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After Years of New Voting Restrictions, Momentum Swings the Other Way

Some states are still purging voter rolls and requiring IDs. But most are now looking to expand access to the ballot box.
by | March 2019

Voting is not mandatory in the United States, as it is in Australia. But does that mean that American citizens who have the right to vote in elections also have the right not to vote? 

It’s a question that was raised in Ohio when the state stripped Larry Harmon, a Navy veteran, from its voting rolls. “I earned the right to vote,” Harmon, who was kicked off the rolls in 2015 after he failed to vote in three prior elections, told NPR. “Whether I use it or not is up to my personal discretion. They don’t take away my right to buy a gun if I don’t buy a gun.”

That argument was persuasive with a series of courts that heard Harmon’s case. After all, the National Voter Registration Act says that states can’t remove individuals from the rolls simply for not voting. Ohio has a policy of sending out postcards to individuals after they fail to vote in two consecutive federal elections. They’re supposed to respond to the postcard to affirm that they still live at the same address. But many people, including Harmon, say that they never saw the postcard, which they might have mistaken for a piece of junk mail. 

Last year, Harmon lost his case. The U.S. Supreme Court, noting that the state had made a good faith effort to contact voters, upheld Ohio’s policy -- known as “use it or lose it” -- of striking nonrespondents from the voter rolls. “Do you have a right not to vote?” asks Michael McDonald, an expert on voting at the University of Florida. “The Supreme Court said no, you have to be periodically voting.”

The ruling triggered warnings bordering on panic from voting rights groups across the country. They worried that aggressive purging of registered voters could lead to disenfranchisement on a broad scale. Even before the Ohio case was decided, the Justice Department put out a press release announcing it would side with Ohio, reversing the agency’s policy under the Obama administration. The next day Georgia removed some 200,000 voters from the rolls. Jon Husted, then serving as Ohio’s secretary of state, said the method “can serve as a model for other states to use.”

In response, the League of Women Voters warned that the Supreme Court decision would “fuel the fire of voter suppression across the country.” NBC reported that “at least a dozen other politically conservative states” were planning to follow Ohio’s lead. “Voting is a constitutional right,” says Jim Condos, the Democratic secretary of state in Vermont. “We should not be very aggressive about removing people from the rolls.”

Broad voter purges appeared to be the next step in a decade-long campaign to make voting more difficult. Expressing concerns about security, a majority of states have taken steps in recent years that restrict voting in one way or another, including photo identification requirements, cutbacks to early voting and policies designed to make it more difficult for students to vote where they attend college.

But something else is happening in response. This year, hundreds of pieces of legislation are up for consideration in more than 30 states that seek to expand voting rights. Already, New York has passed a package of bills that would move the state, long considered one of the least voter-friendly in the nation, into the modern era. All over the country, both ballot measures and legislation are being promoted to make voting and registration easier and closer to universal. It’s not happening everywhere; there’s still a partisan divide on many voting issues. But politicians from both parties, in various states, have come around to the idea that it’s time to make voting easier.

Differences in approaches to voting rights aren’t just partisan. They’re also historical and tend to swing like a pendulum. Beginning in the 1960s, the nation as a whole began to expand voting rights in multiple ways. The Voting Rights Act of 1965 made real the promise of the 15th Amendment, guaranteeing access to the ballot to African-Americans who had been disenfranchised by a century of Jim Crow laws. It also gave the federal government authority to review state and local requirements for registration and voting. A year earlier, in 1964, the ratification of the 24th Amendment banned the use of poll taxes imposed to keep black people from voting. In 1993, Congress passed the National Voter Registration Act, which was originally known as the motor voter law because a provision guaranteed people the ability to register when signing up for driver’s licenses.

These expansive measures were followed in recent years by a series of restrictions, including voter ID laws and, in Kansas and Arizona, laws requiring that voters provide proof of citizenship. (The Kansas law was put on hold by a federal court last year.) The Supreme Court made much of this easier in 2013, when it issued a ruling that gutted parts of the Voting Rights Act and freed states from having to receive “preclearance” on election law changes from the federal government. Today, 35 states have voter ID requirements in place; some states have restricted early voting and placed new hurdles in front of voters.

But the expected rush to purge voters following the Supreme Court ruling in the Ohio case hasn’t taken place. Instead, momentum has shifted back in the direction of expansive voting rights. “There is a push and pull with voting rights, as with other civil rights,” says Jonathan Brater, an elections lawyer who recently left the Brennan Center for Justice at New York University. “Some of what we’ve seen in the last decade can be seen as a response to the huge participation in 2008, particularly of minority voters.”

Fewer than 10 states have Ohio-style “use it or lose it” policies on the books. In some cases, these policies date back to the 1990s. The states include Georgia, where the race for governor last year seemed to turn at least as much on questions regarding voter registration processes as on policies. But they haven’t been joined by a flock of others. “It’s a pretty retro method of keeping the rolls clean,” says Justin Levitt, associate dean for research at Loyola Law School in Los Angeles. “I don’t think that states that don’t have it will have an interest in putting something like it in place.”

Everyone involved in election administration agrees about the importance of keeping voter rolls clean and up to date. Having people who are dead or who have moved away still on the list is an invitation to fraud. Duplicative or inaccurate registrations also represent an unnecessary cost, due to election-related mailings and logistical questions, such as planning the number and locations of polling places. But there are more modern ways of keeping rolls current, notably automatic voter registration (AVR). As the name suggests, under such a system, individuals are automatically registered to vote when they interact with the department of motor vehicles or other agencies, unless they choose to opt out. “The major sell on automatic voter registration isn’t that it’s going to register lots of new people,” says McDonald, the Florida political scientist. “The major sell is efficiency.” What McDonald means is that when people update their information through the DMV, that information is shared electronically with the voter database. That cuts down on errors and, when people move within their state, their information moves with them.

Since Oregon passed the first AVR law in 2016, no fewer than 15 other states have adopted similar systems, including red states such as Alaska and Georgia. More than three-dozen states have put into effect a form of online registration -- some allowing same-day registration. In January, New York became the 18th state to allow individuals to register to vote as late as Election Day itself. The legislative package there also included the creation of an early voting period and a measure to allow citizens as young as 16 to pre-register to vote.

At the congressional level, Democrats have made clear that voting rights are a top priority for their new House majority. Nearly every Democratic representative has signed on as a co-sponsor of the sweeping bill, which would require online voter registration, automatic voter registration and same-day registration, as well as offer protections against voter purges, among many other provisions. The bill appears to have zero chance of moving through the Senate, let alone gaining President Trump’s signature. But these types of ideas are now being tried out in legislatures all over the country and are likely to pass in at least some states.

 

There’s an old rule of thumb that the closer you live to Canada, the more likely you are to vote. Northern states including Maine and Minnesota have long led the pack when it comes to turnout, while Southern states generally lag far behind. This isn’t because voting is a welcome cold-weather activity. It has to do with the political cultures and histories of these states.

But the issue of whether states encourage or discourage people from voting nowadays has more to do with internal partisan inclinations than geography. Generally speaking, blue states are rushing to make voting and registration easier, while red states have tended to put more restrictions in place. Democrats are pushing for increased access to the ballot, and Republicans favor certain restrictions such as voter ID requirements as protection against the possibility of fraud. 

What these latter measures have in common is adding an additional layer of effort for people who wish to vote. It’s no longer enough, in many cases, to register and then show up at the polls. Voters have to show identification proving they are who they claim to be. They may also have to monitor their own registrations to make sure they’re still on the rolls. There are protections under the National Voter Registration Act for voters whose names are struck because the state believed they may have moved -- protections that remain in place despite the Supreme Court’s Ohio ruling last year. But there are fewer protections for people the state thinks have died or been imprisoned. Many states don’t provide notice when they remove voters for such reasons. “When you are eligible and nothing has changed in your situation, it’s understandable that people are upset when they go to the polls and they can’t vote,” says Levitt, the Loyola professor. “You’ve done everything right, and your circumstances haven’t changed.”

Voters have generally been supportive of some of the recent restrictions. Polls over the past decade have consistently shown that at least two-thirds of the public supports voter ID laws, finding them to be both reasonable and achievable. One Gallup poll conducted in 2016 found that 80 percent of those surveyed supported voter ID laws. Last November, voters in Arkansas and North Carolina easily adopted voter ID ballot measures.

But in many other places lawmakers are implementing policies that expand the franchise. And they’re already having a practical effect. In Vermont, Secretary of State Condos reports, online and automatic voter registration represented close to 70 percent of voter registrations last year.

The same Gallup poll from three years ago found that the same percentage of respondents who supported voter ID laws also supported same-day registration. It’s clear that the public will support policies that are advertised as making voting easier. Such measures have proven highly successful. In Michigan, voters last year easily approved a proposition to allow same-day registration, which the legislature recently amended in a lame-duck session. Nevada voters approved automatic voter registration. Perhaps the year’s most publicized measure, Florida’s Amendment 4, received nearly 65 percent of the vote. Amendment 4 made restoration of voting rights automatic for most former felons, excepting those convicted of murder and sex crimes.

Amendment 4 has had its effects -- not just in Florida, where registrations have spiked since the new law took effect in January, but in other states as well. Iowa Republican Gov. Kim Reynolds has proposed amending the state constitution to allow former felons to vote after they complete their sentences, which in Iowa would mean not just jail time but also finishing probation or parole. A lawsuit has been filed in Kentucky, which is the only other remaining state where voting rights are not automatically restored to ex-felons. Massachusetts and New Mexico may go even further. Those states are considering restoring voting rights to individuals who are currently incarcerated.

Even as public opinion and policy momentum appear to have shifted toward expanding voting rights, there continue to be concerns about maintaining a balance that ensures electoral integrity. Academic studies have shown that in-person voting fraud -- the type that identification requirements guard against -- is exceedingly rare. Other types of fraud, however, particularly those involving mailed ballots, are more common. A case in point is last year’s disputed congressional race in North Carolina, in which as many as a thousand absentee ballots may have been destroyed. Such incidents have heightened concerns about electoral integrity, especially among Republicans. “Expanding access to the polls without addressing safety protocols to protect the integrity of our electoral process is a disservice to the voters of our state,” New York state Sen. Robert Ortt, a Republican, complained after the state expanded voting rights.

In January, the Office of the Texas Secretary of State announced that it would ask county officials to investigate the citizenship status of up to 95,000 registered voters, as many as 58,000 of whom might have cast ballots in elections dating back to 1996. The news triggered a series of concerned tweets about voter fraud, including one from President Trump and another from Texas Attorney General Ken Paxton, who tweeted, “Any illegal vote deprives Americans of their voice.”

Texas officials backtracked almost immediately, with the secretary of state saying thousands of people on the initial list are in fact citizens. In previous instances in recent years, in which Florida and Pennsylvania announced there were thousands of noncitizens on the rolls, the problems turned out to be based on computer or human error, not fraud. In both states, the final number of non-citizens who turned out to be registered was fewer than 100.

The goal for some policymakers in Texas, suggests McDonald, the Florida political scientist, is ultimately to require all new registrants to provide proof of citizenship. Texas GOP Gov. Greg Abbott has been a leading voice regarding voter fraud. His state has one of the strictest voter ID requirements, and has grown more aggressive about purging voters in the years since it was released from federal preclearance by the Supreme Court decision in 2013.

Although advocates and the media pay attention to specific restrictions when they are passed, they don’t always do as good a job looking at their cumulative effects, McDonald says. A series of hurdles may make citizens less likely to vote or make the attempt to vote harder than any single law on its own. The effects of discouragement compound over time, with the number of voters affected increasing from election to election. In Texas, the combination of laws has created a political culture that dampens voter turnout. Despite being home to one of the most expensive and publicized U.S. Senate contests last year, Texas didn’t see turnout rise nearly as much as in many other states. In fact, Texas ranked 48th in voter turnout in 2018.

This back and forth over voting rights -- from making voting easier to making it more difficult -- is nothing new in American politics. Voting registration itself, which began in the 1800s, was the product of lawmakers seeking to target political opponents by writing rules that applied only to residents of large cities. As recently as 2002, Wisconsin had such a law on its books, singling out voter registration rules only in larger jurisdictions within the state. 

Whether making them looser or tighter, politicians have always sought to game the system by changing the rules around voting and registration. “Politicians don’t make changes to laws, especially election laws,” McDonald says, “without thinking about the consequences of those laws on their reelection chances and the fortunes of their political parties.”

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