by Michael A. Smith, Professor of Political Science, Emporia State University
This year’s contentious political climate has escalated a longstanding, partisan dispute over election laws and their enforcement. Led by President Trump, Republicans are sounding the alarm about possible voter fraud, given the large number of mail-in and absentee ballots anticipated this election cycle, which have already been arriving at county election facilities across the country. Democrats counter that the real issue is not voter fraud, but voter suppression—they argue that Republican attempts to crack down are not based on fraud but rather on an attempt to stop people from voting—specifically, people who tend to vote Democratic. Who’s right and why?
The U.S. has a long, complicated relationship with voting rights. Originally limited to property-owning white males, voting rights have been expanded over the years, sometimes at great cost to those fighting for reform. Freed slaves and their descendants supposedly got the right to vote when the 15th Amendment was ratified shortly after the Civil War, but Southern states (and a few Northern ones as well) never failed to invent intricate ways to deny African-Americans their right to vote, particularly after Reconstruction was ended following 1876. Some of these are well known, including the poll tax, literacy tests, and grandfather clauses. Outright intimidation was also used, with the Ku Klux Klan and their allies, the white “citizens’ councils” using violence and threats to frighten would-be voters away from the polls. Other chicaneries are less well-known. For example, the “white primary” was used in several states including Texas. African-American voters were banned from party primaries on the premise that parties were private organizations that could choose their members. In fact, with no viable Republican Party at the time, the election was decided in the Democratic primary, so excluding African-Americans from that vote effectively deprived them of any right to vote at all. Many times, there were not even Republican or third-party candidates on the November ballot, just a formal ratification of the Democratic nominee who had been chosen in the “white primary.” Gerrymandering was also used, for example in the notorious redrawing of Tuskegee, Alabama into a 28-sided figure to remove as many African-American neighborhoods and households as possible so they could not vote in local elections. Meanwhile, women gained the right to vote 100 years ago with the 19th Amendment. Though women’s suffrage had its opponents back in the day, there haven’t been the same contortions by states attempting to deny them this right, as there have been affecting African-Americans. Incidentally, the parties didn’t realign along the issue of civil rights until after President Johnson signed the Civil Rights Act of 1964.
Late in the 20th Century, the tide turned toward making voting easier. Poll taxes were abolished by Constitutional amendment, while another amendment lowered the voting age to 18. The Voting Rights Act of 1965 included numerous provisions including pre-clearance of voting law changes by the Department of Justice for places with a history of discrimination, overturned years later in the Shelby County v Holder decision of 2013. Same-day voter registration was instituted in several states including Maine, Wisconsin and Minnesota. The 1996 National Voter Registration Act (NVRA), or “motor voter,” provided that voters could register at the Department of Motor Vehicles. States began experimenting with other means of expanding the vote, such as pre-registering 17-year olds so that they were eligible to vote upon turning 18. Other states tried putting voting booths in popular places such as shopping malls, and early voting was instituted beginning in the early 21st century, though with mixed results for turnout. Today, all states but Missouri have some form of early voting.
However, the early 21st Century saw a shift– an increasing push for restriction on voting coming from Republican elected officials. Outraged both by the Florida recount debacle in 2000, and voting irregularities in St. Louis that same year, the GOP began demanding tighter restrictions including Photo ID for voting and, in some states, proof of U.S. citizenship to register. South Dakota tightened its restrictions against the voting rights of those convicted of felonies, even if they have completed their sentences. Iowa followed suit. Fueled by controversy over the progressive, voter-registration group ACORN, now defunct, some states began restricting third-party voter registration drives. Florida’s restrictions are so extreme that the League of Women voters stopped having registration drives there, fearing criminal prosecution for good-faith mistakes. The postmortem evidence on ACORN indicates that the organization was poorly organized and often turned in improper voter registration cards, but the canvassers’ supervisors, along with local and state authorities caught the mistakes. There is no evidence than any of these fake voters ever actually got on the rolls, let alone cast a ballot. The problem stemmed from paid canvassers fudging to make a quota, not deliberate attempts to defraud the election.
While Republicans cry voter fraud, Democrats counter by charging voter suppression. The true cause of these new laws, they argue, is not to curb voter fraud, which study after study has shown to be extraordinarily rare. Instead, Democrats say, the true goal is voter suppression—laws targeting certain minority groups that tend to favor Democrats. Those who do not hold driver’s licenses, for example, are more likely to be lower-income or disabled. Since the driver’s license is by far the most popular form of Photo ID in this country, these laws effectively complicate voting rights for this segment of the population, while most others can easily breeze through the polls as usual with just one additional step. In a few cases, Democratic claims of voter fraud have in fact helped to mobilize angry voters, for example in Pennsylvania after a foolish Republican state senator announced that the true purpose of the law was to deliver the state’s electoral votes to Mitt Romney in 2012.
Proof-of-citizenship laws were restricted to state elections only (not federal) in the Arizona v Inter Tribal Council Supreme Court ruling in 2013. In 2018, a federal district court struck them entirely in Fish v Kobach, a Kansas case that was heard and decided together with Bednasek v Kobach, for which I served as an expert witness for the plaintiff. Pointing to over 20,000 registrants who were removed from the Kansas voting rolls because they did not provide proof of citizenship, plaintiffs argued that the law’s premise of voting by undocumented immigrants were baseless, and that the brunt fell disproportionately on African-Americans and college students, violating equal protection. Today, no state is actively enforcing proof-of-citizenship laws, with the possible exception of Tennessee, which has laws allowing authorities to check voter registrations with Department of Homeland Security records.
The following year, the court upheld earlier decisions refusing to intervene in alleged partisan gerrymandering, in Rucho v Common Cause. Democrats were outraged, arguing that Republicans were more likely to use gerrymandering to partisan advantage than Democrats, despite the fact that the case actually involved alleged Democratic attempts to gerrymander Congressional districts in Maryland. The Court found that there is no objective way to measure or identify gerrymandering (drawing districts to one party or group’s advantage at the expense of others), and that includes pointing to maps which make the districts appear contorted, which can be misleading.
This year, the fight is over absentee and mail-in ballots. Cries of voter fraud and voter suppression are getting louder and louder, with President Trump leading the charge for the GOP’s “fraud squad,” a term coined earlier by University of California- Irvine law professor Rick Hasan. In truth, documented cases of fraud are exceedingly rare. For example, Justin Levitt of Loyola-Marymount Law School found that that heavily-investigated elections had fraud rates between 0.0003 and 0.0025%— absolutely miniscule numbers. Lorraine Minnite of Rutgers personally followed up on allegations that voters in St. Louis listed vacant lots as their home addresses, and found that these properties actually contained buildings, mostly apartments and other multi-family housing.
On the other hand, Democratic alarms about voter suppression may be exaggerations as well. In a forthcoming book, my colleagues and I find that in general, suppressive voting laws like Photo ID and proof of citizenship (the latter now unenforceable due to court rulings) lower voter turnout by roughly 2%– more in some cases, less in others. However, there is no partisan skew to this drop—Republican voters are as likely to be turned away as Democrats. The rancor between the parties is based on a presumption that higher voter turnout benefits Democrats while lower turnout benefits Republicans, and it just isn’t true. The same holds for measures to increase turnout. A classic 1978 study by Raymond Wolfinger and Steven Rosenstone found that same-day voter registration pushed turnout up by about 2%, but there is no particular benefit to either party. A team of researchers from Stanford University found the same thing this year, this time studying states that have shifted to holding their elections entirely by mail. Their review of California, Washington state and Utah found that once again, turnout increased by about 2%. Once underlying partisan trends in each state were taken into account, neither party benefitted from this increase.
One notable exception to this trend is felony disenfranchisement. These laws not only lower turnout—3% of the voting age population in Georgia cannot vote due to prior felony convictions—they also skew the electorate toward being more Republican. States vary wildly in these laws. Vermont and Maine set up absentee voting booths inside prisons, while many Southern states—and now Iowa—effectively prevent those convicted or pleading guilty to felonies from ever voting again unless an exception is granted by the courts or the governor, which is rare. In 2018, Florida voters chose to restore voting rights to those who have completed their sentences, but the state’s legislature does not want to implement this. The laws are also widely misunderstood. Many living in states where their voting rights can in fact be restored never try to register or vote due to the mistaken belief that this is not possible or would cause them to go back to prison. Aggressive, highly-publicized prosecutions of a few individuals who voted while on parole or probation in Texas help reinforce this fear.
What are the key things to watch in 2020? First, most ballots are received and counted by the counties. Their ability to process the ballots is critical. Some urban counties such as Cuyahoga, Ohio (Cleveland) and the independent city of St. Louis, Missouri have a long, difficult history of poorly-managed elections and outdated voter rolls. This is due in part to a problem they share with many other jurisdictions: most election officials are partisan, political appointees, not nonpartisan experts in voting laws. Reforms have been attempted in these places, but the influx of mail-in ballots will put those and other election boards to the test. Clerks must be rigorously trained to carefully follow state law when validating signatures and otherwise determining if early and absentee ballots are counted or rejected. Mistakes or improper application of the law in a close race will surely mean lawsuits.
In addition to the challenges faced by counties, state laws vary in a host of ways. Some allow ballots to be postmarked by Election Day, others require that they be received by Election Day, and still others allow a short grace period. State laws vary in whether or not a voter whose ballot is rejected must be contacted and given a chance to rectify the situation, and if so, how much time they are given to do this. They also vary in terms of when notarization is required, and how nit-picky they are about rejecting ballots for mistakes such as not using the official envelope to return the ballot, or a signature that is slightly different from the one they have on file (Michael A. Smith vs Michael Smith, for example). Some married women and others who legally change their names can face particular hurdles, as can those who do not have a physical home address, including many living on Native American reservations.
Unfortunately, some states frequently considered electoral battlegrounds have among the most contentious, outdated, and poorly-organized voting procedures, including Ohio and, of course, Florida. Meanwhile, Colorado has become a national benchmark, with highly-organized, bipartisan procedures and monitoring for its vote-by-mail elections. Colorado also has careful procedures in place to update voter registries by checking frequently with change-of-address filings at the Post Office, as well as county filings for death certificates, among other things. This is a far superior approach to the method used by many states, which involves searching voter registries for duplicate names. In a sample as large as a state’s entire voting population, there will be many people with the same name and birthday. This is not voter fraud, and it often results in the removal of qualified voters from the rolls. Likewise, the notorious strategy of voter “caging”—sending postcards to voters and removing them from the rolls if the post office marks them undeliverable or if the voter does not check a box and return them—is often used to target urban communities and should be banned. In fact, it supposedly was banned as part of the NVRA, but it still happens. Many counties do indeed have outdated voting registries featuring people who died or moved years ago, but Colorado’s procedures demonstrate the right way to handle this. There is little evidence of anyone casting illegal ballots in the names of these dead or relocated voters even in places with poor procedures.
Finally, state laws also vary on whether or not the counties can begin counting mail-in and drop-box ballots right away. In some they can, in others they must wait until the polls close on Election Day, leading to a long haul for the clerks and a possibility that we will not know the winners of the Presidential election or other closely-contested races for several days afterwards. In close contests, lawsuits are pretty much inevitable, and previous court rulings are often contradictory and decided based on minutiae, not the big picture. They leave us with little precedent to use for future cases.
In general, the primary concern this year is ballots being rejected due to minor technicalities or clerical error. Evidence for fraud is minimal to nonexistent. What to do? I am not at high risk for complications from COVID-19, and I plan to vote early and in-person, arriving masked at my county election board at a time when it should not be too crowded. I recommend that others do the same, saving mail-in and drop box voting for our fellow voters whose risks from COVID are higher, except of course in those states which already hold vote-by-mail elections. However, in many states those who already requested mail-in ballots cannot change their decision, they must wait and follow through, though if local drop boxes are available they are an alternative to the mail, provided that the drop boxes are genuine. You can check online to see if a drop box location is legitimate before placing your ballot in it. All instructions for completing and returning the ballot should be read carefully, followed to the letter and triple-checked before mailing the ballot or depositing in it in the drop box. Vote as early as possible, particularly if you are mailing in the ballot.
Colorado’s example demonstrates that voting by mail works just fine with rigorous, bipartisan procedures to ensure election security. Meanwhile, nearly every other mature democracy in the world uses nonpartisan, appointed officials to administer elections. They also put the responsibility for registering voters on the government itself, not the voter. Perhaps it is time that the U.S. follow suit.
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.