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Congress Can Finally Secure Our Right to an Equally Weighted Vote: Here’s How

, Kendall Science Fellow | December 10, 2018, 2:00 pm EDT
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When the 116th Congress convenes in January, the new Democratic House majority has promised to make electoral integrity literally its first priority: House Resolution 1.

Led by veteran reform advocate Rep. John Sarbanes (D-MD), House Democrats hope to have a bill ready to go on January 3. The odds of eventually passing such a bill with the GOP-controlled Senate and getting it signed by President Trump are slim. Yet in true Madisonian fashion, the new House majority is seeking to thwart their opponents by siding with voters, who just passed a historic set of reform initiatives across states and localities.

This bill will cover campaign finance, ethics, and voting rights, but the voting rights section is arguably the most complex and controversial. A broad range of reforms to address electoral design and performance throughout the election cycle, from voter eligibility through the allocation of legislative seats, is required to upgrade US democracy.

“Thou shalt not use state power to discriminate against voters. Period.”

As voting rights scholar Justin Levitt recently noted, an optimal performance standard for Congress to secure voting rights through its Elections Clause authority is rather straightforward. The simplest and most effective way to break down discriminatory eligibility and registration requirements would be to explicitly prohibit states from imposing any voting qualifications, leaving constitutional (age, citizenship) requirements as the default.

Prohibition against additional voting qualifications, including registration qualifications, will empower states to empower voters, as any evidence of an election administration regime’s discriminatory effects could be used to overturn it (see below). Automatic voter registration (AVR, which has already been adopted in 16 states and D.C.) and election day registration (EDR, adopted by 17 states) would replace discriminatory registration requirements. Congress should also provide a centralized registration process, for example through federal tax filing information (No Taxation Without Representation, anyone?) and other data exchange with the federal government. Additionally, language requiring pre-registration of 16 and 17-year-olds as part of high school civics and citizenship education would further boost participation. These changes alone would have the single biggest impact on improving voter participation, as a recent UCS analysis demonstrated.

Crucially, Congress must ensure that states’ voter registration lists are maintained securely and without discriminatory effects, especially since the Supreme Court allowed the state of Ohio to continue its exclusionary voter purging techniques, and to anticipate more outrageous voter suppression tactics like those identified in Georgia. Specifically, Congress should prohibit purging based on demonstrably flawed “exact match” criteria, and require that any removal of voters from registration lists be based on positive evidence of ineligibility, as opposed to non-voting.

“Thou shalt provide equal and early access to the ballot.”

To ensure equal ballot access and reduce resource-related barriers to voting, H.R.1 should mandate the provision of early-in-person voting, at least two weeks prior to the end of the election period, along with no fault absentee/mail voting. Previous research has demonstrated the discriminatory impact of restricting early-in-person voting. While the research on “convenience” voting and overall turnout is mixed, the goal of Congress ought to be to provide every institutional opportunity to vote available, given the pervasive impact of socioeconomic inequalities on voter participation.

Ballot access mandates would not require total uniformity among states, in fact it would encourage experimentation in the cost/benefit analysis of ballot availability and processing returned ballots. Key standards that Congress should implement in this area are performative: prohibiting waiting times longer than one hour; prohibiting voters from being turned away for ID or similar restrictions without allowing them to cast a provisional ballot; prohibitions against disproportionate numbers of rejected ballots, ballots wasted, ballots not accepted, etc. Such performance standards would ensure security and voter eligibility requirements within a non-discriminatory framework, all the while providing the necessary data collection to monitor voting rights violations.

This is a crucial and widely underappreciated barrier to voting rights enforcement that Congress needs to break down. Enforcing election law requires support from election scientists to analyze and understand voting patterns, and this analysis is often difficult to conduct as a result of the poor quality of data availability. In a recent analysis of early voting, the University of Florida’s Michael McDonald noted that while some states have great data management practices, others, not so much: “Take Alabama. When we called local election officials for their absentee ballot counts we literally were told that they had to look in a folder so they could count them.”

Uniform data publication requirements are essential to the effective enforcement of the law, and would greatly strengthen our ability to identify voting rights violations, as well as potential election fraud and other irregularities. Full disclosure and transparency are an unmitigated good here, and by requiring local administrators to provide election returns by precinct in at regular intervals for early voting and for results on election night, not only can irregularities be identified within hours on election night, evidence-based litigation can proceed immediately after elections, not months after the injury has occurred.

Administration, oversight and legal enforcement would also be enhanced by a uniform national ballot for all federal elections (which would also incentivize uniformity for state and local elections), as advocated by Richard Pildes. We still rely on local election officials to design and administer unique ballots across races, and the results are predictably awful. Uniformity in ballot design would benefit data management, auditing and analysis of results through the public provision of election data in a user-friendly format.

“Thou shalt not dilute the weight of votes for any reason.”

Ah, gerrymandering, what’s a Congress to do? Plenty. At a minimum Congress should require non-partisan, citizen-focused redistricting practices for all states, as is done in California and some other states. However, the most effective solution for both racial and partisan vote dilution is moving away from the single-seat district system that incentivizes gerrymandering in the first place. Congress should allow states to elect members using proportional representation (PR), as already outlined in the Fair Representation Act and recently endorsed by an increasing number of public intellectuals, as well as the New York Times. Under PR, every voter’s vote counts whether they are with a majority or minority of voters in their multi-seat districts.

Further, the adoption of PR would address more than the bug of gerrymandering; it would also minimize voter inequality that is a feature of our current First Past the Post (FPTP). This year in California, Republican voters earned just 13% of House seats with 35% of the statewide vote, not because of gerrymandering, but because of the way our system amplifies the voting strength of the largest party. Adoption of proportional representation should be a bipartisan reform if ever there was one.

The move to proportional representation would also help to integrate the currently bifurcated case law on partisan v. racial gerrymandering. As Rick Hasen has articulated, courts are currently forced to determine whether racial or partisan factors predominate a Voting Rights Act violation, though the two are increasingly blurred empirically. The constitutional integration needs to be clarified by Congress, such that an upgraded Voting Rights Act would prohibit any deviation from sound election administration practices that burdens any voters without justification based on nondiscriminatory reasons and rigorous evidence.

“Thou shalt pay the price of pre-clearance for discriminatory effects.”

How does the Voting Rights Act need to be resuscitated after the overturning of the section 4 coverage formula, and the subsequent re-emergence of Jim Crow-style voter suppression? The real damage done by the Shelby v Holder decision was eviscerating preclearance, or the requirement that “covered” states with a history of discrimination were required to get advance approval by the Department of Justice or federal courts before making any election administration changes.

At a minimum, Congress should accompany uniform data standards with an expanded (section 3) trigger that will “bail-in” states to preclearance for findings of discriminatory effect, as discussed recently by Travis Crum. While critics like Hasen are skeptical that the Supreme Court would allow jurisdictions to be bailed into coverage for conduct that is less than unconstitutional, the nature of the coverage could be “congruent and proportional” to the crime; if only registration or redistricting laws were found to be discriminatory, only those parts of election administration would be covered. It would make bailing in jurisdictions easier, and possibly getting settlements easier and faster.

Upgrading the Voting Rights Act to enforce all these reforms ultimately needs more than an enhanced bail-in trigger. As Lisa Manheim has explained, enhanced bail-in capacity is no substitute for the pre-Shelby preclearance regime that fully shifted the burden of protecting voters onto jurisdictions, rather than voters who have already suffered injuries. However, any new coverage formula, which Congress should develop, will of necessity be a product of legislative compromise. Building a new preclearance regime by protecting against discriminatory effects in the Voting Rights Act would be a great start, a major victory for voters, and a strengthening of our democratic republic.

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