What if we made voting an agent of equality, not inequality? And how can we get there?
If you are a college student or a working recent high school graduate, poor, Latino, or someone who moves more frequently, you are less likely to vote. Seniors are much more likely to vote than young people, in some elections at twice their rate. Those with college degrees vote in higher numbers than the less educated. Minority voters are more likely to wait longer in line to vote in person, sometimes for hours, and they, young people, and first-time voters are more likely to have an absentee ballot rejected for nonconformity with technical rules. Poor voters are less likely to have the time off work to vote at all, much less wait in a long line to vote. Voters in big cities, who tend to be younger, poorer and browner, have coped with more serious election problems than others in voting in person and by mail during our coronavirus-laden primary season, like the voters in Milwaukee voters who saw 175 out of 180 polling places closed during the April 7 Wisconsin primaries.
In a democratic system, we expect our elected officials to be responsive to the views and interests of the voters. If the universe of voters — and, of course, campaign donors — is skewed toward older, wealthier, better educated whiter voters, political decisions will be as well. We need equality in voting rights and turnout to assure responsive representation and social policy that reflects everyone’s needs, not just those most likely to turn out with their votes and dollars.
Let’s start with the causes of the problem. The Covid-19 pandemic has laid bare three pathologies with how we protect voting rights in the United States, and why the skew in voter turnout remains persistent.
First, the United States election system features deep fragmentation of governmental authority over elections. Not only does the United States use a highly decentralized and localized election system that gives many powers over national elections to state and local bodies, but also, even within the approximately 10,500 bodies expected to run the 2020 election, there is sometimes disagreement over who has decision making authority over voting rights decisions. In the recent chaos of the June 9 Georgia primary, for example, the secretary of state and counties including the area around Atlanta pointed fingers at one another as to who was to blame for long lines, inoperable new voting machines rolled out for the first time in a presidential election year and closed polling places.
Second, protection of voting rights in the United States is marked by polarized and judicialized decision making. Some Republican decision makers controlling some aspects of American election machinery have pushed for laws and policies that make it harder for students, the poor and minority voters to register and vote, leading to a pushback by Democrats and voting rights groups to loosen those restrictions. Often this battle takes the form of unsubstantiated claims of voter fraud, such as President Trump’s recent false claims about vote-by-mail, a method of voting he and his closest friends and advisers are comfortable using themselves. These politicians often use antifraud messages to justify restrictive voting laws or, in the case of the pandemic, a refusal to modify laws to assure continued access to the ballot. Mr. Trump’s irresponsible tirades against mail-in balloting during the pandemic are particularly confounding, and make it more likely that his own rural and poorer supporters will either not vote or not be able to vote safely.
Given the highly litigious nature of American society and American election law in particular, these political fights often wind up in court, and sometimes break along party lines in the courts as well. Protecting voting rights in 2020 America requires a state-by-state slog and often litigation in an uncertain legal environment. These battles have been especially intense since the Supreme Court in its 2013 decision in Shelby County v. Holder killed off a key protection for minority voters in the Voting rights Act.
Finally, and related to this last point, constitutional protections for voting rights remain weak. The U.S. Constitution contains no affirmative right to vote. It speaks of voting rights mostly in the negative: thanks to a number of constitutional amendments, it is now illegal to bar someone from voting on the basis of race, gender, age of at least 18, or through the use of a poll tax.
The Constitution does guarantee equal protection of the laws in the 14th Amendment, and equal protection lawsuits have become the primary method by which those seeking to protect voting rights get federal court relief. Courts sometimes protect voting rights and sometimes they don’t, through application of an ad hoc and uncertain balancing test. For example, the United States Court of Appeals for the Fifth Circuit, headquartered in Louisiana, recently rejected age-discrimination and equal-protection arguments that it is unconstitutional for Texas to allow voters over the age of 65 to vote by mail without an excuse, while barring from the vote-by-mail option others who lack immunity from the coronavirus and fear going to a polling place to vote. The Texas Democratic Party appealed for emergency relief from the Supreme Court. On Friday, it lost.
A decentralized, federalist approach to voting rights has led to a self-perpetuating system of voting inequality, where in some places you may be disenfranchised even if you do everything right. For example, some voters in Georgia, including the 2018 Democratic candidate for governor, Stacey Abrams, requested the chance to vote by mail back in April, but had problems with their June primary ballots and had to wait in long lines at polling places to vote instead.
In the short term, we need to take certain steps to assure that millions of voters already at risk of not voting are not disenfranchised through suppression, incompetence, and lack of resources in November. All states need to expand opportunities for online voter registration in time for November. People cannot go door-to-door during a pandemic as they usually would, signing up voters in the summer before a high-stakes election. Although there is some evidence that the George Floyd protests have led to a spike in registrations in some places, voter registration was down 70 percent in April 2020 compared to April 2016 across 11 states, including California and Texas, according to a study by the Center for Election Innovation and Research. California at least has same-day voter registration, but Texas does not. If you can’t register, you can’t vote.
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Congress needs to adequately fund additional expenses related to running an election during the pandemic. Absentee ballot requests will soar, whether states have the resources to process them or not, and fewer resources means more mistakes and a greater risk of disenfranchisement. It is also more expensive to run polling places with good hygiene and social distancing. So far Congress has allocated only $400 million, but estimates are that it will take $2 billion or more to get our system ready.
Even this won’t be enough. Lawsuits are going to be necessary to ensure that the kinds of debacles we have seen in Georgia and Wisconsin are not repeated in November. States need to form independent bipartisan task forces to conduct full and independent investigations into why areas with more poor voters and voters of color saw significant problems voting in person during the primaries.
Beyond triage for 2020, longer term change requires bolder thinking. We need a new social movement, that may take a generation or more, pushing a constitutional amendment protecting the right to vote. It would guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.
Talking of a constitutional amendment in the current polarized atmosphere may sound like a pipe dream when Congress cannot pass even basic voting rights protections, like restoring the part of the Voting Rights Act that the Supreme Court destroyed. But the current situation is untenable.
We need a 28th Amendment for voter equality around which people can organize and agitate. Organization could emulate the battle for passage of the 19th Amendment, which bars gender discrimination in voting. It took more than a generation for that amendment to pass, and along the way activists for equal women’s suffrage got state legislatures to bolster voting rights and the public to change its attitudes about voting.
It has been 100 years since passage of the 19th Amendment and 150 since the passage of the 15th Amendment barring racial discrimination in voting. Despite those accomplishments, every national election features endless angst and litigation over assuring people the right to vote, which puts special burdens on those who already face the greatest barriers. We need to bring that struggle to an end and press forward toward a new voting rights amendment that would assure that our representatives truly reflect the will of the people.
Richard L. Hasen (@rickhasen) is a professor of law and political science at the University of California, Irvine, and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”
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