by Michael A. Smith, Professor of Political Science, Emporia State University
Controversy swirls around Georgia’s new voting laws, along with similar ones in Florida, Texas, and several other states. Passed ostensibly to control voting fraud in the wake of the huge vote-by-mail turnout last year, the new voting laws are being lauded by conservatives (particularly supporters of former President Trump) as important and necessary steps to stop fraud and return to mostly in-person voting. Critics disagree passionately, countering that these laws are unnecessary and they are designed to suppress votes, particularly votes from African-Americans, which were pivotal in delivering Georgia’s electoral votes to President Biden, as well as electing new U.S. Senators Raphael Warnock and Joel Ossoff and giving the Democrats their thinnest-of-thin Senate majority. These critics have co-opted support from major business entities, including Major League Baseball, Coca-Cola and Delta Airlines. MLB moved this year’s all-star game out of Georgia in protest, while the others have voiced strong opposition. Conservatives say these businesses need to butt out. Similar controversies are occurring in Texas and Florida.
Who’s right–what does political science tell us?
Restricted Early and Absentee Voting
First and perhaps foremost, this law provides heavy incentives for both counties and voters to return to mostly in-person voting on Election Day. This comes on the heels of last year’s widespread, pandemic-era use of mail-in ballots. Early voting is not banned in the new laws, but it is restricted to shorter time periods. Most of the hours allowed for early voting in the new Georgia law are during the regular workday when many people are not available. This is particularly ironic, because many voters presumably vote early because they will be at work during most of the hours that the polls are open on Election Day. The new law does provide early voting on two Saturdays close to Election Day, and gives the counties an option to hold early voting on one Sunday. That last provision is particularly important to African-American churches, which sometimes hold events in which they take people to vote en masse after church, which are known as “Souls to the Polls” or “Golden Week.” Also, counties have only an option of Sunday voting. Some may choose not to exercise that option, meaning that voters wishing to vote on Sunday may miss out if their county chooses not to offer that. Counties also have the option to stay open slightly later on weekdays. These provisions are for in-person early voting–Georgia’s new laws discourage mail-in early ballots. Those wishing to vote absentee will have to return to pre-pandemic requirements, including the onus being on the voter to request a ballot and return it in a new, restricted time and return the ballot on time regardless of delays in mail delivery. The use of drop boxes is also sharply restricted–they will be indoors and only accessible during normal working hours. However, the new law does include one more-accommodating provision: it does not restore the old notarization requirement for absentee ballots. Instead, voters will include the number from their Georgia driver’s license or other acceptable identification along with their signature.
The goal here is obviously a return to mostly in-person voting. The results of political scientists’ research on this are mixed. On the one hand, most U.S. states have had early voting for a few decades now, and the evidence just does not prove that it boosts voter turnout, nor that restricting it will lower turnout. In fact, a host of political scientists including the University of Wisconsin’s Barry Burden have found that expanded early voting–the opposite of what Georgia is now planning– not only fails to raise turnout, it may actually lower it. It is hard to isolate why, but it may be a weakening of campaigns’ ability to turn out voters on Election Day with door-to-door canvassing, known in the campaign world as the “ground game,” or “knock and drag.”
Will restricting early voting specifically restrict African-American voter turnout? Here, the evidence is mixed. Prior to the 2020 voting changes, African-Americans were more likely to vote early and in-person, while whites were more likely to vote absentee. Evidence from exit polls in diverse, urban locations indicate that many African-Americans did indeed take advantage of the expanded, mail-in early voting last year. Yet, the evidence is less clear as to whether or not restricting early voting will cause African-American turnout to drop. In a forthcoming book, I present research of my own as well as that of colleague Ryan Voris of Abraham Baldwin Agricultural College, which just happens to be located in Georgia. Both of us find substantial evidence of a backlash effect by African-American voters who may feel targeted by these laws. An October 2020 Reuters article from Waco, Texas finds anecdotal evidence of this as well. Despite new state restrictions on voting, authors Joseph Tanfani and Michelle Martina found Waco’s African-American population working through the new restrictions and turning out in high numbers because they were “pissed off.” Georgia’s first African-American U.S. Senator since Reconstruction, Rev. Raphael Warnock, will be on the ballot again in 2022 because he was elected to fill a partial term last year. The combination of these forces may be just the ticket for an angry, African-American constituency to turn out in high numbers despite the new restrictions, determined to rebuff Georgia Republicans and re-elect Warnock.
Finally, it should be noted that the Georgia Legislature may have opened Pandora’s box by returning to the traditional requirements for absentee voting. As University of California-Irvine law professor Richard Hasan notes in his book Voting Wars, absentee ballots are typically the source of the most contention in election disputes. However, much of the contention involves signature verification, so perhaps the replacement of this with the ID number can help cut this down. Then again, difficulty in reading handwriting could still be a problem, as could disabilities such as dyslexia.
Long Lines
Critics of the new Georgia laws raise another concern: long lines. The bill restricts polling places (particularly mobile polling stations), as well as the aforementioned limitations on early voting. Encouraging more people to vote in person on Election Day raises the question: do long lines deter voter turnout?
Unfortunately, long lines to vote are a problem that disproportionately affect urban constituencies that include many people of color. Using cell phone ping data, Chen, Haggag, Pope, and Rohla (2020) (PDF) found that while the average wait time to vote in 2016 was only 19 minutes, many African-Americans were forced to wait much longer. Summarizing the study, author Jonathan Coopersmith concluded that “Voters in all-Black neighborhoods had longer waits than those in all-white neighborhoods and were 74% more likely to wait more than half an hour.”
Other research corroborates these findings. Authors sampled 3119 polling places across the country for this study by the Bipartisan Policy Center. Integrating their findings with U.S. Census data, they found that long lines are a problem disproportionately affecting African-American and Hispanic voters. They write, “[f]or instance, responses to the 2016 Voting and Registration Supplement of the Current Population Survey suggest that over 560,000 eligible voters failed to cast a ballot because of problems related to polling place management, including long lines.”
It is unfair in and of itself to force some people to wait in long lines, while others get in, vote, and get out in about 19 minutes. But, does it actually suppress voter turnout? Stephen Pettigrew (2020) tackled this question by pairing voters in a sample who were similar in terms of demographics–thus controlling for other factors– but faced different lengths of lines in order to vote. The amount of time these survey respondents waited to vote was self-reported. Interestingly, Pettigrew’s data came from the Congressional Cooperative Election Studies (CCES), which found that in 2014 and 2018 Georgia had the longest average wait to vote of any state. This was only about 20 minutes, but that average can conceal a great deal of variation. Also, both of these were midterm elections, which have lower turnout and may lead one to expect shorter lines than in Presidential elections. Anecdotal evidence reported by journalists indicates that some Georgia voters, disproportionately those of color, waited in line for more than 10 hours to vote in 2020. This is not the average, but it does happen. The new Georgia law calls for the election authorities to take action to reduce voting lines if a precinct has lines longer than an hour or consisting of more than 2000 people. However, the provisions do not take effect until the next election. They do not provide relief for those standing in the line at the time, and they still allow for lines more than three times the national average of 19 minutes.
Pettigrew’s bottom line was that each additional hour of waiting lowers a voter’s probability of voting in future elections by about 1%. Thus, long lines do have a measurable impact in lowering turnout in future elections.
What about voters who leave long lines without voting due to not having enough time or patience? Reporters give plenty of anecdotal evidence that some voters are forced to walk away due to these long lines. More work is needed to pin down the numbers. Complicating this measure is whether or not the voter returned later and voted when the lines were shorter, or the voter had more time.
A fascinating topic for more research is queuing theory. This refers to the study of lines–what affects how quickly they move and how we can estimate waiting times. The application of queuing theory may help political scientists break down the factors that make lines so long and figure out how to make them shorter. Of course, more polling locations seems a no-brainer, but perhaps more can be done. One quick, off-the-cuff suggestion is this: allow voters to cast ballots at any polling location within the county, not just the one serving the precinct in which they live. The technology to deliver the correct ballots to voters from more than one precinct already exists and is used for in-person early voting, which is often done at central locations such as the election board’s main office, not at sites in each individual precinct. Simply applying these practices to Election Day voting would allow for voters who have transportation to leave the line and go to another polling location with shorter lines, and cast their ballots there. Currently, voters in the “wrong” polling location are allowed to cast provisional ballots, but there is no reason why such ballots must be marked as provisional.
Is This Constitutional?
I am not aware of any U.S. Supreme Court ruling specifically regarding long lines at the polls. However, there have been some federal district court rulings. In NAACP v Cortes (2008), plaintiffs argued that if more than 50% of Pennsylvania’s new electronic voting machines were to fail at any given polling location, paper ballots should be made available and not counted merely as provisional ballots. The plaintiff (the NAACP) argued that too many inoperable new machines could cause longer lines to vote, arguing that this violates the Help America Vote Act (HAVA) of 2002. The court sided with the plaintiff in this case, granting relief. However, in Anderson v Raffensperger (2020), another federal district court judge rejected plaintiffs’ arguments that Georgia had not put in place sufficient provisions to insure that voting lines would be shorter in 2020 than they had been in the past. In this case, the plaintiff specifically noted the disparity in lengths of lines in different precincts, arguing a violation of the Due Process clause of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judge ruled narrowly on the facts of the case, finding that the plaintiffs had not provided sufficient evidence that Georgia’s new voting arrangements were inadequate. This leaves open the possibility that future cases could be decided in favor of the plaintiffs if they could prove sufficiently that the state had not in fact made adequate efforts to shorten the lines. However, one provision in the new law appears to be designed as an end-run around this. By providing that if there are long lines in one election, the state must make arrangements to shorten them next time, the law is written in such a way that legal challenges under the precedent of the Anderson case are going to be very difficult. The law’s provisions do not provide immediate relief to those standing in the long lines.
Conclusions
In sum, Georgia’s new voting laws, along with those of other states including Florida and Texas, all emphasize restrictions on early and/or absentee voting and a return to in-person voting on Election Day. The primary problem with such laws is the possibility of long lines, which disproportionately affect urban constituencies and people of color. Of further concern is that Georgia is often ranked as having the longest voting lines of any state.
Turning to political science, there is little evidence prior to 2020 that early voting in and of itself boosts voter turnout, so a return to in-person voting on Election Day does not necessarily mean lower turnout. However, long lines are a real concern, and even more so in the particular states that have moved aggressively to pass these restrictive new laws. Queuing theory hints at a policy change that could provide substantial relief here: removing the requirement that voters may only vote in the polling location that corresponds to their home precinct. Opening up all polling locations to all voters in the county–with ballots counted as regular, not provisional ballots– could potentially result in an equalization of waiting times. This could also be reinforced by technology. For example, cell phone apps could be developed that feature real-time updates of the waiting times at each polling location in the county, redirecting voters to those that currently have the shortest lines. Even voters without transportation would benefit, as those who did have transportation got out of long lines and headed to the other locations, shortening the line for those who remained.
Finally, there is no clear court precedent for relief from long lines to vote. The Cortes case offered relief to the plaintiffs based on HAVA, while the more-recent Anderson case was ruled for the state, but without closing the door entirely to future challenges. However, the Georgia law appears to have been written with Anderson in mind, making it nearly impossible for the plaintiffs to win future challenges, but without providing any immediate relief for those stuck in line. Even so, these new laws are certain to be challenged, and the court battles remain ongoing.
Michael A. Smith is Professor of Political Science and Chair of Social Sciences at Emporia State University. He has authored or co-authored three books, the most recent of which is co-authored with two Emporia State colleagues, Drs. Bob Grover and Rob Catlett. It is entitled Low Taxes and Small Government: The Brownback Experiment in Kansas and was released by Lexington in 2019. He has other academic publications as well, and also writes newspaper columns carried throughout Kansas as part of the Insight Kansas group and blogs for the MPSA. Michael appears occasionally on television and radio in Kansas and western Missouri to discuss state and national politics. He was an expert witness for the plantiff in the Bednasek v Kobach case, decided together with Fish v Kobach by the federal district court for Kansas in 2018. Michael teaches courses in American politics, state and local government, and political philosophy. He received his Ph.D. from the University of Missouri in 2000. Follow Michael on Twitter.