Voting

Background

The right to vote is among the most basic of all political rights. Recent elections, however, 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

Even when early voting is allowed, it is often limited to weekdays, and workers may not be able to take time off to do so. In part as a result of these barriers, approximately 40 percent of eligible voters did not vote in the 2016 election.

Voter identification requirements (voter ID)—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 with an approved document indicating their name and address. Some states impose even more onerous voter ID requirements. This can include requiring showing a government-issued photo ID before voting—which in many states cannot be obtained without a birth certificate, passport, or other documentation. Currently, 34 states require some form of ID at the polls, while 17 mandate a photo ID. In some states, voters can sign an affidavit of identity at the polls and have their registration confirmed later by election officials. Others require such voters to return to an election office in the days after an election with acceptable ID in order for their vote to be counted.

In the past few years, some states, including Ohio and Georgia, have required voter registrations to match exactly records from the Department of Motor Vehicles, the Social Security Administration, or both. 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. Civil rights groups argue that this practice discriminates against vulnerable populations for whom it may be more difficult to correct registration errors. They also note that voter registrations are prone to errors that are not the applicant’s fault, for example, the accidental addition of an extra space.

Voter ID laws and other restrictions can have repercussions across age groups. People may not have access to required documents or may not be able to afford the fees to obtain them. This is particularly true for people with low incomes and for those who are members of historically disadvantaged racial and ethnic groups. For example, older African Americans who grew up in the South under Jim Crow may never have been issued a birth certificate, one of the documents often required by voter ID laws.

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 who don’t have such bills in dorms or have licenses from their hometown.

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 because it rejected the forms of identification used disproportionately by African Americans. This included IDs issued to government employees, students, and people receiving public assistance.

The Voting Rights Act requires some states and other jurisdictions to receive preclearance from a federal court or the U.S. Department of Justice for changes in voting laws. This includes voter ID laws. The purpose is to block discrimination on the basis of race or language minority status. The 2013 Supreme Court decision in Shelby County v. Holder struck down the formula that determined which jurisdictions had to seek preclearance. Until Congress acts to create a new formula, covered jurisdictions no longer have to seek preclearance for their voting law changes. A Brennan Center for Justice report found that this change caused two million additional voter registrations to be purged between 2012 and 2016.

Although states regularly perform maintenance on their voter registration rolls to purge voters who have moved out of state or died, as of 2018, nine states have “use it or lose it” laws. These states remove voter registrations for those who have not voted in a certain number of recent elections. The Supreme Court ruled in A. Philip Randolph Institute v. Husted that an Ohio voter purging law was legal because people both did not vote and did not respond to a notice that they would be purged. The court did, however, indicate that such programs are likely to remove from the voting rolls a significant number of eligible voters who do not respond to the notice for whatever reason, not just ineligible voters.

These laws have had a significant impact on the total number of voter registration purges. For example, Ohio has removed thousands of voters from its registration rolls over the past several years simply because they had not voted or responded to an official notice over a six-year period. Further, a 2016 Reuters study found that the state’s “use it or lose it” law disproportionately affected neighborhoods with high density of low-income people from historically disadvantaged racial and ethnic groups.

Voting tools and procedures—federal law requires states to meet uniform standards in federal elections. States must maintain centralized voter lists. Voters must be allowed to cast provisional ballots when necessary and be permitted to verify and correct their ballots.

Voter participation can be significantly increased by practices such as:

  • same-day voter registration, which allows people to register and vote at the same time;
  • early voting, which provides all voters with the option to cast an in-person or mail ballot ahead of timeand includes “no excuse” absentee voting, in which everyone has the right to cast an absentee ballot; and
  • automatic voter registration, for example, automatically registering to vote people who apply for a driver’s license unless they indicate they do not want to register to vote. The Motor Voter Act, technically known as the National Voter Registration Act, allows anyone applying for a driver’s license to opt into registering to vote. Automatic voter registration, on the other hand, automatically registers someone to vote unless they opt out of doing so.  

Another practice that can increase participation is preregistration of 16- and 17-year-olds. The share of young voters (age 18–29) registered to vote is lower than other age groups. Preregistration can reduce this disparity.

Some studies have found that early voting is not associated with higher turnout. But early in-person voting is particularly important to some populations. For example, African-American and Latino voters are more likely to utilize it than white voters. According to the Brennan Center for Justice, a number of states have substantially reduced their number of early in-person voting days.

Computerized registration also increases the share of registered voters. In addition it saves money, improves security, decreases errors, and makes it easier to change a voter’s name or address. However, electronic voter databases provide a potential target for skilled hackers. This was the case in 2016 when Russian-associated hackers penetrated (but did not alter) 21 states’ voter files.

The continued use of outdated voting machines increases the risk of both accidental failures and malicious hacking that can lead to long lines and lost votes during an election, potentially damaging voter confidence. According to a 2015 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.

Some states want anyone seeking to register to vote by mail to provide proof of citizenship. Courts have struck down some of these laws, arguing that the burden placed on eligible voters of gathering the correct documents outweighs the potential for voter fraud, which is very rare. In addition, some states have discouraged community-based voter registration drives through onerous regulations. In some cases, the courts have set aside such requirements.

Voters with disabilities—federal laws mandate improved access to registration and polling places. They also require better outreach to older adults and people with disabilities.

The requirements of the Voting Accessibility for the Elderly and Handicapped Act expired in 1995, so the 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.

Voting-rights laws should address the needs of people with mental as well as physical disabilities. Increasing numbers of Americans have dementia or other cognitive impairments. Laws must protect vulnerable populations’ access to the polls. They must also guard against any manipulation of their vote. State constitutions and laws vary on the level of mental capacity needed to vote. Most 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 this safeguard, with strict parameters, may be needed to avoid inappropriately depriving people of the right to vote based on mental impairment (see also Chapter 12, Personal and Legal Rights - Advance Planning and Guardianship).

About 1.4 million people live in skilled nursing facilities. They may face challenges in exercising their right to vote. One way to increase nursing home residents’ ability to vote is with mobile voting machines. The voting machines can be brought to these facilities. There, they can be supervised by trained local election officials and others involved in residents’ care.

Voters in the District of Columbia (DC)—DC residents do not have the right to vote for representation in Congress, although the Twenty-Third Amendment does provide them with the right to vote for president. DC has no Senators. In the House, it has a delegate to Congress who does not have the right to vote outside of committee. This is a unique voting-rights barrier for the District of Columbia’s nearly 700,000 residents, a population higher than that of several states. DC residents perform all the obligations of U.S. citizenship, such as paying federal income taxes and serving in the armed forces.

State ballot initiatives—state ballot initiatives have been used to decide sometimes volatile issues. It is one way for citizens to exercise power over the legislative process. But the process is also subject to abuse. Confusing or misleading ballot language, fraudulent signatures, and misrepresentation by some who circulate petitions are just a few examples. The lack of legislative oversight makes it impossible to correct a poorly-drafted measure. In addition, the high volume of issues that voters are asked to decide on can lead to confusion and misinformation.

Several states have passed laws to prohibit fraud and protect the integrity of the ballot initiative process. But concerns remain. The vast sums of money involved can favor special interests or those with deep pockets. In California alone, an estimated $452 million was spent on ballot initiatives in 2016. 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.

Primary and Electoral College reform—most primaries are party-specific. Only registered members of that party, or sometimes unaffiliated voters, may take part. Some other states have runoff systems. Alternative primary systems can increase voter participation and decrease political polarization. For example, open primaries allow voters of any political affiliation to decide in which primary to vote. Twenty states have open primary systems for congressional and state-level offices.

One type of runoff system is a nonpartisan blanket primary, used in some states like California and Louisiana. In this system, all candidates for a given office, regardless of political party, run against each other in the first round election. In California, the top two candidates face off in the second round runoff election. Louisiana only has a runoff if no candidate wins a majority in the first round.

Ranked-choice voting is another model. This system includes only one election with candidates of all parties. Voters rank candidates by order of preference. If a candidate wins a majority of first-preference votes, he or she wins the race. If not, the candidate with the fewest first-preference votes is eliminated, and the results are rerun, with the process continuing until a winner 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.

The Electoral College is used to determine the outcome of U.S. presidential elections. Voters elect representatives to the Electoral College, who then elect the president and vice president. There is debate over whether this system is fair and representative. In four presidential elections, the winner of the Electoral College has been different from the winner of the national popular vote. This is because 48 states require that all of their electoral votes go to the presidential candidate who wins the state’s popular vote. This can also mean that presidential candidates can ignore states where they are comfortably ahead or far behind.

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 2018, eleven states and the District of Columbia have adopted it, but it will only go into effect if states with at least 270 total electoral votes adopt it.

VOTING: Policy

Uniform standards

In this policy: FederalLocalState

Policymakers should establish and enforce uniform standards to safeguard the integrity of the election process. They also should allow all Americans to express their electoral preference.

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 Chapter 11, Financial Services and Consumer Products - Security of Connected Devices);
  • sanctions against fraud and discrimination in the voting system exist; 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 coordinate with the Department of Homeland Security to conduct pre-election vulnerability analyses and post-election audits to look for evidence of tampering. 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

In this policy: FederalState

Policymakers should establish a fully functional, online, and portable system to maximize voter registration. Congress should set 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, that are fully in compliance with the National Voter Registration Act;
  • reject onerous proof of identity or citizenship requirements;
  • facilitate the ability of college students to register to vote where they attend school;
  • reduce the use of provisional voting by improving voter registration procedures and removing impediments to casting regular ballots; and
  • establish uniform, nondiscriminatory rules for accurately purging voter registration lists that ensure voters remain on the rolls when they move within the state.

Voter identification requirements

In this policy: FederalState

Identification requirements that discourage or prevent citizens from voting should be prohibited.

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

Identification requirements should be no more extensive than necessary to address verified evidence of electoral fraud. The name listed on a voter’s government-issued ID should not be required to match precisely the name on the voter registration roll.

State policymakers should help eligible voters 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.

Maximizing participation

In this policy: FederalLocalState

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 choices.

These include:

  • allowing same-day voter registration;
  • permitting preregistration of 16- and 17-year olds;
  • 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.

Policymakers should improve access to voting for residents of long-term care facilities.

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

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.

Voter registrations should not be removed because a person who has not voted in recent elections has failed to respond to notices that they will be removed (known as “use it or lose it” voter purging). If such programs are enacted, they should include measures designed to avoid removing eligible voters from voter registration lists.

District of Columbia voting rights

In this policy: Federal

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

Voter fraud

In this policy: State

States should adopt procedures to prevent and detect voter fraud. They 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.

Older voters and voters with disabilities

In this policy: FederalStateLocal

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 put in place policies to assist individuals with disabilities in voting. This includes people with cognitive impairments. They should:

  • allow individuals with disabilities to request and receive registration forms and absentee ballots by mail or electronically;
  • develop best practices for ballot design to maximize access;
  • permit and encourage mobile polling (see also Chapter 11, Financial Services and Consumer Products - Security of Connected Devices);
  • ensure that instructions, signage, and other communications regarding elections are accessible; and
  • guarantee polling places are free of physical barriers that inhibit access.

People with mental incapacity should generally retain their right to vote. Any restrictions on voting rights should require a court order that meets each of the following criteria:

  • 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 appropriate accommodations, a specific desire to participate in the voting process.
  • The findings are established by clear and convincing evidence (see also Chapter 12, Personal and Legal Rights -Advance Planning and Guardianship).

Congress should require states to submit accessibility plans using a standardized assessment instrument. It should allow people with disabilities to seek expedited judicial remedies when polling places are inaccessible.

Congress should restore the reporting requirements in the Voting Accessibility for the Elderly and Handicapped Act and enhance the enforcement authority of the 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.

Ballot initiatives

In this policy: State

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.

Primary and Electoral College reform

In this policy: StateLocal

States and localities should:

  • ensure that their primary and electoral systems maximize voter participation; and
  • work to eliminate the harmful effects of partisanship on state and local government.

States should consider alternative voting models that could expand voter participation and reduce partisanship, including open primaries, nonpartisan blanket primaries, and ranked-choice voting.

States should review ways to maintain fairness and participation in the Electoral College system for electing the president and vice president.

State laws governing the allocation of Electoral College votes should:

  • maximize voter participation in the electoral process while encouraging public engagement with candidates and issues;
  • ensure consistency with the principle of “one person, one vote” and nondiscriminatory effects on historically disadvantaged racial and ethnic groups and political jurisdictions; and
  • include a process for allocating a state’s Electoral College votes that is open, accountable, and timely