYT:

A push by Democrats to enact the most expansive voting rights legislation in generations is set to collapse in the Senate on Tuesday, when Republicans are expected to use a filibuster to block a measure that President Biden and his allies in Congress have called a vital step to protect democracy.

Despite solid Republican opposition, Democrats plan to bring the voting rights fight to a head on the Senate floor, by calling a test vote to try to advance the broad federal elections overhaul, known as the For the People Act. As Republican-led states rush to enact restrictive new voting laws, Democrats have presented the legislation as the party’s best chance to undo them, expand ballot access from coast to coast and limit the effect of special interests on the political process.

“We can argue what should be done to protect voting rights and safeguard our democracy, but don’t you think we should be able to debate the issue?” Senator Chuck Schumer, Democrat of New York and the majority leader, said on Monday in a last-ditch appeal to Republicans to let the debate proceed.

But in the hours before the vote, Democrats conceded they were facing defeat — at least for now. Even if they succeeded in securing the votes of all 50 senators in the Democratic caucus, party leaders were expected to fall well short of the 60 votes needed to overcome a filibuster and begin debating the bill.

Instead, they focused on Monday on rallying the party around a more limited alternative proposed by Senator Joe Manchin III of West Virginia, who had been the only Democratic holdout on the voting rights measure. Both the White House and former President Barack Obama said his suggestions would address many of the most urgent issues. President Biden and Mr. Manchin also spoke directly about the need to find a legislative solution, according to an official familiar with their conversation who was not authorized to discuss it publicly.

Leaders hope that, given the support for his proposal, Mr. Manchin will vote with the rest of the Senate’s Democrats and Democratic-aligned independents to allow the debate to proceed, allowing his party to present a unified front on the bill.

Flashback to my March 16 WaPo piece: H.R. 1 can’t pass the Senate. But here are some voting reforms that could.

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Must-Read NYT: “How Republican States Are Expanding Their Power Over Elections”

Nick Corasantini and Reid Epstein for the NYT:

Lonnie Hollis has been a member of the Troup County election board in West Georgia since 2013. A Democrat and one of two Black women on the board, she has advocated Sunday voting, helped voters on Election Days and pushed for a new precinct location at a Black church in a nearby town.

But this year, Ms. Hollis will be removed from the board, the result of a local election law signed by Gov. Brian Kemp, a Republican. Previously, election board members were selected by both political parties, county commissioners and the three biggest municipalities in Troup County. Now, the G.O.P.-controlled county commission has the sole authority to restructure the board and appoint all the new members.

“I speak out and I know the laws,” Ms. Hollis said in an interview. “The bottom line is they don’t like people that have some type of intelligence and know what they’re doing, because they know they can’t influence them.”

Ms. Hollis is not alone. Across Georgia, members of at least 10 county election boards have been removed, had their position eliminated or are likely to be kicked off through local ordinances or new laws passed by the state legislature. At least five are people of color and most are Democrats — though some are Republicans — and they will most likely all be replaced by Republicans.

Ms. Hollis and local officials like her have been some of the earliest casualties as Republican-led legislatures mount an expansive takeover of election administration in a raft of new voting bills this year.

G.O.P. lawmakers have also stripped secretaries of state of their power, asserted more control over state election boards, made it easier to overturn election results, and pursued several partisan audits and inspections of 2020 results.

Republican state lawmakers have introduced at least 216 bills in 41 states to give legislatures more power over elections officials, according to the States United Democracy Center, a new bipartisan organization that aims to protect democratic norms. Of those, 24 have been enacted into law across 14 states.

G.O.P. lawmakers in Georgia say the new measures are meant to improve the performance of local boards, and reduce the influence of the political parties. But the laws allow Republicans to remove local officials they don’t like, and because several of them have been Black Democrats, voting rights groups fear that these are further attempts to disenfranchise voters of color.

The maneuvers risk eroding some of the core checks that stood as a bulwark against former President Donald J. Trump as he sought to subvert the 2020 election results. Had these bills been in place during the aftermath of the election, Democrats say, they would have significantly added to the turmoil Mr. Trump and his allies wrought by trying to overturn the outcome. They worry that proponents of Mr. Trump’s conspiracy theories will soon have much greater control over the levers of the American elections system.

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“Opinion: Manchin’s voting rights compromise is great — except it doesn’t take on ‘election subversion’”

Ned Foley WaPo column.

But other pieces of S. 1 that don’t make Manchin’s list deserve to be added. S. 1 has a section that would require voter-verified paper ballots, meaning voters have the opportunity to review an official paper record of their votes no matter what computer technology is employed to cast ballots. That’s an important way to protect the accuracy of ballot-counting, which is increasingly under threat. Another useful section of S. 1 provides grants to states to conduct risk-limiting audits, a recently developed statistical technique for checking the integrity of vote tallies.

The one overarching deficiency in Manchin’s laudable proposal is its lack of attention to the escalating risk of “election subversion,” the term that election-law expert Richard L. Hasen and others use to describe how Trump-inspired Republicans in battleground states are positioning themselves to undermine vote-counting.

The “audit” of the 2020 presidential election results in Arizona by the state GOP — Rep. Liz Cheney (R-Wyo.) notably called it “an effort to subvert democracy” — could become a model for Trump’s acolytes elsewhere to perpetuate his claim that he was robbed of the election. It’s essential that Congress prevent the methods being used in Arizona, involving one party taking possession of ballots in violation of generally accepted chain-of-custody requirements, becoming the means by which state officials try to repudiate results they don’t like in 2022 and 2024.Congress could guard against this danger by requiring states to satisfy basic chain-of-custody standards. Each house of Congress ultimately has the power under the Constitution to verify vote tallies in elections to that chamber. Therefore, as long as Congress can keep the integrity of ballots intact while they remain in the hands of state officials, Congress can assure an accurate count of those ballots — assuming that Congress itself will count votes honestly.

There is no such chain-of-custody provision on Manchin’s list. But it isn’t in S. 1 either.

Congress can defer this issue to a later bill, but lawmakers won’t be finished safeguarding democracy before the midterms until Manchin can broker a deal on protections for counting, not just casting, votes.

The more Republicans who join Manchin, the better. But the obligation of bipartisanship in electoral reform extends only to the “loyal opposition” — not to an opposition hostile to democracy itself.

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