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The Politics of Voter SuppressionDefending and Expanding Americans' Right to Vote$

Tova Andrea Wang

Print publication date: 2012

Print ISBN-13: 9780801450853

Published to Cornell Scholarship Online: August 2016

DOI: 10.7591/cornell/9780801450853.001.0001

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How to Increase Participation

How to Increase Participation

Chapter:
(p.126) 9 How to Increase Participation
Source:
The Politics of Voter Suppression
Author(s):

Tova Andrea Wang

Publisher:
Cornell University Press
DOI:10.7591/cornell/9780801450853.003.0009

Abstract and Keywords

The voter inclusion principle argues that vote suppression for partisan gain is virtually never legitimate, but increasing participation through legal and legislative maneuvers is legitimate and ethical, even if it is to the disproportionate benefit of one side. The previous chapters have discussed the ways in which the political parties have relentlessly violated this principle. This chapter explores how they can embrace it. The parties and candidates can play a primary role in strengthening democracy by increasing inclusion in a number of ways throughout the electoral process. Recommendations for partisan action are provided that follow the trajectory of this process, from voter registration through vote counting. The voter inclusion principle does not require that parties set aside partisanship or not seek electoral advantage. It does, however, require that parties do so by expanding the electorate.

Keywords:   vote suppression, voting rights, voter exclusion, political parties, voter inclusion, democracy, electoral process, voter inclusion principle, partisanship

The voter inclusion principle argues that vote suppression for partisan gain is virtually never legitimate, but increasing participation through legal and legislative maneuvers is legitimate and ethical, even if it is to the disproportionate benefit of one side. Until now, I have discussed the ways in which the political parties have relentlessly violated this principle. Here I explore how they can embrace it. It is a formula for improving our democracy. Perhaps in some instances, it is also a recipe for winning elections.

The parties and candidates can play a primary role in strengthening our democracy by increasing inclusion in a number of ways throughout the electoral process. My recommendations for partisan action will follow the trajectory of that process, from voter registration through vote counting. The voter inclusion principle does not require that parties set aside partisanship or not seek electoral advantage. The principle does, however, require that parties do so by expanding the electorate.

(p.127) Registration Reform

Studies showing varying effects on actual turnout notwithstanding, there are without question critical disparities in who is and is not registered to vote in this country. As a necessary initial step to participation, we must recognize that this imbalance is not sustainable. Both parties have political reasons to want to see registration reform work, and in pushing for these ideas, they will improve democracy in the process.

As has been discussed, the National Voter Registration Act provision regarding public assistance agencies has been neglected. Democrats particularly have reason to believe that it would be useful to fight for more rigorous adherence to that provision. Democrats, who are somewhat more mobile than Republicans, should also be concerned about the failure of states to enforce NVRA rules that require election officials to allow a voter who has moved within the county to reregister on Election Day. At the same time, there is reason to believe that the DMV provision of NVRA, which is also not operating at full power, disproportionately is of use to Republicans.

It is obvious that people who make use of public benefit agencies tend to be lower income, are more likely to be a minority, and more likely to lean Democratic. In 2004 the lowest-income Americans voted for John Kerry over George Bush by a margin of 2 to 1;1 in 2008 Obama trounced McCain among these voters by a 3-to-1 margin.2 Moreover, research has found NVRA to be most beneficial for people who move more frequently,3 who are more likely to be Democrats. While, as stated, registration may not necessarily translate into turnout, it is a necessary prerequisite that must be met. Thus, it makes sense politically for Democrats to push hard for enforcement of this already existing election law. But it also makes sense ethically and for democracy’s sake because it potentially expands the franchise among the voters who are now most marginalized politically and socially.

Democrats should not stop at a litigation or lobbying strategy for enforcement of the act, however. As elucidated, for election reforms such as NVRA to work, parties need to intercede and make them work. Hence, it is incumbent upon Democrats, both politically and for democracy, to engage in major public education about the opportunities to register to (p.128) vote at public agencies, and to teach people about their right to be afforded those opportunities while interacting with public assistance programs.

But it makes sense for Republicans to urge effective compliance with NVRA, too. As noted, more Republicans than Democrats seem to register through contact with DMVs. As was described, when NVRA first passed, more Republicans were taking advantage of the law’s provisions because far more people were registering through the motor-voter provision than were registering through the agency-based provision of the law. More so than the rest of the NVRA provisions, registering through a DMV is also more likely to indicate turnout. Research finds the motor voter provision increases turnout by 4.7 percent.4

It has become clear that DMVs are not doing a great job of following the policies and procedures of NVRA. There have been several reports over the years of voters registering at DMV offices only to find themselves absent from the registration list come Election Day because the form somehow never made it from the DMV to election administrators and onto the rolls, angering and disenfranchising many voters.5 According to a memo to the Department of Justice from Demos and other election reform organizations, in 2008 “press reports and calls coming into the 1–866-OURVOTE Election Protection hotline indicated many instances of problems with voter registration at motor vehicle departments. Specifically, in states across the country, citizens registering to vote at motor vehicle departments are not appearing on states’ voter rolls, suggesting that motor vehicle departments are failing to transmit completed voter registration applications to the appropriate elections officials, in violation of Sections 5 and 8(a)(1)(A) of the NVRA.” The memo goes on to cite numerous incidents in which voters who registered through the DMV went to the polling place only to find their names not on the list.6 In Maryland, it was found after the 2008 and 2010 elections that 25 percent of citizens who registered to vote through the DMV did not make it onto the voter registration list.7

Therefore it makes complete sense for the Republican Party to want to do more to ensure that the DMV provisions of the law are enforced and possibly strengthened. At the same time, this would be good for democracy, because voters would not be disenfranchised due to administrative foul-ups.

The NVRA also provides for mail-in registration that allows organizations to more easily conduct registration drives. Under our current system, third-party registration groups are necessary to fill the void left by the (p.129) government in its failure to proactively ensure Americans are registered to vote. Laws should not be enacted that unnecessarily suppress these groups’ efforts.

There is no question that these groups are responsible for the registration and potential participation of millions of voters. In 2004, at least ten million new registrations were submitted by larger voter registration groups alone, over 20 percent of the total number of registrations.8 Nonpartisan liberal-leaning groups have registered huge numbers of poor and minority voters whom no one else would have reached out to. Right-leaning groups have effectively targeted churchgoers.9 Several groups focus their voter registration drives at young people.

A few groups have had serious problems with their volunteer registration procedures,10 but overall the good these groups do in terms of boosting participation far outweighs any rare difficulties they may cause. Moreover, taking steps like ensuring that groups train their workers properly, requiring groups to make best efforts to adhere to the same turnaround time that agencies must under NVRA—ten days—and banning the paying of workers by the number of registration forms they return are effective ways to overcome many of the problems that have occurred, and strike an appropriate balance under the voter inclusion principle.11 Accordingly, the principle dictates that third-party registration groups be allowed to operate, albeit within certain reasonable constraints.

No nonpartisan group, as all these organizations are, is legally permitted to target only members of one party or another or to refuse to register someone based on their party preference. Yet Republicans, instead of offering reasonable solutions to address problems with the system, have taken steps to make it harder for these groups to do their jobs. As a result, such measures do not represent ways of protecting other strong countervailing democratic values.

Perhaps some Republicans believe (and they may be right) that there are more voter registration organizations that target Democratic-leaning constituencies. Unfortunately, the Republican response to this has been to seek to diminish the abilities of these groups to bring new voters into the system. But wouldn’t a more appropriate response, from the point of view of promoting democracy, be to encourage the creation of third-party organizations that might also bolster registration among groups seen as likely to vote for Republicans?

(p.130) We should not rely on advance registration through these methods alone. Election Day registration (EDR) is a vital reform that ought to be pursued throughout the country. Allowing voters to register at the same time they go to vote is the one structural change for which there is consistent evidence that it improves turnout dramatically. Numerous studies conducted on EDR have repeatedly demonstrated a significant positive impact on voter turnout,12 and the data say that there is no significant partisan advantage inherent in EDR, despite the resistance to it from many Republicans.13

EDR simplifies the registration process by allowing voters to register to vote on Election Day when they arrive at the polls. It is currently offered by Maine, Idaho, Minnesota, New Hampshire, Wisconsin, Montana, Iowa, the District of Columbia, and Wyoming, and for the first time in 2008 during early voting in North Carolina. North Dakota does not require registration at all.

In the 2000 and 2004 elections, turnout in states with EDR was 8 to 15 percentage points higher than in states that did not offer EDR, and overall, in the 2004 election, voter turnout was 13.8 percentage points higher in states that offer EDR (73.8 percent turned out) than in states that do not (60.2 percent turned out). Of the five states with the highest turnouts in 2004, four offered EDR.14 The pattern repeated itself in 2006 when the average turnout in EDR states was 48.7 percent, compared with 38.2 percent in states without EDR.15 The trend continued in 2008. As always, the states with the highest turnout in the country were EDR states: Iowa (69.2 percent), Maine (73 percent), Minnesota (77.9 percent), New Hampshire (71.9 percent), and Wisconsin (72.2 percent).16

Election Day registration is a reform where greater attention by the parties in particular could do much to increase its already measurable benefits. It is a tool that with more party activity could raise voter participation rates even higher than it already does. It is therefore something that the parties should not only get behind, but which they also have an ethical obligation to promote to its maximum potential for the good of democracy.

The Democratic Party has particular reason to push EDR. The United States is a highly mobile society, with tens of millions of people moving every year. In 2005, forty million Americans moved. Latinos, the unemployed, and renters, who tend to be lower in income, had the highest rates (p.131) of moving. Younger citizens are also more mobile than the rest of the population.17 In the 2008 presidential election, 21 percent of potential voters between the ages of eighteen and twenty-nine did not register because, they reported, they did not meet the registration deadlines in their states.18 At the same time, in 2008, on average, 59 percent of young Americans in EDR states voted—compared with 50 percent of their peers who did not live in EDR states.19 In recent elections, young people have been voting disproportionately for Democrats.20

Both parties can easily use Election Day registration to their advantages while doing the positive work of increasing turnout at the same time. The parties already have lists of who is registered to vote. If they can obtain other membership lists from various organizations that include their likely loyalists and compare them to the voter registration lists, they can very specifically target voters who are their natural constituents but are not registered in the final days leading up to and on the day of the election.

Moreover, with EDR, parties and candidates are forced to speak to all potential voters—not just already registered, known, and likely voters. Although this may be what makes current politicians reluctant to adopt EDR—elected officials of all stripes would prefer to know well in advance who is in the electorate—from the perspective of a healthy democracy it is one of its most attractive features. In EDR states, parties are more likely to see it in their interest to go beyond the usual suspects in their mobilization strategies, including targeting younger people, who are more mobile, may only start paying attention to the campaigns after traditional registration deadlines have passed, and are less familiar with registration rules. The Democratic Party should mobilize some who fall outside the profile of a consistent voter in EDR states in the last days leading up to the election, especially minority, younger, poorer, and less-educated voters. While according to a cold political calculus this would be a relatively worthless exercise in most states that have voter registration deadlines of up to thirty days ahead of time, it would likely be quite a sensible shift of resources in the closing days of the election in EDR states. The strategy could be one of throwing all mobilization efforts into turning out registered likely voters in the early days of the campaign while shifting at least some of the attention to a greater swath of the nonregistered voters in the late days. Republicans too could employ such a strategy among their natural but unregistered constituents.

(p.132) As the parties can use EDR so effectively to increase turnout among those who should be their voters, they should be pressing hard for passage of EDR laws in other states and at the federal level. If EDR was national policy, the rate of voter registration in this country would rise by an estimated 5.7 percent, representing hundreds of thousands of voters.21

Eventually this country should be moving in the direction of automatic, permanent registration, otherwise known as universal registration. The idea that the federal government should assume complete responsibility for registering citizens to vote, as is the practice of most other democracies of the world, has started to catch on not only among voting rights advocates, but also with a wide range of election administrators and policymakers. However, getting there is likely to be a fairly slow process on any large scale.

In the interim, we should make the system of registration as easy to navigate as possible for all the people, including those with the least resources, while still maintaining the integrity of the voting system. A number of reform proposals exist that move in this direction, to the benefit of American democracy and political interests.

One way that has been suggested to start the process going is ensuring that all high school graduates are registered to vote. The organization Fairvote has proposed making voter registration a requirement for graduation, mandating registration to register for classes at colleges and universities, or making voter registration a community service requirement. Fairvote and others have further recommended that the registration age be lowered to sixteen so that schools can engage all students—including those that may not graduate—in the process of learning about the election system. These students still would not be able to vote, but when they turned eighteen they would automatically receive a notice of eligibility and a booklet of information about the voting process.22 Several states have already enacted such programs.23

It is also important that the thorny issue of college students voting from their college campuses be sorted out in a way that maximizes student participation. As noted in the discussion of the 2008 election, a variety of efforts have been made to suppress student voting, and this may well worsen in the years to come. Given the current trend of young people and especially students toward support of Democrats, that party should make every effort to get these clarifying rules passed and enforced. Students (p.133) must be given the option of voting from their campus address. By law, if students consider their college to be their primary residence, they are entitled to register from their campus address. Students do not have to know where they are going to be living after graduation in order to consider the campus their residence; they just have to have no present intention to go back to their parents’ house. The preponderance of case law has overturned laws that place the burden on the students to prove that school is their primary residence.24

As has also been discussed, strict voter ID laws are also very problematic for students. Very often students do not have picture ID, such as a driver’s license, with their current address on it, and in restrictive ID states, college IDs are not legally sufficient to vote. All states should allow students to use a current student ID as identification for voting, and must allow for students with out-of-state driver’s licenses to use them for voting.

Anyone who cares about improving the low rates of participation among students ought to insist on these measures. From a political perspective, it makes sense for both parties to champion student voting rights in their efforts to secure majorities in the future. Studies indicate that “party identification develops in early adulthood,” after which point a person’s party identification generally remains consistent for the rest of his or her life.25

Taking steps to improve youth participation in the 1980s and much of the 1990s would have been to the distinct advantage of the Republicans. In 1986, Norman Ornstein wrote that the party that secures the youth vote is the party in power in the next generation. Republicans had a strong hold on the youth vote in the 1980s, when Ornstein was writing, and by the 1990s the Republicans held power in Congress, a grip that has only recently begun to loosen.26 However, polls now show current young voters are leaning Democratic—the youth vote went for Obama by a staggering 2-to-1 margin.27 This could easily flip again. The point is, increasing the pool of young registrants gives both parties easily targeted new voters that they can direct their messages at and hope to attract to the party for the long term.

Newly naturalized citizens are another group that could be targeted in a campaign toward universal registration. This should be appealing to both parties, who each have natural constituencies among different immigrant groups and should both be competing for the Latino and Asian votes in particular.

(p.134) Numerous organizations have urged that registration forms be made available at naturalization ceremonies.28 Thanks to registration groups such as the League of Women Voters, there sometimes are volunteers at the ceremonies to provide the new citizens with registration forms and information about their new voting rights. The parties sometimes conduct drives outside the ceremonies as well.

Nonetheless, it should undoubtedly be a government responsibility to provide voter registration services at all naturalization ceremonies. The United States Citizenship and Immigrant Services office (within the Department of Homeland Security), the entity responsible for naturalization ceremonies, should be designated as a voter registration agency under the NVRA. This would mean distributing voter registration materials and voting information, assisting voters with those forms, collecting them, and sending them to the appropriate election official in the jurisdiction at the time a new citizen is sworn in at all naturalization ceremonies.29 This would seem rather unobjectionable, and yet it has proved difficult to bring about within the halls of the citizenship agency and the U.S. Capitol.

Naturalization rates among immigrants are rising steadily in general, to about 650,000 a year.30 And as might be expected, a large proportion of those who are naturalizing or are likely to naturalize over the next few years are Latinos, a group increasingly likely to vote for Democrats. Indeed, in the 2006 congressional elections, Latinos voted for Democrats 69 percent to 30 percent.31 In the 2008 election it was 67 percent for Obama and 31 percent for McCain. The Republicans should also support the measure. They are seeking to regain their share of the Latino vote, other immigrant constituencies may well lean in the Republican direction, and there is evidence that many new Americans have undefined or weak party preferences and are open to the overtures of both parties.32

The Campaign Period

One of the most troubling aspects of recent elections has been the proliferation of “deceptive practices” leading up to the election. Deceptive practices are efforts that seek to mislead voters about the voting process in such a way as to prevent them from voting, such as by providing blatant misinformation about where or when to vote. In 2007, then Senator Barack (p.135) Obama introduced legislation that would criminalize deceptive practices; when such practices were discovered, officials would be required to immediately take action to ensure that the deception was publicized and, working with community groups and others, make sure the correct information was disseminated to the affected community. In December 2011, senators Charles Schumer (D-NY) and Ben Cardin (D-Md) introduced a similar bill, the Deceptive Practices and Voter Intimidation Prevention Act of 2011.33

A law such as this, whether enacted at the federal or state level, might provide a boost to turnout. First, voters would be less likely to be led astray and end up not being able to vote or not having their vote counted. In addition, voters generally would have more confidence in going to the polls because they could feel assured that the information they received about the process was likely accurate. Indeed, it is possible that a campaign to disseminate corrective information might even boost turnout in itself, since voters would become aware of the deception that had been directed at them and become all the more motivated to defy it.

Passage of such laws is also clearly in the parochial interest of the Democrats. Deceptive practices are almost always squarely targeted at Democratic constituencies, such as African American voters, and occasionally directly attributable to Republican campaigns.34 Therefore, the increase in turnout resulting from such measures would redound to the Democrats.

By championing such measures, though, Democrats would also be giving a huge boost to the integrity of elections. Moreover, the perniciousness of such blatant disinformation campaigns is such an affront to any concept of just elections that measures to combat them should be supported vigorously by members of both parties. Such practices violate the voter inclusion principle in every imaginable way. They squarely take aim at voting rights and are designed purely as a vote suppression mechanism.

Besides increasing communication in order to debunk deceptive information, we need to do a better job of informing Americans about the voting process. Dennis F. Thompson speaks directly to voter education in his discussion of just elections, saying “If we know that some modest improvements in voter education could decrease the frequency of voter error and failed to take steps to implement them, we are in effect denying less experienced voters the opportunity to cast a ballot. Equal respect demands more than that.”35

(p.136) Democrats would be wise to back reforms that promote increased voter education about the electoral process and how to vote, because the party’s demographic base is likely to be somewhat less educated and lower income and thus less likely to have the resources necessary to seek out this kind of information. For new voters and voters who have been historically marginalized, the voting system can seem daunting. For these voters, being prepared before entering the polling booth can give them the confidence to turn out. Indeed, an earlier version of the Help America Vote Act required that states mail, no later than ten days before a federal election, a sample ballot, information on poll hours, and a notification of voters’ rights. A sizable number of the members of the National Commission on Federal Election Reform of 2001 recommended that every jurisdiction be required to provide every voter, in advance of the election, a sample ballot and basic information about voting procedures.36

Sending a sample ballot and polling place information before the election can have an impact on turnout. Research has demonstrated that sending a sample ballot raises turnout by 2 percent. Among the least educated voters, sending a sample ballot leads to a 6.2 percent increase in participation. Sending polling place information raises turnout by 2.5 percent overall, and 7.4 percent among the least educated.37 Other studies have shown these reforms to be particularly effective in turning out younger voters.38

Both parties would also potentially be helped by requiring, through FCC licensing, that television and radio networks provide a certain limited amount of free air time not only for candidates or campaign messages, but for messages about how to vote. Since 1934, broadcasters have been obligated to serve the public interest in exchange for free access to the public airwaves, and with the transition to digital television, there is now a unique opportunity to see this obligation put to work.39

Achieving this might best be done by adapting a 2002 proposal.40 Paul Taylor and Norman Ornstein suggested a system in which the two major political parties would be provided block grants of broadcast vouchers to use as they saw fit, including passing the time on to candidates. Minor parties would be eligible for smaller blocks of time. In a voter inclusion version of this system, parties would receive block grants to air a certain number of ads on any broadcast outlet regarding how to vote and make sure your vote counts. Parties could then strategically use this information to try to target it to voters they think are more likely to be (p.137) friendly. For example, the Democrats might see it as advantageous to use their free air time on ethnic media, Republicans on Christian evangelical stations.

Free air time has long been touted as a means toward increased participation.41 There is evidence to suggest that armed with more knowledge, more people will participate. Studies conducted in other countries show a strong correlation between level of knowledge and participation. Indeed, some observers believe that lack of knowledge about politics and the political system is the defining reason behind low participation in the United States.42 Therefore, even partisan-driven voter education efforts through the airwaves and otherwise are socially and politically beneficial in that they are likely to boost political engagement.

Voting before Election Day

There is just cause to support the continuation of and improvement upon limited in-person early voting. While extreme early voting, such as for several weeks before Election Day, goes against the grain of the voter inclusion principle, early voting over the course of a couple of weeks would be an ethical and democratic good under certain circumstances, which, to some extent, it is incumbent upon the parties to create. The Democrats demonstrated in the 2008 election that early voting could be used to the party’s advantage while also creating this good.

Thirty-two states have some form of in-person early voting, and for most of these states this is a new development of within the last six years. The number of Americans casting their votes early has been rising steadily over the last few years, to almost one-third of voters in 2008. The trend is likely to continue in that direction.

Up to the 2008 election, generally speaking, the preponderance of the evidence told us that early voting does not increase turnout, but merely provides another means of voting for people who would have voted anyway. Even still, there were arguments for some amount of early voting in an age in which working people are overtaxed as it is. Not being able to conveniently get to the polls on a certain day within certain hours is understandable. Election administrators also tend to favor it because it eases the burdens and workload of Election Day itself.

(p.138) More important, the 2008 election demonstrated what research had previously indicated: the turnout picture starts to change once the parties swing into action. Republicans traditionally have had a built-in advantage when it comes to early voting, making it a measure they too should support: data demonstrate that early voters more often are Republicans, which given the demographic profile of core Republican voters is not surprising.43 But for the Democrats, 2008 showed that some extra effort can make this reform one that works for their party, too, and for the cause of increased voter participation.

Important research has found that while early voting, in the absence of party activism, does not lead to new voters participating, when early voting is “exploited” by the parties, it does lead to a significant increase in participation. As the authors of the research note, “early voting is not self-actuating”; it requires a push from the party apparatus.44

This was already seen to some degree in 2004 when the parties provided buses to audience members at rallies to actually go to poll sites; but it really took off in 2008. Almost one-third of voters voted early in the 2008 election, many of them proactively mobilized to do so by Democrat Barack Obama’s presidential campaign.45 Indeed, the margins Obama racked up during early voting were key to his success.46

Republicans are certainly just as capable of using early voting to increase participation among the party faithful, as their vaunted turnout machine demonstrated in past elections, making early voting a reform they should support. Democrats and Republicans should push for longer and more varied hours for early voting, and longer poll opening hours on Election Day as well. If early voting’s utility is supposed to be a convenience, it actually needs to be convenient for working people. This means early morning, evening, and weekend hours. The research cited above indicates that this too would result in a further boost in voting rates.47 While data are mixed, longer poll hours may boost participation on Election Day as well.48

The question arises that if some early in-person voting is a good thing, why limit it to only a couple of weeks? There are several reasons why extending the number of early voting days beyond this point is not, on balance, justified. First, asking that the parties and campaigns invest in serious mobilization for a couple of weeks is one thing; asking that this activity go on for several weeks is quite another. Parties and campaigns simply are not likely to be able to sustain such activity over such a long period, (p.139) resulting in diminishing returns on the reform; simply from a financial perspective, it would be too great a strain. Research shows that, especially when campaigns are not able to access information about who is voting early, early voting does increase campaign costs substantially.49 In an era of ever-escalating campaign costs and the concomitant need for the candidates, the parties, and their supporters to continuously raise increasing amounts of money, this is not a desirable outcome.

There is also the very serious concern about early voters voting on the basis of what turns out to be obsolete or wrong information. Significant information can emerge or a noteworthy event take place toward the end of the campaigns that might influence voter choices. A voter might even be effectively disenfranchised by casting a vote too early if a candidate should die (as was the case with Senator Paul Wellstone in 2002), drop out of the race (like John Edwards during the 2008 primary), or be disqualified in the waning days.

Another form of early voting is “no excuse” absentee balloting—systems under which anyone can vote by mail in advance of the election and the voter does not need to provide a justification for doing so. Although Democrats have been pushing hard for an expansion of no-excuse absentee balloting and vote by mail, the voter inclusion principle pushes back somewhat. Democrats believe that the greater convenience mail balloting provides, and the ability for the party in some jurisdictions to actively encourage loyalists to vote absentee, automatically means it will be helpful to their cause. There is no evidence, however, to suggest that more absentee balloting equals more Democratic votes. Moreover, most research shows that as currently conducted, no-excuse absentee balloting has little impact on voter turnout overall and brings some arguably negative qualities to bear on the democratic process that outweigh some of the benefits.

The overwhelming majority of scholarly study has found that liberalized absentee ballot rules do not increase voter turnout in major elections in any significant way (the evidence is more mixed for more local elections). Rather, they just give people who would have voted anyway another—perhaps more convenient—way to do so. It is a reform that does very little to engage new voters and bring them into the system.50 There is one caveat to this finding, however. Research also finds that the one circumstance where absentee balloting has a positive impact on turnout is if it is combined with party mobilization. However, once again such activity (p.140) generally just retains more people who are already likely voters. It is an effective way for parties to turn out their bases early by sending known partisans, where lists of such individuals are available, absentee ballots that are already filled out—then all the voter need do is sign it.51

Yet the voter inclusion principle still warns against expanding absentee balloting without serious safeguards, for a number of reasons.

First is the issue of fraud. While many claims about voter fraud are largely unfounded, claims about fraud through the absentee ballot process, while exaggerated, have much more credibility. In a report submitted to the U.S. Election Assistance Commission, I and a colleague interviewed two dozen experts and advocates in the field from across the political spectrum and concluded that “there is virtually universal agreement that absentee ballot fraud is the biggest problem.”52 Similarly, in our analysis of six years’ worth of news articles on Nexis, absentee ballot fraud was the one area in which there had been a substantial number of official investigations of allegations and charges filed. We also found that in the existing research and literature on the issue of fraud, the opportunity for fraud in absentee balloting was an area of common concern. Numerous scholars and commissions studying elections have pointed out the susceptibility of absentee ballots to fraud, and the anecdotal evidence that this does occur is strong.53 Such fraud can take place in many ways, the most prevalent being individuals filling out and submitting absentee ballots with fake names or the names of others; paying voters for their absentee vote, which can more easily be done because it is not a secret ballot and can be checked by a third party; and coercion of voters when filling out their absentee ballot—for example voters who are elderly or under pressure from someone with financial or perceived moral authority over the voter (such as an employer or a religious leader of a congregation).

Aside from these more pragmatic considerations, there are other negatives to democracy associated with absentee ballots. Language minorities have a more difficult time completing and having their absentee ballots counted than native English speakers.54 In addition, having voters voting on dramatically different days—usually starting much farther out from Election Day than when early in-person voting begins—is problematic because it takes away from the idea of having a time of collective democracy.55 Finally, as with extended in-person early voting, the need for a prolonged get-out-the-vote effort likely results in escalating campaign (p.141) costs and further damage to the ideal of limiting the influence of money in campaigns.

As a result, in order to come out on the right side of the voter inclusion principle, at a minimum any plan to expand “no excuse” absentee balloting ought to follow guidelines that the organization Common Cause has done an excellent job of assembling. Among these are that citizens should always have the option to vote in person; in order to avoid fraudulent ballots, vote-by-mail programs should adopt the practice of requiring voters to sign ballot envelopes and comparing those signatures to the signatures on the voter’s registration file; and workers engaged in signature comparison ought to be fully trained in how to do so accurately. Moreover, mailin ballots should contain prominent notices that ballots must be filled out privately unless a voter requires assistance, and that it is a felony to offer anything in return for a vote or to coerce any person while that person is filling out his or her ballot. Election officials should contact voters in the case of a lack of a signature match or an overvote and give the voter the opportunity to correct it.56

The one exception to the arguments against absentee ballots is, of course, overseas and military voters.57 Despite recent legislative improvements, such voters, known as UOCAVA voters, for the Uniformed and Overseas Civilian Absentee Voting Act, face enormous challenges in voting, are often disenfranchised and, among civilian voters, have very low participation rates.

While about a million UOCAVA absentee ballots were requested for the 2006 election, sixteen million voters could have applied for such ballots and did not. Moreover, only one-third of those ballots requested were actually cast and counted. In sum, only 5.5 percent of eligible UOCAVA voters actually participated successfully in the 2006 election.58 Overall, the Overseas Vote Foundation found that one in five UOCAVA voters who sought to vote in the 2006 election were not able to cast a ballot successfully. In 2004, the National Defense Committee did a survey finding that 24 percent of UOCAVA voters were unable to vote successfully in that presidential election. Earlier studies have found that many overseas and military voters did not vote in the 2000 election because they received their absentee ballot too late or never.

In 2009, the U.S. Congress passed the Military and Overseas Voter Empowerment Act (MOVE) to try to address some of these failings. The new (p.142) law allows for the exchange of materials between election officials and overseas voters electronically, including electronic transmission of ballots, and requires that election officials send blank ballots to overseas voters at least forty-five days before the election.

In its first go-round, the MOVE Act made a small but not insignificant difference. One-third of would-be overseas and military voters attempted to vote but could not, either because they did not receive a ballot on time or did not get it at all. However, this was an improvement over the 50 percent who were unable to vote for these reasons in 2008.59 According to a survey, overall nearly 11 percent of respondents tried to vote but could not complete the process, and another 12 percent did not try to vote—most often, respondents said, because of a “lack of information.” That is, these voters felt that they did not have enough information about the candidates and races to make an informed decision.60 Use of technology in the transmittal of information and material varied widely by state, and several states were unable to meet the required forty-five-day deadline, leading to effective enforcement actions by the Department of Justice that led in most cases to settlements with the states that would make it more likely that voters would receive and be able to cast their ballot on time.61

Since overseas voters are believed to trend Republican62—the Republican Party claims that it has a 3-to-1 advantage63—it is in the interests of that party to make overseas voting as easy as possible, and it ought to push for effective implementation of UOCAVA and the MOVE Act. The partisan skew is usually attributed to the military being a Republican voting bloc. Yet there are more overseas voters not in the military than in the military, and there is some evidence that the military is not the solid bloc it was once thought to be. Therefore this is a group that the Democratic Party should also analyze and strategically target for increased turnout.

Most important, it is also in the American public’s interest that Americans living in other countries and serving in the military have high rates of participation. They bring a unique perspective to the process that simply cannot be replicated or represented by domestic voters. Moreover, clearly all Americans support the rights of overseas and military voters to vote and have their votes count. Too often, overseas and military voters are not voting and not having their votes counted. Turning that around is a cause that both parties should champion.

(p.143) Surely, the Internet and e-mail could be better used to educate overseas voters about how they can cast a ballot and ensure that it is counted. The Federal Voter Assistance Program, the Overseas Vote Foundation (OVF), and other organizations that work on voting issues for overseas voters are trying to build e-mail databases and reach out to more voters. These kinds of efforts need to expand beyond these organizations. All sorts of websites that are frequented by military and overseas voters ought to include a link to voter information for such voters. This includes web versions of international publications, the home pages of websites of government agencies, universities, and nongovernmental organizations that send many Americans overseas, and any blog sites that are geared toward Americans abroad. Moreover, private multinationals that employ Americans abroad have a responsibility to e-mail their employees during election times about their rights and how to vote effectively. This same responsibility applies to institutions that send students on study-abroad programs during election periods.64

A trickier topic is sending and submitting ballots online. This raises issues of security, accuracy, privacy rights, and the right to a secret ballot. We must balance these concerns against the multitude of problems overseas voters face in getting their voices heard. A December 2008 report by the National Institute of Standards and Technology found it is relatively safe to e-mail information to voters, including a ballot, but that it is much too risky to cast a vote via the Internet. “E-mail does not provide any guarantee that the intended recipient will receive the message,” the report says. “An attack on DNS [Domain Name System] servers could route e-mails to an attacking party. This would not only result in voter disenfranchisement, but also the loss of sensitive voter information.” The report also cites the possibility of a denial-of-service attack.65 The solution may be to move toward giving all overseas voters the option of sending and receiving all materials electronically over a secure website except the completed ballot itself, provided voters are fully apprised of the potential privacy issues.

According to the OVF survey of overseas voters in the 2006 election, technical and administrative problems were not the only barrier. Nineteen percent of overseas respondents said they did not vote because they did not have enough information on the candidates and/or the issues.66

In order to increase interest and participation in the primaries, the parties ought to sponsor an overseas voter debate. Such a debate could be (p.144) modeled after the Internet debate hosted by Yahoo, the Huffington Post, and Slate Magazine during the 2008 campaign. In these forums, candidates were able to participate from whatever location they chose, and the program allowed for “real-time questions sent in by the online audience, as well as viewer questions uploaded on video.”67 Only overseas voters would be invited to participate. By taking questions from overseas voters only, the questions would reflect the concerns and issues of importance to this group of voters in particular.

In addition to being on the Internet live and archived online, the debates might be aired in group settings throughout the world, including on military bases. NGOs and the State Department could also host group sites.

Although all the procedural reforms referred to above are critically needed, they cannot operate in a vacuum. As has been noted, it has been demonstrated that election reforms tend to retain existing voters, also necessary and good, but do not always necessarily increase turnout among previous nonvoters.68 Structural reforms need an assist from the parties and the candidate campaigns, as well civic organizations. This is no less likely to be true in the realm of UOCAVA voters.

In some states, whether a person is overseas is indicated and publicly available on the voter registration list, along with that person’s party registration. It is also public information as to who has requested an absentee ballot from overseas.69 As a result, the parties could be engaging in the same types of get-out-the-vote efforts for overseas voters as they do for absentee voters in the United States. For example, the parties could, at a minimum, target their most loyal members whom they can identify as currently residing overseas and send them e-mail and mail reminders, information on how to effectively cast a ballot, and deadline dates for their state; send them the federal postcard application that they can use to register and request an absentee ballot, which is available online on the FVAP website with state-specific instructions; and even send them and e-mail them copies of the federal write-in absentee ballot (for voters who requested but have not received their state’s absentee ballot in time to vote in a general federal election), which is also available for downloading on the FVAP website. As mentioned, such party efforts around absentee voting have been statistically shown to increase participation rates. In addition, the Democratic and Republican parties should have information about how to register and (p.145) vote as a UOCAVA voter on the home page of their main websites, not just on the websites of Democrats and Republicans Abroad.70

On Election Day

Strict voter identification requirements have become the weapon of choice over the last decade to suppress the participation of voters likely to vote Democratic. Such laws patently fail the voter inclusion principle. It is clearly in the interest of electoral fairness and increasing participation that strict voter identification laws—defined as those that require very specific, limited types of identification that some citizens do not possess—be struck down and that no such further laws be enacted.

Numerous studies have demonstrated that huge numbers of people do not have the type of government-issued photo identification many states will now require. One report finds definitively that strict voter identification laws have a “negative impact on the participation of registered voters” relative to other methods of verifying identity, such as a signature match.71 Far greater numbers of elderly, minority, immigrant, and poor voters lack the requisite documentation.72

At the same time, it has been amply demonstrated that the purported justification for voter identification laws—voter fraud—is completely unsupported. Academic studies, government studies, and even data from the U.S. Department of Justice all reveal that in-person polling-place fraud—the only type of fraud that would be addressed by a voter identification requirement—is an invented problem.73 Indeed, in all the cases brought against states that have enacted stringent identification laws, not one state has been able to produce one substantiated case of polling place fraud. Not one of the amicus briefs filed in the Supreme Court case regarding identification was able to provide an apt example.74

Additionally, caging and challenges at the polls do nothing but raise the political acrimony in the midst of what is usually already a contentious election. Both parties should seek to greatly limit this practice. The bottom line is that this can go on because most states make it far too easy to challenge a voter’s right to be registered and/or vote.75 Many states allow any voter to engage in such a practice, or a political party, or any other entity that chooses to do so. States have extremely lenient standards, or no (p.146) standards at all, regarding the evidence that must be presented in order to challenge another person’s right to register or vote. And an ill-motivated challenger risks little if any punishment at all in making an unsupported challenge.76

There is simply no place in the democratic process for systematic registration challenges by people and groups outside the election administration system. The parties should support, and Congress should pass, federal legislation banning caging. The proposed Caging Prohibition Act77 prohibits challenges to a person’s eligibility to register or vote based solely on returned mail or a caging list and mandates that anyone who challenges another person’s right to vote must set forth the specific grounds for the alleged ineligibility, based on firsthand knowledge, under penalty of perjury.

In addition, states must establish fair standards for challenges. All states should have uniform challenge procedures characterized by transparency and fairness; such procedures must be designed in a way that prevents disenfranchisement or voter deterrence. Ideally, on Election Day, only poll workers—not another voter or a poll watcher—should have the legal authority to challenge a voter. Otherwise, states should enact stringent requirements for when someone can make a challenge at the polls, and the bases upon which such challenges can be made must be narrowly defined. Such challenges should be based on personal knowledge and documentary evidence of lack of eligibility. States should also require preelection challenges to be filed well ahead of Election Day, and similarly be based on very particularized charges and on personal knowledge and/or documentary evidence. The U.S. Department of Justice should also actively pursue vote caging and polling place challenges clearly based on race or ethnicity.

It is also important for the parties to support activities that make it easier for Americans who are not fluent in English to participate on Election Day. Current political trends indicate that both Democrats and Republicans should seek reforms that increase Latino and Asian voting rates, as well as those of Native Americans, especially where they are the potential margin of difference (such as in South Dakota, New Mexico, and Arizona). Numerous reports have made clear that the Latino population is rapidly increasing and that Latinos are becoming more and more a reliable Democratic voting bloc.78 At the same time, some Republicans acknowledge the need to reach out to this rapidly growing and increasingly (p.147) powerful group if their party is to be successful in future elections and in some key swing states.79

While limited studies show Asian American voters to be less partisan generally, the recent trend is for Asian Americans to vote Democratic. A major survey of Asian American voters in 2001 showed them identifying as Democrats by a more than 2-to-1 margin. Indeed, Al Gore outpolled George Bush in 2000 substantially among these voters,80 and a 2008 poll showed Asian American voters favored Obama over McCain by a 3.4-to-1 ratio.81 Like these other groups, Native Americans also lean heavily toward the Democratic Party82—by some estimates, up to 80 percent Democratic.83

However, the parties need to capitalize on this to maximize the potential advantage by getting more of these voters to vote. The voting rates of all three of these groups lag behind that of whites, for a variety of reasons, including, of course, continued discrimination and intimidation.84

Additionally, however, many Latino, Asian, and Native American voters do not speak English as their first language, potentially diminishing their participation rates. There are 8 million limited English proficiency (LEP) eligible voters; 4.5 million speak Spanish or Spanish Creole, and over 1.5 million speak an Asian language.85 Native American jurisdictions rank second to Spanish-speaking jurisdictions in the number of places where there must be language translation assistance. Studies have shown that when language assistance is not made available to these voters, they are much less likely to participate. By contrast, where bilingual services are offered, participation rates are higher One study found that in counties covered by Section 203 of the Voting Rights Act and thus required to provide language assistance at the polls, Latino voter turnout was much higher than in noncovered counties—10 to 14 percent higher.86

The parties must ensure that Latino, Asian, and Native American voters get the assistance they ought to receive if this is to be a fully participatory democracy. Democrats and Republicans should insist that any new requirements regarding increased voter education efforts, as detailed above, take appropriate account of language minority communities. This means, for example, sending sample ballots in alternative languages and requiring that any free airtime opportunities encourage use of ethnic media. In addition, though many states provide election information and material on their websites in alternative languages, many covered by Section 203 of (p.148) the Voting Rights Act do not;87 as web use becomes increasingly prevalent across a wide spectrum of groups, the parties should advocate measures that require states to do so. Jurisdictions in noncovered areas should also be strongly encouraged to provide web-based information and materials, such as registration forms, in alternative languages known to be commonly used. Several states already do this: for example, Minnesota provides voter registration forms in Hmong, Spanish, Somali, Russian, and Vietnamese. Iowa provides forms in Spanish, Vietnamese, Lao, and Bosnian.88 This is an easy, inexpensive way to get more information and easier access to limited-English speakers and should be done elsewhere.

Implementation of Section 203 requirements that language assistance be available at the polls where needed is spotty at best. Numerous incidents of noncompliance have been documented by civil rights groups, scholarly research shows that jurisdictions repeatedly fail to carry out the mandates of the Voting Rights Act, and the U.S. Department of Justice has filed a number of Section 203 voting rights lawsuits against jurisdictions over the last several years. The most wide-reaching survey of covered jurisdictions found that only 68 percent of jurisdictions visited provided the required registration materials and alternative language staff. One-seventh of the jurisdictions could not offer required alternative language registration materials, and one-fourth did not have the legally mandated language translators available to assist non-English-speaking voters.89

Parties must not only be vigilant in ensuring Department of Justice enforcement of these provisions; they must find their own ways to hold jurisdictions responsible and accountable. Implementation is left to the states and then often to the counties. Therefore, once again, action must occur at the state and local level. One element in this should include a required emphasis on the rights of language-minority voters in poll-worker training. Many of the problems occur because poll workers are not educated on how to handle voters who do not speak English well; and occasionally poll workers are overwhelmed and rude to language-minority voters.

Both parties ought also to seek state laws that address the voting needs of language-minority groups who do not meet the threshold for Section 203 coverage. Many states have groups such as these, and some include minority groups that are just shy of the mark. Providing language assistance—just the promise of such assistance in advance of the election—may do much to increase participation among these constituencies.

(p.149) A few states have already gone in this direction, providing political players a template for reform elsewhere. Under California state law, “LEP voters who live in a county that is not covered under Section 203 have the right to access a copy of the ballot, along with instructions translated into Spanish or another language, ‘if a significant and substantial need is found’ by the local election official. California’s laws also mandate that minority-language sample ballots be provided and posted in polling areas where the Secretary of State determines that three percent or more of the voting age citizens are LEP, or when citizens or organizations provide information supporting a need for assistance. Local clerks in California are required to make reasonable efforts to recruit election officials who are fluent in Spanish and other languages.”90 Under Colorado law, county clerks and registrars in all counties where 3 percent or more of eligible voters are language minorities must hire staff to assist those voters.91

Another group of voters almost as big is actually systematically blocked from the polls: people who have prior felony convictions. It is critical that we stop the practice of disenfranchising people who have in the past committed a felony and served their time and paid their dues. Currently 5.3 million Americans are denied the right to vote because of felony convictions. Three-fourths of them are no longer incarcerated, and 2 million have fully completed their sentences. All but two states disenfranchise felons who are incarcerated, and the majority continue to disenfranchise ex-felons while they are on probation or parole, while a few drag it out even further to require ex-felons to go through complicated clemency processes and/or require that they have paid all fees, fines, and restitution before regaining the right to vote. Two states, Kentucky and Virginia, continue to deny the right to ever vote again to people who have been convicted of a felony.92

Clearly for some the issue of disenfranchising former felons is a partisan issue, whether they publicly acknowledge that or not. It stands to reason. Based on a reading of the demographics, the likelihood is that loosening of felon disenfranchisement laws will bring more Democratic voters into the system than Republicans. Yet partisan advantage aside, the injustice of disenfranchising former felons so violates the voter inclusion principle that on that basis alone it must fall.

In large part because of the racial skew of the criminal laws and the criminal justice system, felon disenfranchisement systematically excludes (p.150) minorities and poor people from democracy. Some 1.4 million African American men—13 percent—are disenfranchised, a rate that is seven times the national average.93 Latinos are also overrepresented. This is not surprising, given the state of the criminal justice system. Nearly half of prisoners are African American, although African Americans represent only 13 percent of the population; and 20 percent of prisoners are Latino, even though Latinos make up only 16 percent of the general populace.94 Some of this lack of proportion is clearly due to the disparate criminal laws regarding drug crimes, as well as potential bias in the criminal justice system.

Poor people are also hit disproportionately by felon disenfranchisement laws. First, the poor are dramatically overrepresented in the criminal justice system. According to the U.S. Department of Justice in 1997, 68 percent of people in prison had not completed high school, 53 percent earned less than $1,000 a month, and almost half were unemployed or underemployed prior to their arrest.95 This is compounded by requirements in ten states that ex-felons pay all fines, fees, court costs, restitution, and other legal payments before regaining their rights.96 This further discriminates against the poor, who may literally never be able to get out from under this debt. It has been called a modern-day poll tax, and surely in effect it is.

Felon disenfranchisement cannot even be justified in principle.97 It serves to achieve no rational goal, nor does it fulfill any rational need of the criminal justice system. From the perspective of election integrity, if the point is to “cleanse” the electorate of those who are immoral, we would need more than a judge and jury to weed out all those who fit the bill in this country who are not incarcerated. It is true that we are denying felons other rights, such as free movement; but felons—even ones still in jail—enjoy many constitutional rights, such as free speech and free exercise of religion. Why single out this one right?

It is not even good for society to exclude these members of the citizenry. Indeed, in some ways it is counterproductive. Certainly no would-be criminal is deterred from committing a crime because of the threat of loss of voting rights. It strains credulity to believe that felons view loss of such a right as a core element of their punishment, or retribution against them. Disenfranchisement does not serve to rehabilitate the criminal. In fact, there is reason to believe it does just the opposite. If one accepts the argument that participation in itself leads to a greater sense of efficacy and (p.151) a stronger trust in government, restoring voting rights would aid in the rehabilitation process. It will help to reengage the person in civic society, something that we know can help reduce recidivism.98

At the same time, it may be useful to the political system to have the views of these individuals represented. As has been made clear, felons and ex-felons are disproportionately minority and poor. As we have seen, these are groups that persistently lag in voter turnout in general, and thus their views and unique experiences living and working in this country are dis-proportionally excluded from public debate and consideration. It would behoove society to have more voices from these backgrounds engaged so that our public discourse and policy decisions reflect the true makeup and the true viewpoints and concerns of the American populace.

Another more practical, nuts-and-bolts aspect of working toward reforms impacting Election Day itself to increase turnout is the fair allocation of voting machines and poll workers. As much talk as there has been about the security and reliability of voting machines over the last few years, Democrats’ electoral fortunes have likely been affected just as much or even more by poorly allocated voting machines and voting sites. The reports from the 2004 election in this regard are voluminous. Most notorious was Ohio. Several scholars, press investigations, along with the Democratic National Committee and the House Judiciary Committee Democratic staff, determined that there were disproportionately fewer voting machines available in minority and predominantly Democratic jurisdictions, leading to disproportionately long lines, long waiting times, and voters leaving the polling sites without voting, likely deterring other voters who might have been planning on voting from coming out to the polls.99 It is estimated that 3 percent of voters in Ohio who went to the polls left without voting and did not return.100 This is also another instance where an extreme negative experience at the polls can lead to a disinclination to participate in the future. None but the most dedicated voters—and the voters who have the work and life flexibility to spend hours in a voting line—will participate in a system that presents so many frustrations and so much inequity.

Thus it is crucial that Democrats, for the sake of the turnout of their voters and for justice in democracy, demand that states identify formulas and create plans for allocation of voting machines that have the best chance of creating an equal playing field and effective voting process on Election (p.152) Day. Many states have no requirements at all regarding machine allocation, and in others those rules are extremely vague. Often the decision is left to the counties, and only some of them have any concrete, discernible formula for making sure there are enough machines, that they are distributed equitably, and allocated in such a way to ensure minimal wait times. In the states that do have laws, they are often not enforced.101 Not only does this likely diminish participation, but it may well be unconstitutional; there are machine-allocation disparities within states that could violate the equal protection clause of the Fourteenth Amendment.

By the same token, we need to be smarter about allocation of poll workers. In some places the parties play a direct role in the appointment of poll workers, but even where they do not, they should urge election administrators and legislators to take a different approach in this area. A dearth of poll workers is a perennial problem throughout the country. However, it is even worse in poorer communities. This is a problem because if there are too few poll workers operating a polling place, the likelihood of long waits to vote increases. As wait time increases, the probability that voters will show up at the polls and walk away without voting also goes up. Sometimes shortfalls in poll workers result in polling sites opening late—or, in some cases, not opening at all. This occurs all over the country every year. This failing must deter a great many voters from voting, a number that has yet to be assessed but must intuitively be high.

There are also troubling disparities in poll-worker allocation that make addressing this problem more crucial. The U.S. Election Assistance Commission (EAC) Election Day Survey found that jurisdictions with higher-income voters and more highly educated voters had more poll workers and fewer staffing problems than poorer and less-educated jurisdictions.102 Another EAC study found that “predominantly non-Hispanic, Black jurisdictions reported a greater percentage of polling places or precincts with inadequate number of poll workers. Predominantly non-Hispanic, Native American jurisdictions reported the second highest percentage of staffing problems.”103 This clearly violates the voter inclusion principle. It also makes it more likely that voters in these areas will be deterred from participating because of long lines. As a result, in the same way the parties—again, especially the Democrats—must ensure at the state level that there are plans for equitable distribution of machines and polling sites, they must also insist on the fair allocation of poll workers.

(p.153) It has long been evident to anyone who has done election work or been a poll worker that in most places there is a rush in the morning before people go to work, a smaller uptick during the lunch hour, and then another rush in the evening when voters are returning home from work. Through more study, we could chart these patterns more precisely and allocate poll workers accordingly. This would also be helpful to recruitment of poll workers in that they would not necessarily need to work sixteen-hour days as is currently the practice. In the meantime, split shifts for poll workers seems to be helpful in those jurisdictions that make use of them, such as Wisconsin.104

Counting the Votes

Counting provisional ballots cast in the wrong precinct but the correct jurisdiction is an obvious way to increase the number of votes counted. It is also likely to increase voters’ faith that their votes will be counted and thereby boost turnout. Thousands of voters cast provisional ballots only to find out their vote was not counted because they mistakenly went to the wrong place—yet they had made the effort to come out and vote and were eligible voters.105 Such negative experiences at the polling place can lead to disenchantment with the electoral process and cause voters to simply give up and stay home in the future.

Democrats have favored counting these ballots, while Republicans have fought vigorously against doing so. One possible reason for this is that conventional wisdom holds that Democrats are more likely to move more often, and therefore are more likely to experience mix-ups in where they are supposed to vote.106 There is some evidence that some demographic groups that trend Democratic are indeed more mobile, perhaps because they are more likely to be home renters rather than homeowners.107 Moreover, the EAC’s Election Day Study found that provisional ballots were cast at a much higher rate in “Section 203” jurisdictions in which there are sizable language minority populations—more likely Democrats. Urban and other high-density areas also had higher rates of provisional ballots.108 This is likely because precincts are smaller in geographic area in urban centers, thereby increasing the probability of a voter moving over a precinct line without becoming aware of it.109

(p.154) Given demographic realities and strategic political calculations, it is no wonder that Republicans would seek to reduce the number of provisional ballots counted. So far they have been largely successful, regardless of the law itself—for there is a very strong case to be made based both on the statutory language itself and the legislative history that the intent of the Help America Vote Act was to count provisional ballots that may have been cast in the wrong polling site but the correct county.110

In any case, not counting such ballots is politically unethical and a drain on democracy, for what is demonstrably evident is that states that exclude ballots cast in the wrong site disenfranchise legitimate voters. In 2004, twenty-eight states did not count out-of-precinct ballots, while seventeen states did.111 If all states had counted out-of-precinct ballots, it is estimated that nearly 300,000 more votes would have counted in the 2004 election.112 Overall, one-third of the nearly two million provisional ballots cast were not counted. The second most common reason election administrators reported for rejecting provisional ballots was that the ballots were cast in the wrong precinct. According to a government study, jurisdictions that accepted provisional ballots cast in the wrong precinct counted 71.7 percent of their ballots, while jurisdictions that did not counted only 52.5 percent of their ballots.

While surely it is true that a voter turning up at the wrong polling site and casting a ballot there causes administrative inconvenience, it is not so onerous that it should trump the right to vote. There is also no evidence to suggest that states that do count out-of-precinct ballots had more voters casting provisional ballots than other states. In other words, there was no evidence to suggest that citizens unconcernedly went to random polling places. Moreover, quite often voters will vote in the wrong place through no fault of their own, but rather have not been informed or have been misinformed of their proper polling place, or have had their polling place move without notice.113

The election reform that has been proposed in a number of federal bills—to require states to count votes for statewide offices if the ballot was cast in the wrong precinct or polling site but in the correct county—therefore makes sense from an ethical point of view and from a strategic perspective. Boiled down, it makes sense politically that Democrats should favor this reform; evidence suggests that more of their voters than Republican voters are impacted by the more-restrictive rules. But it is also (p.155) ethically obligatory for both parties to seek this reform—it will increase participation, and none of the arguments against it surmount the injustice of disenfranchisement of legal voters.

At the same time, both parties also have an incentive to do more to ensure that their voters know the proper place to vote. It is absurd that a sizable number of Americans may not vote, or not have their vote counted, because they do not know where to go to cast a ballot.

What the Parties Can Do

For most of our history, political operatives have bent the meaning and intent of election laws in order to suppress the votes of their political foes. They perceived this to be an effective means for winning elections. At times their tactics were illegal, and at others they just skirted the boundaries of the law; often they were, from a democratic standpoint, potentially legal but certainly damaging and against any rules of fairness. While both major parties and minor parties engaged in such endeavors until the mid-twentieth century, the expansion of voting rights and the movement of voters of color to the Democratic Party led the Republicans to be the major users of such tactics after the mid-1960s.

There is another way to use election laws to one side’s advantage that does not include excluding some Americans from exercising their right to vote: using these same election laws for the purpose of vote expansion. As has been described, there are many reasons why blocking certain voters from participating is wrong and harmful to our society and democracy. The other side of the coin is that it is healthy for democracy to employ tactics that encourage greater participation among a broader slice of society. There are many ways to accomplish this goal.

Politicians clearly have a dominant role to play in deciding to use these methods instead of suppressing votes. Yet it is also the American voter, regardless of his or her political persuasion, who must demand fair elections that allow for the participation of all eligible citizens. The politicians control the levers of power over laws and procedures—but it is the American people they must answer to as they set the rules of our democracy. We the people must demand better in the elections to come.

Notes:

(2.) “A Remarkable Statistic from Obama’s Victory (Voting and Income),” Daily Kos, November 8, 2008.

(3.) Michael Alvarez, Morgan Llewellyn, and Thad Hall, “How Hard Can It Be: Do Citizens Think It Is Difficult to Register to Vote?” Caltech/MIT Voting Technology Project Working Paper no. 48, July 2006, p. 13.

(5.) See Alan Gathright, “Motor Voter System a Work in Progress,” San Francisco Chronicle, October 18, 2003; “Minnesota: Some Voters Still Question Why They Weren’t Registered,” Grand Forks (ND) Herald, November 13, 2004; “Why Does DMV Have Trouble Properly Registering Voters?” San Joaquin (CA) News Service, November 7, 2004.

(6.) Letter to Christopher Coates, acting chief, and T. Christian Herren Jr., acting deputy chief, Voting Section, Civil Rights Division, U.S. Department of Justice, from Demos, December 4, 2008.

(7.) Annie Linskey, “Nearly 25 Percent of MVA Voter Registrations Fail,” Baltimore Sun, February 20, 2011.

(8.) “Policy Brief on Restrictions on Third Party Voter Registration Drives,” Brennan Center for Justice, September 2006.

(9.) Groups have included Project Vote, League of Women Voters, People for the American Way, Redeem the Vote, Focus on the Family, Priests for Life, and the Christian Coalition.

(10.) One liberal-leaning organization’s volunteers have allegedly filled out registration forms with false names, while conservative groups have been accused of jeopardizing the tax-exempt status of churches.

(11.) “Restricting Voter Registration Drives,” Project Vote, January 9, 2006, p. 7.

(12.) See, for example, Craig Leonard Brians and Bernard Grofman, “Election Day Registration’s Effect on Voter Turnout,” Social Science Quarterly 82, no. 1: 170–83, 2001; Mark J. Fenster, “The Impact of Allowing Day of Registration Voting on Turnout in U.S. Elections from 1960–1992,” American Politics Quarterly 22 (1994): 74–87; Benjamin Highton, “Easy Registration and Voter Turnout,” Journal of Politics 59, no. 2 (1997): 565–75; Stephen Knack, “Election-Day Registration,” American Politics Research 29, no. 1 (2001): 65–78; Michael Alvarez and Stephen Ansolabehere, “Expanding the Vote: Election Day Registration in California,” Demos, March 11, 2002; Michael Alvarez, Jonathan Nagler, and Catherine H. Wilson, “Making Voting Easier: Election Day Registration in New York,” Demos, April 20, 2004.

(15.) “Voters Win with Election Day Registration: A Snapshot of Election 2006,” Demos, January 31, 2007.

(p.180) (17.) Sam Roberts, “In Shift, 40% of Immigrants Move Directly to the Suburbs,” New York Times, October 17, 2007.

(18.) Kei Kawashima-Ginsberg, Amanda Nover, and Emily Hoban Kirby, “State Election Law Reform and Youth Voter Turnout,” Center for Information and Research on Civic Learning and Engagement, July 2009.

(19.) The Center for Information and Research on Civic Learning and Engagement, Youth Vote, “2010 Midterm Elections,” at http://www.civicyouth.org/quick-facts/youth-voting/.

(20.) See www.futuremajority.com, “2008 Youth Vote in Context.”

(21.) Michael Alvarez, Stephen Ansolabehere, and Catherine H. Wilson, “Election Day Registration in the United States: How One-Step Voting Can Change the Composition of the American Electorate,” Caltech/MIT Voting Technology Project, June 2002, p. 16.

(22.) “Universal Voter Registration: A Way to Empower and Engage All Californians,” New America Foundation, October 30, 2006, p. 8.

(23.) Michael McDonald, “Voter Pre-Registration Programs,” George Mason University, November 20, 2009.

(24.) “Policy Brief on Student Voting,” Brennan Center for Justice, March 8, 2006.

(28.) See “An Agenda for Election Reform,” at http://www.federalelectionreform.com/pdf/Federal%20Agenda.pdf.

(29.) See Tova Andrea Wang, A Citizen from Day One, Demos, July 2010.

(30.) Jeffrey S. Passel, “Growing Share of Immigrants Choosing Naturalization,” Pew Hispanic Center, March 28, 2007, p. 2.

(31.) Jackie Calmes, “Republican Forecast: Cloudy,” Wall Street Journal, September 5, 2007, p. A8.

(32.) Jane Junn and Kerry L. Haynie, eds., New Race Politics in America: Understanding Minority and Immigrant Politics (Cambridge: Cambridge University Press, March 2008), p. 22.

(33.) “Cardin, Schumer to Introduce Bill to Prohibit Voter Intimidation and Voter Suppression,” press release, December 13, 2011.

(34.) See, for example, John Wagner, “Md. Robo-Calls: Ehrlich Aide, Consultant Accused of Trying to Suppress Black Vote,” Washington Post, June 17, 2011.

(35.) Dennis F. Thompson, Just Elections: Creating a Fair Electoral Process in the United States (Chicago: University of Chicago Press, 2002), 59–60.

(36.) To Assure Pride and Confidence in the Electoral Process, National Commission on Federal Election Reform, August 2001, additional statement.

(37.) Raymond E. Wolfinger, Benjamin Highton, and Megan Mullin, “State Laws and the Turnout of the Registered” (paper prepared for presentation at the 2002 annual meeting of the Midwest Political Science Association, Chicago, April 25–28), p. 9.

(38.) Raymond E. Wolfinger, Benjamin Highton, and Megan Mullin, “Between Registering and Voting: How State Laws Affect the Turnout of Young Registrants” (paper prepared for presentation at the 2002 annual meeting of the American Political Science Association, Boston, August 29–September 1); “Key Election Laws Can Boost Youth Voter Turnout,” Center for Information and Research on Civic Learning and Engagement, June 21, 2004.

(40.) Paul Taylor and Norman Ornstein, “The Case for Free Air Time: A Broadcast Spectrum Fee for Campaign Finance Reform,” New America Foundation, Spectrum Series Issue Brief no. 5, June 2002.

(41.) See Tova Andrea Wang, “Increasing Voter Participation,” The Century Foundation, June 2006, p. 12.

(42.) Henry Milner, “Civic Literacy: How Informed Citizens Make Democracy Work,” Tufts University, 2002, p. 44.

(43.) See Paul Gronke and Eva Galanes-Rosenbaum, “Getting Out the Early Vote: Lessons for Progressives” (report prepared for the Progressive Targeting Conference, Center for American Progress, August 31, 2005).

(44.) Robert Stein, Chris Owens, and Jan Leighley, “Electoral Reform, Party Mobilization and Voter Turnout” (paper presented at the annual meeting of the American Political Science Association, Marriott Wardman Park, Omni Shoreham, Washington Hilton, Washington, DC, September 1, 2003), p. 19.

(45.) See Martin Sieff, “Early Voting Revolution Transforms U.S. Campaign Strategies,” United Press International, October 31, 2008; Stephen Ohlemacher, “Democrats Dominate Voting in Early States,” Associated Press, October 29, 2008; Dan Balz, “Obama’s Early Vote Push,” Washington Post, October 30, 2008.

(46.) Christopher D. Kilpatrick, “Early Voting a Big Winner; Nearly 2 in 3 Votes Were Cast before Tuesday, Making Election Day Easy for Precincts in North Carolina,” Charlotte Observer, November 5, 2008.

(47.) Robert Stein, e-mail interview with author, July 27, 2007; Stein, Owens, and Leighley, “Electoral Reform, Party Mobilization and Voter Turnout.”

(48.) John P. Katosh and Michael Traugott, “Costs and Values in the Calculus of Voting,” American Journal of Political Science 26, no. 2 (May 1982): 371; Wolfinger, Highton, and Mullin, “State Laws and the Turnout of the Registered.”

(49.) See Paul Gronke, “Early Voting Reforms and American Elections” (paper presented at the annual meeting of the American Political Science Association, Chicago, September 2–5, 2004).

(50.) For an extended discussion of these studies see John C. Fortier, Absentee and Early Voting: Trends, Promises, and Perils (Washington, DC: AEI Press, 2006); see also the many articles by Paul Gronke at http://earlyvoting.net/resources.html.

(51.) J. Eric Oliver, “The Effects of Eligibility Restrictions and Party Activity on Absentee Voting and Overall Turnout,” American Journal of Political Science 40, no. 2 (May 1996): 498–513.

(52.) Tova Andrea Wang and Job Serebrov, “Voting Fraud and Voter Intimidation: Report to the U.S. Election System on Preliminary Research and Recommendations,” July 2006, p. 7.

(53.) See Balancing Access and Integrity: The Report of The Century Foundation Working Group on State Implementation of Election Reform, The Century Foundation, 2005; To Assure Pride and Confidence in the Electoral Process: Task Force Reports to Accompany the Report of the National Commission on Election Reform, Miller Center for Public Affairs and The Century Foundation, August 2001; Fortier, Absentee and Early Voting; John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy (New York: Encounter Books, 2004); “Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform,” September 2005, Center for Democracy and Election Management, American University.

(54.) Michael Alvarez, Thad Hall, and Betsy Sinclair, “Whose Absentee Votes Are Counted: The Variety and Use of Absentee Ballots in California,” CalTech/MIT Voting Technology Project, July 2005. However, there is anecdotal evidence that some language minorities prefer the (p.182) option of being able to complete the ballot in their homes, where they can more easily get the assistance of their choosing.

(56.) “Getting It Straight for 2008: What We Know about Vote by Mail Elections and How to Conduct Them Well,” Common Cause, January 2008, p. 2.

(57.) Although they are commonly referred to as “overseas voters,” this includes any out-of-country voter.

(58.) “Uniformed and Overseas Citizens Absentee Voters Act: Survey Report Findings,” U.S. Election Assistance Commission, September 2007, p. 4.

(59.) Overseas Vote Foundation, “Moving Forward: 2010 OVF Post Election UOCAVA Survey Report and Analysis, February 2011,” p. 2.

(60.) Ibid., 11.

(63.) Brian Whitmore, “Both Parties Reaching for Votes from Abroad,” Boston Globe, May 3, 2004. There is little hard data on the partisanship of overseas voters, although conventional wisdom is that military voters are certainly disproportionately Republicans.

(64.) Marina Mecl, Overseas Vote Foundation, phone interview with author, October 1, 2007.

(65.) Grant Gross, “NIST Finds Security Problems with Overseas E-Voting,” Network World, December 24, 2008.

(66.) “Overseas Vote Foundation 2006 Post Election Survey Results,” Overseas Vote Foundation, February 8, 2007, p. 18.

(67.) “Yahoo!, the Huffington Post and Slate to Host First-Ever Online-Only Presidential Debates, Moderated by Charlie Rose,” press release, April 23, 2007, Yahoo! Press room, at http://yahoo.client.shareholder.com/press/ReleaseDetail.cfm?ReleaseID=239007.

(68.) Adam Berinsky, “The Perverse Consequences of Electoral Reform in the United States,” American Politics Research 33, no. 4 (July 2005): 471–491.

(69.) Paul Gronke, Reed College, e-mail interview with author, November 1, 2007.

(70.) It should be noted that Republicans Abroad is not directly affiliated with the Republican National Committee but rather is a “527 organization.”

(71.) R. Michael Alvarez, Delia Bailey, and Jonathan Katz, “The Effect of Voter Identification Laws on Turnout,” Caltech/MIT Voting Technology Project, January 2008.

(72.) “Citizens without Proof,” Brennan Center for Justice, November 2006; Matt Barreto, Stephen A. Nuño, and Gabriel R. Sanchez, “Voter ID Requirements and the Disenfranchisement of Latino, Black and Asian Voters” (paper presented at the annual meeting of the American Political Science Association, September 1, 2007).

(73.) See, just for example, Lorraine C. Minnite, “The Politics of Voter Fraud,” Project Vote, March 13, 2007; Justin Levitt, “The Truth about Voter Fraud,” Brennan Center for Justice, 2007; testimony submitted by Lorraine C. Minnite, U.S. House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Oversight Hearing on Voter Suppression, February 26, 2008; testimony delivered at the Senate Rules and Administration Committee Hearing, In Person Voter Fraud: Myth and Trigger for Disenfranchisement? March 12, 2008.

(74.) Justin Levitt, “Analysis of Alleged Fraud in Briefs Supporting Crawford Respondents,” Brennan Center for Justice, December 31, 2007.

(77.) H.R. 103: Caging Prohibition Act of 2009, http://www.govtrack.us/congress/bill.xpd?bill=h111-103.

(78.) See Mark Hugo Lopez, “Latinos and the 2010 Elections,” Pew Hispanic Center, October 5, 2010.

(79.) See, for example, Michael O’Brien, “GOP Messaging Lousy on Hispanics,” The Hill, May 12, 2011; Jeb Bush, “Conservative Movement Must Commit to a Long-Term Outreach Strategy,” Miami Herald, January 9, 2011.

(81.) Stephen Chan, “AALDEF: The Asian American Vote,” Asians in America Magazine, October 3, 2008.

(82.) David Melmer, “American Indian Voters Face Hostility in South Dakota,” Indian Country Today, September 26, 2005; Paul McClain, Can We All Get Along? Racial and Ethnic Minorities in American Politics (Boulder, CO: Westview Press, 2001), 79.

(83.) Laura Flanders, “Bottom Up Power,” The Nation, April 6, 2007.

(84.) See Jack Citrin and Benjamin Highton, “How Race, Ethnicity and Immigration Shape the California Electorate,” Public Policy Institute of California, 2002; Editors, “Educate, Then Get Native American Voters to the Polls,” Indian Country Today, August 13, 2001; Daniel Kraker, “The Tribal Vote,” High Country News, August 25, 2004.

(85.) Jocelyn Friedrichs Benson, “Su Voto Es Su Voz! Incorporating Voters of Limited English Proficiency into American Democracy,” Boston College Law Review 48, no. 2 (March 2007): 251–329, at 263.

(86.) Michael Jones-Correa and Israel Waismel-Manor, “Getting into the Voting Rights Act: The Availability of Translated Registration Materials and Its Impact on Minority Voter Registration and Participation” (paper presented at the annual meeting of the American Political Science Association, August 30–September 2, 2007).

(87.) “Translating the Vote: The Impact of the Language Minority Provision of the Voting Rights Act,” Electionline.org, October 2006, p. 10; “Voting in 2010: Ten Swing States,” Demos and Common Cause, September 2010.

(92.) “Felony Disenfranchisement Laws in the United States,” Sentencing Project, April 2007.

(94.) Erika Wood and Neema Trivedi, “The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls,” Clearinghouse Review Journal of Poverty L citing Marc Mauer, Race to Incarcerate (New York: New Press, 2006), 32, citing Marc Mauer, Race to Incarcerate (New York: New Press, 2006), 32; U.S. Census Bureau: State and County QuickFacts. Data derived from Population Estimates, American Community Survey, Census of Population and Housing, Small Area Income and Poverty Estimates, State and County Housing Unit Estimates, County Business Patterns, Nonemployer Statistics, Economic Census, Survey of Business Owners, Building Permits, Consolidated Federal Funds Report. Last Revised October 13, 2011, http://quickfacts.census.gov/qfd/states/00000.html.

(97.) More and more states have been coming to this realization and, sometimes even putting partisan advantage to the side, have reformed their laws. Since 1997, sixteen states have loosened (p.184) restrictions on voting rights for ex-felons. See Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006), 248–50.

(98.) See Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, Winter/Spring 2005.

(99.) See Benjamin Highton, “Long Lines, Voting Machine Availability, and Turnout: The Case of Franklin County, Ohio, in the 2004 Presidential Election,” PS Online, January 2006; Walter R. Mebane Jr., “Voting Machine Allocation in Franklin County, Ohio, 2004: Response to U.S. Department of Justice Letter of June 29, 2005,” July 7, 2005; Daniel Tokaji, “Race and Ohio’s Machine Shortage,” Equal Vote blog, July 24, 2007; Theodore Allen and Mikhail Bernshteyn, “Mitigating Voter Waiting Times,” Chance, vol. 19, no. 4, 2006; “Preserving Democracy: What Went Wrong in Ohio,” Status Report of the House Judiciary Committee Democratic Staff, January 5, 2005; “Democracy at Risk: The 2004 Election in Ohio,” Democratic National Committee, 2005; Michael Powell and Peter Slevin, “Several Factors Contributed to ‘Lost Votes’ in Ohio,” Washington Post, December 15, 2004; James Dao, “Voting Problems in Ohio Spur Call for Overhaul,” New York Times, December 24, 2004.

(100.) “Democracy at Risk: The 2004 Election in Ohio,” Democratic National Committee, 2005.

(101.) For a full discussion of this see “Voting in 2006: Have We Solved the Problems of 2004?” The Century Foundation, Common Cause, and the Leadership Conference for Civil Rights, October 2006.

(103.) “Report to the U.S. Election Assistance Commission on Best Practices to Improve Provisional Voting,” submitted by the Eagleton Institute and the Moritz College of Law, Ohio State University, June 28, 2006, p. 16.

(104.) Tova Andrea Wang, Sam Oliker-Friedlander, Melissa Riess, and Kristen Oshyn, “Voting in 2008: Ten Swing States,” Common Cause and The Century Foundation, September 16, 2008, p. 22.

(105.) Wendy R. Weiser, “Are HAVA’s Provisional Ballots Working?” Brennan Center for Justice, March 29, 2006.

(106.) Associated Press, “Ohio Court: Provisional Ballots outside Voter’s Precinct Not Valid,” October 24, 2004.

(107.) See Walter R. Mebane Jr., “Inferences from the DNC Provisional Vote Ballot Survey,” April 27, 2005. About 60 percent of the provisional ballots cast in Cuyahoga County, Ohio, were cast by those who either were voting in Ohio for the first time or who had previously voted in the state but since moved: “15% of those who said they had previously voted in Ohio said they had since moved. Among those voters, 11.4% cast a provisional ballot, compared to just 1.7% of those who said they had not moved since the last time they voted.” However, in the case of this county, Mebane found that these votes were evenly split between Republicans and Democrats. He also found that older voters were much less likely than younger voters to cast a provisional ballot.

(108.) Leonard Shambon and Keith Abouchar, “Trapped by Precincts? The Help America Vote Act’s Provisional Ballots and the Problem of Precincts,” New York University Journal of Legislation and Public Policy 10, no. 1 (2006–7): 176.

(109.) Leonard Shambon, e-mail interview with author, August 15, 2007.

(p.185) (112.) “Report to the U.S. Election Assistance Commission on Best Practices to Improve Provisional Voting,” Eagleton Institute and Moritz College of Law, 14.