As the presidential campaigns wind down and voting begins in earnest in less than two weeks, much of the conversation has turned from polls and debates to the mechanics of voting.
The concerns around voting range from fraud to disenfranchisement. Of particular note are the legislative attempts at changing the voting process, particularly in make-or-break states, such as Florida (covered in our report this week.)
We asked a panel of experts just what these concerns mean for the American electorate and what they will mean on November 6.
Suevon Lee is a reporter with ProPublica. She has previously worked as a reporter for the Ocala Star-Banner where she covered courts and legal issues. She earned a master of studies in law degree from Yale Law School in 2012 and master’s degree from Northwestern University’s Medill School of Journalism in 2006.
Brentin Mock is a New Orleans-based journalist who serves as Colorlines.com’s Reporting Fellow on Voting Rights, covering the challenges presented by new voter ID laws, suppression of voter registration drives, and other attempts to limit electoral power of people of color. His work has been published in GOOD, The Root, The Daily Beast, Newsweek.com, The Grio, The Atlantic, Next American City, Truthout.org, Alternet, Vibe.com, XXL, The Source, and Religion Dispatches.
Giovanni Rodriguez is an entrepreneur, author, and public speaker on organizational leadership, marketing, and social technology. He is the founder of a new social technology consulting company at the intersection of marketing and human empowerment. He has served as a senior member of the social-technology team at Deloitte Consulting, chief marketing officer for a publicly traded company, and managing partner of The Conversation Group (TCG). He is a founding fellow at the Society of New Communications Research (SNCR) and a board member at Latinos for Social Media (LATISM).
Lee Rowland is counsel for the Brennan Center for Justice’s Democracy Program, working on such issues as community-based voter registration, voter registration modernization, and restoring the right to vote to individuals with past criminal convictions. She currently serves as counsel to the League of Women Voters of Florida and other groups in constitutional and statutory challenges to Florida’s 2011 election law. She previously ran the Reno office of the ACLU of Nevada. Ms. Rowland is a graduate of Middlebury College and Harvard Law School.
We’ve seen a lot of growth in the amount of the proposed legislation governing voting laws in a number of states, including Florida, this election — what’s your interpretation of the flurry of bills?
Brentin Mock: I’d say a confluence of three things happened: One, the election of Tea Party candidates, which led to a hard-right wing takeover of the congressional House of Representatives and numerous state legislatures, two, the hardening influence of the American Legislative Exchange Council, which provided the models for much of this legislation, and three, an unyielding sentiment among many on the hard Right that President Obama’s presidency was illegitimately won by way of voter fraud, namely from undocumented immigrants and people with felony convictions – Latino Americans and African Americans.
Giovanni Rodriguez: There has been a very focused effort on the part of GOP legislators to enact state-level law that restricts voter rights under the guise of “voter fraud” reform. The effort has been underway for years, but Americans everywhere are just beginning to see the results.
Lee Rowland: In the past two years, state governments across the country rapidly enacted an array of new laws making it harder for millions of eligible Americans to have their say on Election Day. It is apparent that many of these laws were passed by politicians seeking to score a partisan advantage by manipulating the voting rules. That’s wrong and un-American.
Fortunately, there has been a concerted pushback against these unnecessary and harmful laws. Citizens have rejected these laws at the polls, nearly a dozen courts have overturned or weakened restrictive measures, and the Department of Justice has blocked others—rebuffing this rush to restrict voting just in time for the 2012 elections. This remarkable string of victories will help ensure we have a general election that is free, fair, and accessible for all Americans.
Is there precedence for the legislation we’re seeing?
Suevon Lee: Not to the extent we’ve seen this year. Most of these new voting laws were passed by state legislatures following the 2010 midterms, so this year’s election cycle will be the first application of many of these new laws – the ones that have been upheld by the courts, that is. The last two years really ushered in a wave of voting law changes, such as photo ID laws, early voting restrictions and more burdensome voter registration rules that opponents believe lead to voter suppression or disenfranchisement. Supporters of such measures insist they’re necessary to guard against “voter fraud” which, as plenty of reports have already indicated, occurs on a quite infinitesimal basis.
In Florida specifically, we’ve seen two such legislative measures take effect this election year. One is a much more limited window for early voting – 8 days as opposed to 14 days, and a maximum 96 hours versus a minimum 96 hours in years past. The other measure imposed a much tighter schedule for voter registration drives around the state. This led to groups like the League of Women Voters, which canvass underserved communities, to cease such drives altogether. The measure has since been blocked by a court but many say by then, new voter registration was already down as a result.
We’ve also seen Florida’s governor take executive action in the form of ordering a non-citizen voter roll purge this year: the state sent county election officials 2,700 names of potential non-citizens to flag for removal – but only 198 non-citizens have actually been identified. There’s been a lot of litigation and controversy over that initiative – for good reason.
What voter law strategies, if any, could make voting a better system?
BM: A modernized, secure online database system should be in place that automatically registers people at 18 and that could be easily updated whenever a person moves, dies, and changes names or gender. Of course, an adequate amount of resources would have to be applied to make sure this is a secure, reliable and un-hackable process. But whatever the strategy, it would have to keep voting free, fair and accessible to all eligible voters.
GR: We already have statutory and case law that protects voter rights. I would like to see greater education and enforcement of those laws rather than confuse citizens with a new legal framework.
LR: We have an outdated, paper-based voter registration system that is not only inefficient and costly, but prone to inaccuracy. Citizens still must fill out paperwork to get registered, and they can fall off the rolls due to errors or an address change. The good news is that we can harness new technology to modernize our voter registration system, reducing the opportunity for fraud and error—while adding more than 50 million eligible Americans to the rolls, permanently.
Modernizing the voter registration system means that government shares responsibility for getting every consenting voter on the rolls by using current data. Using computer technology would ensure that all eligible Americans—and only eligible Americans—are registered, and that their registration is updated when they change their address. It’s a common-sense, nonpartisan way to make our elections healthier without squeezing eligible voters out of the process.
Should voter laws be overseen by the states or should a national standard be set?
BM: There are already national standards set, and voter laws are already state-governed. It doesn’t have to be either-or. States can govern how voting laws are implemented, but there have to be checks and balances. It’s a good and necessary thing for the federal government to step in if state governing is leading to disenfranchisement or discrimination. But the question is not whether the state or the federal government should control elections, but rather how we can insert more non-partisan bodies in the process. As long as the political parties are running elections there will always be disputes.
GR: National standards are always important where constitutional rights are concerned. Voting is too important a right to be subject to whims and vagaries of state-level politics.
LR: Under our Constitution, the states and the federal government share the responsibility of ensuring all Americans get to vote. However, there is definitely a more robust role for the federal government to play in ensuring no eligible voter is ever denied the right to vote. We support federal legislation that bans deceptive tactics intended to mislead voters, sets national standards for restoring voting rights to those with prior criminal convictions who are living and working in their communities, and uses modern technology to help voters get onto the rolls. Federal laws like the Voting Rights Act and the National Voter Registration Act have already made our elections more fair and accessible. We can and must do more to ensure robust federal protections for the right of every American to cast a ballot that counts.
Where does the U.S. stand in comparison with other democracies in terms of ease and openness of voting?
LR: The United States boasts the world’s oldest representative government, but barely half of all Americans vote. We deserve an election system that befits the greatness of our nation and reflects our modern world. In the past two years, we have also seen states adopt a patchwork of new laws each requiring a different set of IDs to vote. With America’s low voter registration and turnout rates, we simply can’t afford to be making it harder for millions of eligible Americans to participate in our democracy.
Instead, we need to expand opportunities for registration and voting, and meet voters where they are. Fortunately, states are starting to do so in droves—offering online registration, expanding early voting, and using technology to help voters get, and stay, registered. We must continue to expand the opportunities to register and vote to live up to our promise as the world’s greatest representative democracy.
What’s your take on voting restrictions for ex-felons?
BM: People who have been released to society and who have paid their debt for mistakes should be able to participate in democracy and have a say in who is making decisions over their lives, especially if they are working and paying taxes. Many felony disenfranchisement laws have roots in racist Black Codes laws from the late 19th/early 20th century, the post-Reconstruction era when white lawmakers in the South were actively working to prevent newly freed African Americans from amassing political power. For that reason alone, these laws should be reversed.
LR: The Brennan Center works nationwide to restore the vote to people with past criminal convictions on both the federal and state level. State laws that exclude Americans with past criminal records from voting remain the single biggest barrier to the franchise. 5.85 million American citizens are not allowed to vote because of a past criminal conviction, and as many as 4.4 million of these people live, work, and raise families in our communities, but are still denied the right to vote.
Felony disenfranchisement laws in the United States are deeply rooted in the troubled history of American race relations. Even today, 13% of African-American men have lost the right to vote, a rate that is seven times the national average. In addition, these laws are counterproductive—studies indicate that those who cast a ballot are less likely to end up back in prison. We work with communities of faith and law enforcement experts to expose disenfranchisement laws as unnecessary relics of our past that must be eliminated to give every citizen the opportunity to participate in their communities and in our democracy.
Is a system ensuring the use of identification to vote simply one that aligns with the world we live in today? A world where proof of identity is merely another measure of security?
BM: There are already identification measures in place for votes through the voter registration process and the legal penalties involved for identity theft.
GR: In theory this sounds nice, but in practice it disenfranchises voters — the poor, the elderly, minorities, and youth. There is too little evidence of in-person voter fraud to justify the wholesale restriction of votes.
LR: Everyone can agree that all voters should demonstrate that they are who they say they are before voting. But instituting strict documentation requirements, like many of the recent photo ID laws have, is not the solution. Studies show that as many as 11 percent of eligible voters do not have government-issued photo ID. That percentage is even higher for seniors, people of color, people with disabilities, low-income voters, and students. Many citizens find it hard to get government photo IDs, because the underlying documentation like birth certificates (the ID one needs to get ID) is often difficult or expensive to come by.
Unlike other aspects of daily life, the right to vote is fundamental and constitutionally-protected. If we are to live up to the American creed that we are all created equal, we need voter ID rules that do not risk excluding millions of eligible citizens from participating in our democracy.
Is there a correlation between the Citizens United decision (unlimited campaign donations by individuals and corporations) and the rise of voter ID laws?
BM: Both kinds of laws continue to uneven the playing field for the average voter who wants and deserves to participate in democracy regardless of their income, driving or housing status. It may be strange to some people that a person doesn’t have a photo ID, but being strange is not a disqualification for voting. Most people don’t have the kind of disposable income where they can donate thousands and millions of dollars to a SuperPAC, but having modest income shouldn’t mean that your vote qualifies any more or less than that of a billionaire’s.
LR: The correlation is that the increased influence of money in politics and new rules restricting the number of Americans who can vote both pose serious threats to our democracy. Citizens United, and subsequent decisions, paved the way for super PACs and other independent groups to spend millions of dollars this election, sometimes undisclosed. This allows a few wealthy donors to crowd out the voices and influence of average voters. At the same time, politicians are manipulating voting rules in a way that makes it harder for certain Americans to vote. There’s a theme here: Ordinary Americans risk losing the right to have a say in how our democracy is run. We need to empower every American voice and ensure that politicians represent the will of all the governed—not just the privileged few who benefit from a rigged system. We support policies that empower small donors, increase transparency for political donations, and ensure that every voice, and every vote, matters.
Is there worry that voter ‘confusion’ (an opaque view of the rules governing how to vote) will prevent turn-out in key states, such as Pennsylvania, where there is evidence that billboards and ads may be misrepresenting Election Day rules?
SL: Yes. Part of the problem in these swing states is the protracted litigation: robust challenges to proposed laws have bumped up against ongoing state-led campaigns to educate voters of these new rules. So, for instance, in Pennsylvania, we’ve heard reports of not-yet-removed billboards and other ads informing voters they would need to bring photo ID to the polls, even though in early October, a state judge said such photo ID wouldn’t be required this election.
In Ohio, another key state, there’s been a lot of controversy over a proposed shortened early voting period. The U.S. Supreme Court recently declined to take up the state’s challenge to a federal judge’s order blocking this measure. For the average Ohioan voter inclined to vote early who hasn’t closely followed such late-breaking developments, could that discourage turnout? Possibly, but we don’t know for sure.
Finally, there have been reports of massive billboards in places like Ohio and Wisconsin cautioning in LARGE and BOLD font how voter fraud is a felony that can lead to 3 ½ years’ prison time and as much as a $10,000 fine. All we know at this point is that a “private family foundation” – identity still to be determined – has sponsored such signage, and that they’ve surfaced in mostly lower-income neighborhoods. Is there potential to discourage turnout as a result of voter intimidation? Perhaps, but again, we can’t know for sure.
BM: Yes, there is worry. People are carrying on with their normal lives, taking their kids to school, getting to work, sometimes two or three jobs in one day, picking the kids up, clothing and feeding them. Many people with busy lives don’t have time to keep up with the changing minutiae of voter laws, or the time to research them so that they can discern information from misinformation. The people who design these billboards and peddle misinformation understand this, and they exploit it. Groups like True the Vote stand waiting for such confusion to happen so that they can re-brand it as voter fraud, or as reasons to have voters purged. This is why government agencies and their election administrations should be aggressive and pro-active about getting clear, understandable voter information to the electorate.
GR: Yes, we should be worried. Historically, confusion over voting rights has worked to suppress the vote, particular with groups – like African-Americans and Hispanics – who have been targeted with more overt forms of suppression and intimidation. The billboards that went up in Wisconsin and Ohio were especially egregious — they warned of the harsh consequences that could result from voter fraud. And keep in mind that Wisconsin and Ohio are two battleground states in this election. The suppression of votes in these and other states could affect the outcome of the election.
LR: Unfortunately, every election cycle, many voters—disproportionately those in minority communities—are confronted with information designed to prevent them from voting or casting meaningful ballots. These incidents reflect a rash of voter deception and intimidation wholly at odds with the spirit of our democracy.
Worse still is that today in most states they are simply not against the law. Nor is there any authority charged with investigating these incidents and providing voters with the correct information. The Brennan Center supports robust state and federal laws criminalizing and correcting the deliberate spread of false information to mislead voters.