Voting

Background

The right to vote, along with full and fair representation, is the most basic of all political rights. Yet voting can be difficult. Recent elections have revealed many flaws and practices that make it more difficult for citizens to vote. These include registration impediments; long lines; burdensome and unnecessary voter ID requirements; lack of early voting opportunities; lack of mobile polling for voters living in long-term care facilities; inadequate facilities, equipment, and staff at polling places; errors and lack of transparency in the purging of voter registration lists; language barriers; and problems with the use and counting of provisional ballots, among others.

The effects of these problems are not insignificant. For example, a 2015 study by the Cal Tech/MIT Voting Technology Project estimates that long lines deterred at least 730,000 Americans from voting in the 2012 elections. Further, Americans spent 23 million hours in line to vote in 2012, costing an estimated $544 million in lost productivity and wages. These types of problems often disproportionately affect people from racial and ethnic groups that have experienced discrimination, women, older adults, and people with disabilities. For example, a 2016 study by the Joint Center for Political and Economic Studies found that African-American voters experienced twice the average wait times as white voters. In the 2012 presidential election, a number of polling places in communities with racial and ethnic groups that have experienced discrimination endured wait times up to seven hours. Despite these challenges, there are proven practices and policies that can help avoid these problems, including expanded early voting (in-person and by mail) and minimum standards for allocation of voting machines and poll workers.

The 2016 election was the first presidential election in 50 years without the full protections of the federal Voting Rights Act (VRA). In addition, 15 states—Alabama, Arizona, Georgia, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin—had restrictive voting rules in place for the first time in a presidential election. The range of new rules included burdensome photo ID requirements, reductions in early voting, and extra hurdles in the registration process, among others. Overall, 20 states have put restrictive rules in effect since the 2010 midterm elections.

Yet since 2013, state bills that would increase voting access have outpaced those that would restrict access, in terms of both introduction and passage, according to the Brennan Center for Justice. In particular, the bipartisan introduction and adoption of legislation to modernize voter registration systems—including automatic registration at Departments of Motor Vehicles (DMVs) and other agencies and the adoption of online registration—has accelerated. Further, both federal and state courts have recently struck down a number of restrictions passed by states since 2010 on the basis of their discriminatory effects on people from racial and ethnic groups that have experienced discrimination and other voters. Litigation is expected to continue in a number of these cases. But if these decisions are upheld, they offer the hope that some of the most egregious burdens placed on current and prospective voters by these restrictions will be either reduced or eliminated in future elections.

User-friendly, less onerous voting and registration procedures would encourage more Americans to vote. Further, maximizing participation would help strengthen democracy, particularly as the nation grows more diverse in terms of race, color, gender, religion, income, physical ability, national origin, and age.

Voter identification requirements (voter ID)—Congress passed the Help America Vote Act (HAVA) in 2002, requiring states to meet uniform standards in federal elections. Under HAVA, states must have centralized voter lists and provide provisional ballots. Further, they must permit voters to verify and correct their ballots and must meet accessibility rules for voters with disabilities. HAVA also imposed stricter voter ID requirements.

In 2008 the Supreme Court, in Crawford v. Marion County Election Board, upheld an Indiana voter ID statute even stricter than HAVA, requiring photo identification for in-person voting. The Indiana Supreme Court later upheld the law after a state constitutional challenge. These laws raised serious concerns about discouraging and restricting access to voting by otherwise eligible voters who lack or would have great difficulty in obtaining documents like birth certificates in order to obtain the required form of identification to vote, including older voters, voters from racial and ethnic groups that have experienced discrimination, voters of low incomes, and voters born outside the US. Although legal precedent requires these states to provide free photo IDs to eligible voters who do not have one, the IDs are not equally accessible to all voters. The Brennan Center for Justice estimates that 11 percent of eligible voters would have to travel to a state ID-issuing office to obtain proper photo identification. And many of these offices have limited hours and/or would require lengthy and expensive trips to reach. For example, a federal court in Texas found that more than 600,000 residents lack the forms of ID necessary to vote and many people would be required to travel up to 250 miles round trip to obtain one, an especially onerous burden for people with low incomes.

Using its preclearance authority under VRA, the US Department of Justice denied preclearance to voter ID laws in Texas and South Carolina. But in Shelby County v. Holder, the US Supreme Court struck down the coverage formula in the VRA, which determined the jurisdictions in which preclearance was required. Thus, until a new coverage formula is put in place, preclearance is no longer required in areas of the country in which people from racial and ethnic groups that have experienced discrimination historically have been denied equal voting rights.

Nevertheless, recent court decisions enjoined, weakened, or blocked a number of these laws including those in North Carolina, North Dakota, Texas, and Wisconsin. In the North Carolina, Texas, and Wisconsin cases, federal courts struck down the strict photo ID laws of these states finding them racially discriminatory. Texas agreed to allow voters without the proper photo ID to cast a regular ballot in November 2016 by signing a declaration that they have a “reasonable impediment” to obtaining one and showing any of a broad array of alternative forms of identification. North Carolina and Wisconsin are appealing the decisions in their cases. North Dakota decided not to appeal a federal court ruling enjoining its strict photo ID law and will allow a broad range of IDs to cast a ballot. But nine states will still have photo ID laws in place more restrictive than what was in place for the 2012 presidential election, according to the Brennan Center for Justice, and some voters may still have difficulties obtaining appropriate identification to meet the requirements.

In view of these uncertain circumstances, another key issue is how to best help eligible voters in those states meet new identification requirements. Such efforts may include transportation to and from registration offices and assistance (including financial assistance) with assembling necessary background documents such as birth certificates.

New voting tools and procedures—practices like same-day registration, early voting (in-person and by mail), and preregistration of 16- and 17-year-olds can greatly increase voter participation. Four of the five states with the highest voter turnout in the 2012 presidential election offered same-day registration. Average turnout was more than 10 percent higher in the ten states (and the District of Columbia) that now offer it.

Similarly, studies show that more voters are choosing to vote early when given that option. In 2012, nearly one-third of voters cast their ballot before Election Day either by mail or in person, double the rate of the 2000 election. Early in-person voting is particularly important to African-American and Latino voters, who are more likely to utilize it than white voters.

However, starting in 2011, a number of states substantially reduced their number of early in-person voting days. Studies show that such cutbacks disproportionately affect African-American and Latino voters. And in a North Carolina case, a federal court of appeals recently enjoined that state from continuing similar reductions in early in-person voting. Currently, only 14 states do not give voters some option for casting ballots (early voting and/or no excuse absentee ballot) before election day, according to a recent study by Demos.

The share of young voters (age 18–29) who are registered to vote is lower than that of all eligible voters. Preregistration, available in eight states and the District of Columbia, can reduce this disparity. One important tool is the National Voter Registration Act of 1993 (NVRA)—commonly known as the Motor Voter Act—which allows anyone applying for a driver’s license to also register to vote. The Pew Making Voting Work project found that young registrants, particularly those of racial and ethnic groups that have experienced discrimination, vote in significantly higher numbers than those who register after age 18.

Computerized registration has many benefits, including increasing the share of registered voters, saving money, increasing security, decreasing errors, and making it easier to change a voter’s name or address.

Thirty-eight states now use electronic and/or online voter registration, nearly double the number from five years ago according to a 2015 report from the Brennan Center for Justice.

Oregon, California, Connecticut, Vermont and West Virginia have enacted automatic registration systems at their DMVs. These systems automatically register eligible citizens unless they affirmatively indicate that they do not want to register.  28 states and the District of Columbia are considering such a system.

Experience indicates that automatic registration is likely to dramatically increase voting participation. In 2016, Oregon found that an average of 15,375 voters joined the rolls through automatic registration, compared with an average of about 4,000 a month under the old system. Some states like Illinois are considering legislation that would extend auto registration to agencies beyond the DMV, including social service and disability offices. If the Illinois bill is signed into law, some 62 million Americans nationwide will be covered by automatic registration.

Although automatic registration holds the promise of increasing voting participation, the continuing use of voting machines approaching obsolescence increases the risk of failures that can lead to long lines and lost votes during an election. According to a new report from the Brennan Center for Justice, 43 states were expected to use electronic voting machines in 2016 that were at least ten years old and close to the end of their expected service life. Machines in 14 states were expected to be 15 or more years old, and nearly every state was expected to use some machines that are no longer manufactured, which makes finding replacement parts increasingly difficult. Although election officials in 31 states have indicated they want to purchase new voting machines within the next five years, in 22 of those states they did not know whether funding would be available to pay for them.

As of 2013, Arizona, Alabama, Georgia, and Kansas have sought to require that anyone seeking to register to vote by mail provide documentary proof of citizenship. AARP Foundation Litigation and other groups challenged this effort in Arizona. In Arizona v. Inter Tribal Council of Arizona, the US Supreme Court ruled in 2013 that the requirement violated NVRA with respect to voters using the National Mail Voter Registration Form (the “Federal Form”) for federal elections.

Arizona and Kansas have sued to require the US Election Assistance Commission to include such requirements in state-specific instructions on the Federal Form. In January 2016, the Executive Director of the Commission announced that documentary proof of citizenship would be added to the form instructions for Kansas as well as Georgia and Alabama. That action is being contested in an ongoing lawsuit. Separately, a federal judge ruled that documentary proof of citizenship could not be required for Kansas voters who register at DMV offices under the federal “Motor Voter” law. However, Kansas is attempting to prohibit individuals who register at DMV offices and do not provide documentary proof of citizenship from voting in state and local elections. This “dual registration” system was temporarily blocked by a Kansas state court for the August 2016 primary election, but the requirement still remains in effect for those using the state voter registration form. Meanwhile, Arizona’s state registration form still retains the documentary proof of citizenship provision.

Similarly, some states have tried to impose onerous registration and reporting requirements and penalties on community-based voter registration drives. In some cases, the courts have set aside such requirements. Nonetheless, in 2016, Arizona made it more difficult for civic groups to assist older adult communities with absentee ballots by making it a felony for anyone other than a family/household member or caregiver to collect and submit a voter’s absentee ballot. Wisconsin eliminated “special registration deputies” who were previously permitted to verify residency when they collected or submitted registration forms.

Voters with disabilities—in addition to HAVA and NVRA, three statutes—VRA, the Voting Accessibility for the Elderly and Handicapped Act of 1984, and the Americans with Disabilities Act—promote the right to vote. They do so by mandating improved access to registration and polling places and better outreach to older Americans and people with disabilities.

The requirements of the Voting Accessibility for the Elderly and Handicapped Act expired in 1995, so the Federal Election Commission (FEC) can no longer require reporting on obstacles to voting by older people and people with disabilities. But the law’s voluntary state-reporting guidelines remain. A 2008 survey by the Government Accountability Office (GAO) found that even though polling places are becoming more accessible, more work is needed. In 2008, GAO estimated that 27 percent of polling places had no impediments between the parking spaces and the voting area, up from 16 percent in 2000. Another 45 percent had potential impediments but offered curbside voting. And 27 percent had possible impediments and no curbside voting. The most common problems were steep ramps or curb cuts in the parking area, poor surfaces on paths leading to the building entrances, and door thresholds more than half an inch high. Further, 46 percent of polling places had characteristics that could make it difficult for voters with disabilities to cast a private or independent vote, such as voting stations unable to accommodate wheelchairs. GAO recommended that the US Department of Justice expand its oversight in this area.

Voting-rights laws also need to address mental disabilities. More and more Americans have dementia or other cognitive impairments. But many years may elapse between the onset of dementia and seriously impaired decisionmaking. Therefore, legislation must protect vulnerable populations’ access to the polls and guard against any manipulation of their vote. State constitutions and laws vary widely regarding the level of mental capacity needed to vote. All but 12 states have constitutional provisions barring people with various kinds of mental impairment from voting, and the categories of excluded individuals are sweeping and imprecise. State voting and guardianship laws also vary dramatically in this regard and often appear inconsistent with constitutional provisions. Only a few statutes and cases require a court to determine whether an individual has the capacity to vote. Yet such a safeguard, with strict parameters, may be needed to avoid inappropriately depriving people of the right to vote based on mental impairment (see Chapter 12, Personal and Legal Rights, for a discussion of guardianship laws and procedures).

About 1.4 million people live in nursing facilities and may face challenges in exercising their right to vote. In its 2008 report, the GAO found that 29 out of 92 localities surveyed had designated long-term care facilities as polling places. Another option is mobile polling stations, which travel to voters in long-term care facilities or other sites. The American Bar Association recently urged the establishment of such mobile stations, supervised by trained teams of local election officials and others involved in residents’ care. Vermont launched a mobile polling pilot program during the 2008 general election. Facility staff and election officials reported that mobile polling made voting easier for residents, reduced workload for election officials, and minimized the threat of fraud or coercion. But for these programs to work, the polling states must accept alternative forms of identification, because residents are less likely to have a driver’s license or other standard IDs.

Voters in the District of Columbia—the US Constitution contains a unique voting-rights barrier for the District of Columbia’s more than 681,000 residents, a population greater than that of several states. The District’s residents perform all the obligations of US citizenship, such as paying federal income taxes and serving in the armed forces. But even though the Twenty-Third Amendment to the Constitution allows those citizens to vote in presidential elections, they are not fully represented in Congress. Such underrepresentation is inconsistent with current federal programs encouraging individuals employed in the District of Columbia to also live in that city.

State ballot initiatives—in recent years, state ballot initiatives have been used to decide sometimes volatile issues. The trend has given rise to fraudulent signatures and misrepresentation by some who circulate petitions. Several states have passed laws to prohibit fraud and protect the integrity of the ballot initiative process. But there are concerns about the sheer number of initiatives being placed on ballots, the large sums of money involved, the initiatives’ impact on state legislatures, and the lack of oversight. In California alone, an estimated $452 million was spent on ballot initiatives in 2016. And it now costs an average of $2 million to collect the number of signatures required to place an initiative on the California ballot. That steep price favors moneyed interests over citizens’ groups, even though the process was originally intended to shift the balance of power back to the citizens. Finally, the lack of legislative oversight makes it impossible to correct a poorly drafted initiative, and the high volume of initiatives often leads to voter confusion and misinformation.

Primary and Electoral College reform—some advocates are proposing that all states hold open primaries where voters can choose privately in which primary to vote. . They argue that this will lead to more voter participation and less political polarization and gridlock in state legislatures. Most primaries are party-specific, open only to registered members of that party or unaffiliated voters. But 15 states already have open primary systems; voters can choose any party ballot but must vote only for that party’s candidates. A number of states have a runoff system. In Washington, for example, voters can choose candidates from either party, and the top two vote getters, regardless of party, advance to a general election runoff. The US Supreme Court recently upheld this process in Washington State Grange v. Washington State Republican Party et al., and California voters have passed a ballot initiative instituting a similar system.

Winner-take-all statutes in 48 states require that a state’s electoral votes all go to the presidential candidate who wins the state’s popular vote. That is why the electoral-vote winner has been different from the popular-vote winner in four presidential elections. But critics of winner-take-all argue that presidential candidates can ignore states where they are comfortably ahead or far behind. In 2016, two-thirds of general election campaign events were held in just six states, and 94 percent of the 2016 events were concentrated in only 12 states. Under the National Popular Vote plan, states would mandate that all of their electoral votes go to the national popular-vote winner. Proponents say that would encourage voter participation and would ensure that every vote counts equally and that campaigns better reflect national concerns. The plan has been approved in the District of Columbia, California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington. Together they have 165 electoral votes, or 61 percent of the 270 needed to activate the plan.

Voting: Policy

Uniform standards

In this policy: FederalLocalState

Uniform standards should be established and reinforced with adequate funding in order to safeguard the integrity of the election process and afford all Americans the ability to express their electoral preference. This system of standards should ensure that:

  • ballots and voting systems (including those for provisional voting) 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 Chapter 11, Financial Services and Consumer Products—Security of Connected Devices),
  • strong criminal sanctions against fraud and civil sanctions against discrimination in the voting system, including registration, are present; and
  • the voting process is not burdensome, does not hamper access, and contains eligibility requirements that do not disenfranchise voters.

Promoting voter registration

In this policy: FederalState

Establishing a fully functional, online, and portable system to maximize voter registration should be a national priority. Congress should establish national standards for the system and provide sufficient funding for states to make necessary upgrades.

States should:

  • adopt fair, simple, and readily accessible voter registration procedures, including online registration;
  • ensure full compliance with the NRVA of 1993, including provision of registration opportunities by mail, at motor vehicle departments, and at public-assistance agencies including but not limited to Indian Health Services, US Citizenship and Immigration Services, and Affordable Care Act health insurance marketplaces;
  • reject onerous proof of identity or citizenship requirements;
  • reduce the use of provisional voting through improved voter registration procedures and by removing impediments to casting regular ballots;
  • develop and publish uniform, nondiscriminatory rules for purging voter registration lists; provide timely public notice of an impending purge; develop and publish rules for individuals to prevent or remedy their erroneous inclusion in an impending purge; stop using failure to vote as a trigger for a purge; develop directives and criteria with respect to the authority to purge; preserve records of purged voters; and make purge lists publicly available, particularly at polling places;
  • ensure a high degree of certainty that names on a purge list belong there, establish strict criteria for matching voter lists with other sources, audit purge source lists, and monitor duplicate removal procedures; and
  • ensure that voters stay on the rolls when they move within the state.

Voter identification requirements

In this policy: FederalState

Congress should oppose, and states should not impose, identification requirements that discourage or prevent citizens from voting.

Identification requirements should be no more extensive than necessary to address verified evidence of electoral fraud.

Congress should restore enforcement of preclearance provisions under the VRA, including voter ID laws.

Improving voter access and maximizing participation

In this policy: FederalLocalState

Congress, states, and localities should adopt voting systems and procedures that encourage and promote maximum participation in the electoral process by expanding the range of voting choices. This includes additional and new polling locations, vote-by-mail programs, early voting, same-day registration and voting, and secure online voting.

Congress and the states should:

  • set standards for the number of voting machines and election workers to help avoid long voter lines;
  • adopt a minimum early voting standard (at least 15 days of no less than four uniform hours each day in publicly accessible sites);
  • allow an individual on election day to register to vote and allow already registered voters to update or correct information;
  • accept voter pre-registration of 16- and 17-year- olds;
  • provide funds for adequate numbers of backup paper ballots as well as trained staff to facilitate voting; and
  • review and evaluate the effectiveness of the Help America Vote Act and make improvements as needed. States should provide a fail-safe mechanism of election day registration for people who are missed or whose names are erroneously purged from voter rolls.

The federal government and states should improve the administration of provisional voting and increase the scrutiny and transparency of the provisional voting process. States should eliminate “wrong precinct” rules for races that are not precinct-specific and should permit voters to submit regular ballots upon completion of a sworn statement as to their identity subject to criminal penalties for perjury.

Election officials should give would-be voters provisional ballots as legally required, rather than turning them away because their names are not found on the voter rolls and same-day registration is not available.

To improve access to voting for residents of long-term care facilities, the US Department of Health and Human Services should:

  • require facilities to develop a policy on voting;
  • include in the Guidance to Surveyors for Long-Term Care Facilities and the Survey Protocol for Long-Term Care Facilities the requirement to ask about and record the facility’s policy on voter registration and voting; and
  • clarify that Health Insurance Portability and Accountability Act (HIPAA) regulations do not infringe upon the ability of election officials to obtain residents’ names in connection with their authority to conduct and monitor elections.

States, localities, and non-profit organizations should support outreach efforts to educate, inform and assist voters in meeting identification requirements.

Poll workers

In this policy: State

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

Voter fraud

In this policy: State

State 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 and not speculation regarding the theoretical possibility of fraud.

Enforcement of ID requirements and use of provisional ballots should not impede voter registration, turnout, or participation.

Older voters and voters with disabilities

In this policy: FederalLocalState

Governments should ensure that no governmental entity excludes any otherwise qualified person from voting on the basis of medical diagnosis, disability status, or type of residence including long-term care facilities.

Federal, state, and local governments should improve the administration of elections to facilitate voting by all individuals with disabilities, including people with cognitive impairments, by:

  • requiring the availability of absentee ballots for individuals with disabilities;
  • allowing individuals with disabilities to request and receive registration forms and absentee ballots by mail or electronically;
  • studying and developing best-practice guidelines for ballot design to maximize access;
  • adapting their laws, practices, and technologies to permit and encourage mobile polling and provide adequate funding (see Chapter 11, Financial Services and Consumer Products—Security of Connected Devices);
  • ensuring that instructions, signage, and other communications regarding elections are accessible;
  • permitting sufficient alternative forms of verifying voter identification to facilitate registering and voting;
  • ensuring that polling places are free of physical barriers that inhibit access by older people and people with disabilities; and
  • making extra efforts, such as equipping polling places with large-font instructions for the visually impaired and telecommunications devices for the hearing-impaired, as necessary, to assist people with disabilities.

Congress should require states to submit accessibility plans and to allow affected parties to seek expedited judicial remedies when polling places are inaccessible. To ensure correct and accurate data on polling-place accessibility, all jurisdictions should use a standard assessment instrument.

Congress should restore the reporting requirements in the Voting Accessibility for the Elderly and Handicapped Act and enhance the enforcement authority of FEC to ensure polling-place accessibility.

Polling places should meet accessibility criteria at least as stringent as the FEC’s model criteria.

The Department of Justice should expand its monitoring and oversight to ensure accessibility and privacy for voters with disabilities.

Limitations on mental-incapacity exclusions

In this policy: Local

State constitutions and statutes that allow people with mental incapacity to be barred from voting, including guardianship and election laws, should explicitly state that the right to vote is retained, except by court order where the following criteria have been met:

  • the exclusion is based on a determination by a court of competent jurisdiction;
  • the voter has been afforded appropriate due-process protections;
  • the court finds that the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process; and
  • the findings are established by clear and convincing evidence.

District of Columbia voting rights

In this policy: Federal

Congress should guarantee the citizens of the District of Columbia full representation in Congress.

Ballot initiatives

In this policy: State

States should support revisions to ballot-initiative processes that encourage legislative responsibility and oversight and that curb the undue influence of special interests with access to significant financial resources.

States should ensure the integrity of ballot-initiative processes by measures that include establishing and enforcing procedures against fraud and deceptive practices.

Public education

In this policy: FederalLocalState

Federal, state, and local governments should educate and engage the public directly. They should also encourage nonprofit and civic organizations to educate and inform the public in a nonpartisan manner about issues affecting all age groups and about candidates’ positions.

Voter registration

In this policy: FederalLocalState

Federal, state, and local governments should encourage and support nonpartisan efforts to increase voter registration and turnout, including community-based registration drives. They should reject onerous registration, reporting requirements, return deadlines, and excessive penalties.

Primary and electoral college reform

In this policy: LocalState

States and localities should ensure that their primary and electoral systems maximize voter participation and interest and eliminate the negative effects of partisanship on state and local government.

State laws governing the allocation of Electoral College votes should meet the following criteria:

  • Voter Participation and Civic Engagement—maximize voter participation in the electoral process while encouraging public engagement with candidates and issues;
  • Full and Fair Representation—consistent with the principle of “one person, one vote” and nondiscriminatory in their effects on diverse racial and ethnic groups and political jurisdictions, such as small versus large and urban versus rural; and
  • Transparency and Accountability—include a process for allocating a state’s electoral college votes that is open, accountable, and timely.