Voting

Background

The right to vote is a fundamental human right. Free and fair elections are essential to democracy. Voting allows citizens to influence governmental decision-making.

Federal law requires states to:

  • meet uniform standards in federal elections;
  • maintain centralized voter lists;
  • allow voters to cast provisional ballots when necessary; and
  • permit voters to verify and correct any missing information that required them to use a provisional ballot.

The Voting Rights Act requires some states and other jurisdictions to receive federal permission for changes in voting laws, including voter ID laws. This preclearance process must come from a federal court or the Department of Justice. The purpose is to block discrimination. However, the 2013 Supreme Court decision in Shelby County v. Holder struck down the formula that determined which jurisdictions had to seek preclearance. Congress still needs to create a new formula. Until then, covered jurisdictions no longer have to seek preclearance for their voting law changes.

Outside of these limited federal requirements, the U.S. has a decentralized voting system. Voting procedures vary greatly by location. States pass laws related to registration, voting, and counting ballots. Localities then administer these laws.

Voter turnout refers to the percentage of eligible voters who vote in an election. Turnout typically varies by state. In part, this is due to each state’s registration and voting procedures. States with practices that encourage registration and voting—such as allowing people to register to vote on the day of the election—typically have higher voter turnout. Those that put in place barriers—such as onerous voter ID requirements—usually have lower turnout.

The 2020 election featured the highest turnout in over a century. Overall, two-thirds of eligible voters casted a ballot despite the COVID-19 pandemic. The turnout rate varied by state, from a low of 55 percent in Oklahoma to a high of 80 percent in Minnesota. In the 2018 midterm elections, overall half of eligible voters cast a ballot. That was the highest turnout rate for a midterm election in over a century.

Voter registration: Several policies can improve voter registration procedures. Same-day voter registration allows people to register and vote at the same time. In 2018, seven of the ten states with the highest turnout offered same-day voter registration. On the other hand, eight of the ten states with the lowest turnout ended voter registration four weeks prior to the election. In the 2020 presidential general election, 21 states offered same-day registration.

Automatic voter registration adds people to voter rolls unless they opt out of doing so. This is stronger than asking them to opt into registering to vote when they apply for a driver’s license, as the so-called Motor Voter Act allows. Preregistration of 16- and 17-year-olds can also increase participation.

Online voter registration gives people the opportunity to register on the internet. Election officials then review and validate registrations before adding people to the election rolls. Online registration saves money, improves security, decreases errors, and makes it easier to change a voter’s name or address.

Exact match laws: Exact match voter registration laws require the voter registration to match perfectly the records from the Department of Motor Vehicles, the Social Security Administration, or both. Ohio and Georgia, in particular, have vigorously enforced this requirement. If the files do not match—for example, because one uses a middle name and the other a middle initial—the voter must re-register prior to casting a ballot. In 2018, Georgia blocked over 51,000 voter registrations as a result of this type of law. About 80 percent of blocked registrations were for African Americans, Latinos, or Asian-Americans.

Unnecessary purging of voter registration lists: States regularly purge voters who have moved out of state or have died. However, as of 2020, nine states have adopted aggressive “use it or lose it” laws. These states remove the registrations of voters who have not voted in a certain number of recent elections. Between 2014 and 2016, some 16 million voters were removed from the rolls as a result of these laws. These purges are much more likely to be carried out in communities of color. In addition, given historic voter suppression techniques, people from these communities may be less likely to vote regularly. Thus, even if these laws do not directly target people of color, aggressive purging of voter registration lists disproportionately disenfranchises them.

Another problem is that voters can be purged in error. For example, more than 40,000 of the 235,000 voters that Ohio had planned to purge in 2019 were wrongly added to the list. Further, these practices are unnecessary. Thirty states plus the District of Columbia (D.C.) use data from the nonpartisan Electronic Registration Information Center to improve the accuracy of their voter registration rolls without discriminatory effects. The organization provides participating states with information on who has moved or died, who has a duplicate registration, and who is potentially eligible to vote but has not yet registered.

Voter identification (ID) requirements: Federal law imposes voter ID requirements in some circumstances. First-time voters who register by mail or online must provide verifying information, such as a driver’s license number. If they do not, they must prove their identification at the polls. They can do so with an approved document indicating their name and address.

Some states impose more onerous voter ID requirements. Many require voters to show a government-issued photo ID before voting. Obtaining such an ID typically requires a birth certificate, passport, or other official documentation. As of 2020, 36 states require some form of ID at the polls, while 18 mandate a photo ID. Proponents say voter ID laws help combat fraud. However, studies show that voter impersonation fraud is extremely rare.

Opponents note that many do not have the requisite ID. Those who do not are disproportionately from historically disadvantaged racial and ethnic groups. A 2017 North Dakota voter ID law is one example. According to a federal district court, after the law was enacted, 19 percent of Native Americans in the state did not have a qualifying ID. That compared with less than 12 percent of other voters who did not have one. In addition, African Americans who grew up in the South under Jim Crow may never have been issued a birth certificate. This is one of the documents often required by voter ID laws. Courts have struck down some state restrictions because of their discriminatory effects. For example, North Carolina's voter ID law was struck down in 2017. That voter ID law rejected the forms of identification used disproportionately by African Americans.

Voting procedures and tools: Offering a diversity of voting options maximizes the chance for people to exercise their right to vote. Early voting allows all voters to cast a ballot ahead of the election. Voters can do so in person or by mail (with the option to hand-deliver ballots to drop boxes). Early voting by mail is sometimes called no-excuse absentee voting. States can make casting an absentee ballot more convenient by removing signature and notarization requirements. They can also provide a range of convenient ballot drop-off sites and prepaid postage for those who mail them. States also can streamline the process to allow voters who initially requested an absentee ballot to surrender or cancel the ballot and vote in person instead. Some studies have found that early voting is not associated with higher turnout. Even so, early in-person voting is particularly important for some populations. For example, African-American and Latino voters are more likely to utilize it than white voters.

The location and number of polling places are also important. In some areas, polling places are located equitably across neighborhoods. This gives everyone equal access to the polls. In others, certain neighborhoods have relatively few polling places. It can make it difficult for some people to vote. Some voters find it helpful to be able to vote in any precinct in their community, rather than only the one where they are registered. This is especially important when a neighborhood does not have enough polling places to accommodate the number of voters, and lines are especially long. In 27 states, provisional ballots are rejected if a registered voter casts a ballot in the incorrect precinct. This can easily happen when several precincts are housed in one polling place.

Polling places also need adequate staff and equipment. Outdated voting machines increase the risk of accidental failures and malicious hacking. Their continued use can lead to long lines and lost votes during an election. This potentially damages voter confidence. A 2019 report from the Brennan Center found that 45 states were using machines that are no longer manufactured. Officials in 31 states said they should have replaced their equipment before the 2020 election, but two-thirds reported they did not have adequate funds to do so. In 2019, 12 states still used paperless electronic machines in at least some locations despite their vulnerability to cyberattacks.

Voting procedures in emergencies: Voting can be especially challenging during emergencies. These include major weather events, such as hurricanes, and public health crises, such as pandemics. Voters of all ages, backgrounds, and ability levels may need greater flexibility to vote during emergencies. States can help provide this flexibility by, for example, sending all registered voters and absentee ballot. They can also allow voters to cast their ballots at any location in the area. In public health crises, states requiring an excuse to obtain an absentee ballot can consider concern about disease transmission a valid excuse.

Emergencies can cause many more people to cast absentee ballots than normal. For example, nearly half (46 percent) of votes in the 2020 election—conducted during the COVID-19 pandemic—were cast using absentee ballots. This was about double the rate of absentee ballots cast in the 2016 presidential election. Because counting absentee ballots is slower than counting in-person ballots, a surge in absentee ballots can delay results. Such delays can frustrate voters and even lead to charges of fraud, which is exceedingly rare. Policymakers can strengthen confidence in election procedures and results. For example, some states allow election officials to begin counting absentee ballots ahead of election day. In addition, the federal government can provide funding to help states pay for the cost of printing and processing the large number of absentee ballots.

During public health emergencies, voters and poll workers may be especially concerned about safeguarding their own health. Election officials can put in place procedures to increase safety. For example, during the 2020 election, some polling places increased sanitation procedures, encouraged mask use, and promoted physical distancing.

Voters with disabilities: Federal laws mandate accessibility in the registration and voting processes. Polling places must be accessible. They also require better outreach to older adults and people with disabilities.

About ten percent of American adults (some 23 million people) have conditions limiting mental functioning, including dementia or other cognitive impairments. Many of them have an electoral preference and are capable of voting. Voters with cognitive impairments who want to vote but need assistance can receive it. For example, they can receive help reading or filling out a ballot. Most states have constitutional provisions barring people with various kinds of mental impairment from voting. The language used in these provisions is often imprecise and scientifically outdated. State voting and guardianship laws often use updated and more nuanced definitions that narrow the broad exclusions used in their constitutions. However, they can also vary significantly in this regard. The capacity to vote is most likely to be raised and determined in guardianship proceedings. Only a few state guardianship laws specifically require a court to determine whether an individual has the capacity to vote in a guardianship proceeding. However, several state laws allow people under guardianship to retain all legal and civil rights not explicitly removed. With strict parameters, this safeguard may avoid inappropriately depriving people of the right to vote based on mental impairment. The American Bar Association has recommended that state guardianship laws explicitly express that the right to vote is retained unless a court finds after due process that the person cannot communicate, with accommodations if necessary, a specific desire to participate in the voting process. In 2017, this recommendation was included in the Uniform Law Commission’s Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (see also Adult Guardianship).

About 1.4 million people live in skilled-nursing facilities. They may face challenges in exercising their right to vote. Mobile voting machines can increase the ability of nursing home residents to vote. The voting machines can be brought to these facilities. There, trained local election officials supervise the voting process.

Voters in the District of Columbia: The Twenty-Third Amendment provides D.C. residents the right to vote for president. However, they still do not have the right to vote for representation in Congress. D.C. has no senators. In the House of Representatives, it has a delegate to Congress, but the delegate does not have the right to vote outside of committee. This is a unique voting-rights barrier for D.C.’s over 700,000 residents. D.C.’s population is higher than that of several states. And its residents perform all the obligations of U.S. citizenship, such as paying federal income taxes and serving in the armed forces.

College students: In recent years, many states have passed laws making it harder for college students to vote in the jurisdictions where they attend school. For example, states that require utility bills or driver’s licenses to vote can disenfranchise college students.

State ballot initiatives: State ballot initiatives allow citizens to exercise power over the legislative process. They sometimes decide contentious issues this way. But the process may also be subject to abuse. Signatures must be collected to place an initiative on the ballot. Fraudulent signatures and misrepresentation by some who circulate petitions are a few examples of abuse. Another challenge is technical, confusing, or misleading ballot language. This can make it difficult for voters to cast informed votes. Moreover, the lack of legislative oversight makes it impossible to correct a poorly drafted measure.

Several states have passed laws to prohibit fraud and protect the integrity of the ballot initiative process. But concerns remain. The large sums of money involved can favor special interests or those with deep pockets. In California alone, an estimated $20.5 million was spent on ballot initiatives in 2018. It now costs an average of $2.9 million to collect the number of signatures required to place an initiative on the California ballot. The process was originally intended to shift the balance of power back to the citizens, but that steep price favors moneyed interests over citizens’ groups.

Alternative voting models: Some states offer an alternative to the traditional electoral systems. For example, rather than holding traditional party-specific primaries, some states allow open primaries. Open primaries allow voters to choose which primary they would like to vote in, regardless of party affiliation. (They can still only vote in one primary election.) This can lead to decreased partisanship and increased participation. Twenty-two states have open primaries.

Another model is the runoff system, which can be used in a primary or general election. Under this model, if no candidate receives a majority of support in an election, a second election occurs between the top two finishers. Ranked-choice voting is another alternative. Voters rank candidates by order of preference to ensure that the winning candidate secures a majority of the vote. If no candidate wins an outright majority, the candidate with the fewest first-preference votes is eliminated, and the results are rerun, with the process continuing until a winner with majority support is declared. These voting systems can help avoid a situation where the winner is opposed by most voters because opponents’ votes are split. The shift away from zero-sum elections may encourage more positive campaigning and help increase voter participation.

Electoral College reform: The Electoral College is used to determine the outcome of U.S. presidential elections. Voters cast their ballots for a slate of electors, who then elect the president and vice president. The formula used to determine the number of electors gives states with smaller populations relatively more electoral power. In five presidential elections, the winner of the Electoral College has been different from the winner of the national popular vote. The National Popular Vote Interstate Compact is a potential agreement among some states to award all of their electoral votes to the presidential candidate who wins the national popular vote. As of 2020, it has been enacted in 15 states and D.C. These jurisdictions represent 196 electoral votes. The agreement will only go into effect when states with at least 270 total electoral votes, the number needed to win the presidency, adopt it.

VOTING: Policy

VOTING: Policy

Uniform standards

Policymakers should establish and enforce uniform standards to safeguard the integrity of the electoral process. All Americans should be able to exercise their right to vote freely, easily, and safely. These uniform standards should ensure that:

  • ballots and voting systems are designed so voters readily and fully understand them and have full access to them;
  • voters are thoroughly informed about the mechanics of voting;
  • voting systems minimize human and mechanical error and are subject to effective monitoring (see also Data Security);
  • sanctions exist against fraud and discrimination in the voting system; and
  • the voting process is not burdensome, does not hamper access; and is based on eligibility requirements that do not disenfranchise voters.

Policymakers should ensure adequate funding for upgrading and protecting critical voting infrastructure.

Election officials should conduct pre-election vulnerability analyses and post-election audits to look for evidence of tampering. This should be done in conjunction with the Department of Homeland Security.

Election officials should consult with cybersecurity experts to secure:

  • voter registration databases;
  • voting machines, including requiring paper ballot backups; and
  • state government websites that publish vote tallies.

Policymakers should also require audits comparing machine-generated results with the paper record.

Voter registration

Policymakers should maximize voter registration, including through automatic voter registration systems. They should build easy-to-use online voter registration systems. Congress should set national standards for the system and provide sufficient funding to enable states to make necessary upgrades.

States should:

  • adopt fair, simple, and readily accessible voter registration procedures, including online and same-day registration (or otherwise reducing the time between registration and voting);
  • reject onerous proof of identity or citizenship requirements; and
  • establish uniform, nondiscriminatory rules for accurately purging voter registration lists. These rules should ensure voters remain on the rolls when they move within the state. Voters should not be removed because they have not voted in recent elections, even if they have not responded to removal notices. If such programs are enacted, they should include measures designed to avoid removing eligible voters from voter registration lists.

States should facilitate the ability of college students to register to vote where they attend school.

Voter identification requirements

Policymakers should prohibit ID requirements that discourage or prevent citizens from voting. The name listed on a voter’s government-issued ID should not be required to match exactly the name on the voter registration roll. Any identification requirements should be no more extensive than necessary.

Policymakers should support outreach to educate, inform, and assist voters in meeting identification requirements. For example, they can provide financial and logistical assistance with assembling necessary background documents.

Voter participation

Policymakers should encourage and promote maximum participation in the electoral process. They should adopt voter registration and voting systems and procedures that expand the range of voting options.

These include:

  • allowing same-day voter registration,
  • opening additional polling locations,
  • establishing vote-by-mail programs (including no-excuse absentee voting by mail), and
  • allowing early voting (including no-excuse absentee in-person voting).

Policymakers should improve the administration of provisional voting and increase the scrutiny and transparency of the provisional voting process.

Congress should update the formula used by the Voting Rights Act to determine which jurisdictions should be covered by preclearance provisions.

Policymakers should also permit preregistration of 16- and 17-year-olds.

States should make certain that poll workers are adequately trained, compensated, and equipped with tools that ensure seamless voting on election day.

When needed, policymakers should create voting materials in languages other than English.

District of Columbia voting rights

Congress should guarantee the residents of the District of Columbia full rights to vote for representation in Congress.

Voter fraud

Any procedures to prevent and detect voter fraud should be fair, nondiscriminatory, and free of partisan bias. Their nature and scope should be proportional to evidence of actual or attempted fraud. They should not be based on speculation regarding the theoretical possibility of fraud.

 

Older voters and voters with disabilities

Qualified voters should not be excluded from voting because of:

  • a medical diagnosis;
  • disability status; or
  • type of residence, including residing in a long-term care facility.

Policymakers should improve access to voting for residents of long-term care facilities. This includes permitting and encouraging mobile polling.

Polling places must be accessible to people with disabilities, including people who use wheelchairs. People with disabilities should be permitted to seek expedited judicial remedies when polling places are inaccessible. States should be required to submit accessibility plans using a standardized assessment instrument. Polling places should meet accessibility criteria at least as stringent as the FEC’s model criteria.

Policymakers should develop best practices for ballot design to maximize access. Instructions, signage, and other communications regarding elections should also be accessible. The Department of Justice should expand its monitoring and oversight to ensure accessibility and privacy for voters with disabilities.

Policymakers should put in place policies to assist individuals with disabilities in voting. This includes people with cognitive impairments. Protections should be put in place to prevent those who assist voters with disabilities from influencing their vote.

Individuals with mental incapacity should, by default, retain their right to vote (see also Adult Guardianship). Any restrictions on voting rights should require a court of competent jurisdiction to determine that there is clear and convincing evidence that:

  • the voter has been afforded appropriate due process protections; and
  • the voter cannot communicate, with appropriate accommodations, a specific desire to participate in the voting process.

Ballot initiatives

States should revise ballot initiative processes to curb the undue influence of special interests with access to significant financial resources. States should also enact policies to decrease fraud and deceptive practices.

Primaries

State and local policymakers should:

  • ensure that their primary and electoral systems maximize voter participation,
  • eliminate the harmful effects of partisanship, and
  • consider putting in place alternative voting models. This includes open primaries, nonpartisan blanket primaries, and ranked-choice voting.

The Electoral College

Federal and state policymakers should maintain fairness in the Electoral College. They should maximize voter participation and encourage public engagement with candidates and issues. Electoral College reforms should be nonpartisan and consistent with the principle of one person, one vote. They should also ensure equal access for people from historically disadvantaged racial and ethnic groups.

States allocation of Electoral College votes should be open, accountable, and timely.