Category: Election Law
Georgia gained national attention in the 2020 election when the predominantly red state broke its 24-year streak of voting for Republican candidates in U.S. Presidential Elections. It went on to make history in early 2021 when the electorate flipped the U.S. Senate and elected Rev. Raphael Warnock and Jon Ossoff to the U.S. Senate, respectively the first Black and Jewish Senators from Georgia.
A large part of this victory both in the White House and the Senate is attributed to Stacey Abrams, the Democrat gubernatorial candidate in Georgia’s 2018 election. Abrams’ gubernatorial campaign was unsuccessful, in large part because of voter suppression, but rather than wallow in defeat and fade into the background, Abrams became a loud, powerful voice—speaking against voter suppression and registering hundreds of thousands of voters in Georgia.
And now Republicans—in Georgia and across the nation—formally responded, pushing a huge new wave of voter suppression tactics in the name of “election integrity.”
Among other legislation, Republicans in the Georgia Senate have proposed S.B. 71, which would change the definition of absentee voter entirely. For the past 15 years or so, Georgia has been a “no excuse needed” absentee voting state, but this bill would require people who wish to vote absentee to
- Be physically absent from their precinct during the election;
- Be able to perform any of the “official acts or duties” connected to the election;
- Be absent because of physical disability or because you’re required to give constant care to someone who is disabled;
- Be observing a religious holiday;
- Be required to remain on duty for the “protection of the health, life, or safety of the public”; or
- Be at least 65-years-old.
These extremely limited exceptions would put even more emphasis on the luxury and privilege of time. Many people cannot take an hour (or more) out of their daily schedules—balancing child care, housing matters, and work among the other minutiae of modern life—to go to the polls. The oft-used argument to that is “well, there are plenty of precincts where you can get in and out in 10 minutes.” And while that may be accurate, the problem is inherent in the argument itself: that it isn’t true of every precinct; and issues with fewer voting machines, voter purges, and, therefore, long waits tend to disproportionately affect liberal-voting communities in Republican controlled states.
In Georgia, it seems like the Republicans are worried they are seeing the writing on the wall after the voter turnout in the 2020 Presidential and Senatorial elections. Though not an overwhelming victory in any of the elections, the Democrats mustered enough of a majority to win, and with continued growth in urban areas and a push for even more change in the future, it’s incredibly likely that Georgia will continue to vote blue in the future. The state has been trending that way for years, and the 2020 election could well portend what is in store for conservatives in Georgia.
Other Voter Suppression Legislation
Throughout the nation, state legislatures have begun putting forth bills that would restrict voting access—in fact, over four times more legislation that would restrict voting has been proposed than was proposed this time last year.
Georgia is not alone in limiting absentee voting. Nine other states have proposed bills that would either eliminate “no excuse” voting or crack down on the requirements for absentee voting where “excuse” voting is already in place. Other bills make it more difficult to obtain ballots in the first place by changing the laws concerning permanent early voter lists. Some measures go so far as to eliminate permanent early voter lists (which would force people now on those lists to take more steps to vote every year; Arizona S.B. 1678, Hawaii H.B. 1262, and New Jersey S.B. 3391) while others would reduce how long someone remains on the permanent absentee voter list (Florida S.B. 90).
Other proposals concern stricter voter ID requirements—a long contentious aspect of voter suppression. States that do not currently require photo IDs to vote are considering requiring them in the future, other states are trying to restrict what kinds of photo IDs can be used (New Hampshire H.B. 429, Mississippi H.B. 543), and some would force voters to include a photocopy of their ID with their absentee ballots (Texas S.B. 1). Requiring voter ID (and particularly certain types of ID) is problematic because there are not enough opportunities for people to obtain IDs—lunch hour spent at the DMV, anyone?—and cost barriers make obtaining an ID unfeasible for many disenfranchised populations. This also ties in with the legislative efforts to reduce voter registration opportunities, whether that be election day registration or limiting or reducing automatic voter registration.
Lastly, some state legislatures have decided that amplifying voter purge practices is the way forward. The practice is already flawed (and usually ineffective and unnecessary), but the proposed legislation would expand the scale of extant purges or adopt procedures that would likely result in improper purges. Texas legislators have sent a bill to the governor that would add new criminal penalties to voting processes, enhance partisan poll-watching, and ban measures previously enacted to increase access to voting. New Hampshire has gone so far as to propose a bill that would violate the National Voter Registration Act.
Staying on our toes
Although some legislation has been proposed to expand access to voting, the backlash and restrictions are what anyone concerned with protecting the right to vote should be worried about. The proposed restrictions on voting would remove people from voter rolls, make it harder to vote in person by heightening ID requirements, erect further barriers to obtaining IDs, severely limit who can vote absentee, and add arbitrary hurdles to voting by mail generally. The individual right to vote is integral to securing and maintaining American democracy, and efforts to build barriers that would make it nearly impossible for American citizens to vote are plainly wrong. Preventing voter fraud is important, but using rhetoric about “election integrity” to justify disenfranchising certain populations is classist, racist, and morally repugnant, and that is without touching the constitutional and legal issues surrounding the matter. Already, the Democrat-controlled U.S. Congress is taking steps to prevent the voter suppression promulgated by this wave of state legislation. What Republicans who are worried about votes in the hands of marginalized communities do not realize is that it isn’t a matter of barriers and restrictive legislation, it’s a matter of time. Georgia was one of the first dominoes to fall, but it won’t be the last, especially with the federal government ready and willing to strengthen voting rights and access.
For a number of reasons, Jared Golden (D-ME) made national news when he was elected to represent Maine’s second congressional district (CD-2). First, CD-2 is roughly ten points more conservative than the nation as a whole and voted for former President Trump twice. Second, his victory meant the Democratic party would occupy all of New England’s House seats. Third, his election was the first time that CD-2 failed to elect an incumbent running for re-election in over 100 years. Finally, through the mechanics of Maine’s Rank-Choice Voting (RCV) system, Golden won despite initially having 2000 votes fewer than incumbent Bruce Poliquin. Poliquin filed a slew of lawsuits challenging the constitutionality of RCV, but Golden was ultimately seated.
As more jurisdictions begin to consider implementing RCV, both state and federal courts will have to determine the legal contours of RCV. This blog post will briefly describe the history and mechanics of RCV before surveying the serious challenges RCV has faced and will continue to face at both the state and federal level.
What is RCV and How Did it End Up in Maine?
RCV is a voting system that allows voters to pick a preferred order of candidates for any given position. If one candidate is the first choice of more than 50% of the voters, they are the winner of the election. However, if no candidate successfully secures 50% of first-choice ballots, the candidate with the fewest votes is eliminated. Officials then conduct a new round of counting, redistributing votes for the eliminated candidate(s) based on each effected ballot’s second choice. The process repeats itself until one candidate has at least 50% of the vote.
Proponents of RCV claim that it improves voter turnout, minimizes negative campaigning, and increases faith in elections. It also prevents candidates from winning elections who are actively disliked by the majority of voters. With states often being the laboratories for legislative policy, Maine was an obvious choice for targeting passage. Maine has a long history of electing independent politicians or voting heavily for third party candidates. Between Independent Jim Longley’s victory in 1974 with only 39.7% of the vote and the enactment of RCV in 2016, only two governors have been elected with a majority of the vote.
Although Maine’s affinity for independent-minded politicians often results in politically moderate governors, Paul Lepage, a Tea Party favorite and self-proclaimed “Trump before Donald Trump became popular,” was elected in 2012 with 37% of the vote. With shocking disapproval numbers for the new governor, advocates pitched RCV as a way to preserve Maine’s unique history of voting for third-party candidates while also preventing unpopular figures from claiming the governorship. In 2016, voters passed an initiative implementing RCV for all elections.
Source of Constitutionality Concerns
In the five years since Maine voters passed RCV, opponents have levied a number of legal attacks against RCV. These attacks have typically followed two main theories: that the system violates the federal ‘one person one vote’ doctrine, or that it runs afoul of state constitutional language that implies the winner of an election need not have a majority of the vote.
One Person One Vote and Burdens on the Right to Vote
Article 1 Section 4 of the Constitution grants states broad discretion to choose “[t]he Times, Places, and Manner of holding Elections for [federal] Senators and Representatives”. Having a novel method of electing officials is not per se unconstitutional, so Poliquin’s lawsuit claimed that RCV violates the federal right to vote. He argued that voters whose initial preferences are eliminated get to vote more than once – once in the initial round, and again in each subsequent round where their second, third, or even fourth preference is counted. In Baber v. Dunlap (D. Me. 2018), Judge Lance E. Walker was not sympathetic. Judge Walker found that those who voted for Poliquin as their first choice had their votes counted just as much as those who voted for disqualified candidates and whose votes were distributed to second choices. Ultimately, he found that the process did not dilute or make irrelevant the votes listing Poliquin or Golden as a first choice.
Poliquin also argued that the Constitution requires the winners of federal offices to be determined by the plurality of the votes. Walker, a Trump appointee, found that Article I of the Constitution does not require states to declare winners based on the winner of the plurality vote: “There is no textual support for this argument and a great deal of historical support to undermine it.” For example, Judge Walker noted that several states require majority votes for elections through the use of run offs, yet these schemes have never been closely scrutinized under Article I. With respect to the plain text, Walker was equally unequivocal in his conclusion: “The framers knew how to distinguish between plurality and majority voting, and did so in other contexts in the Constitution, which leads to the sensible conclusion that they purposefully did not do so in Article I, section 2.”
Other jurisdictions have agreed RCV does not violate the Constitution. The 9th Circuit, ruling on San Francisco’s RCV scheme, stated “the City’s restricted [RCV] system is not analogous to limitations on voting in successive elections, because in San Francisco’s system, no voter is denied an opportunity to cast a ballot at the same time and with the same degree of choice among candidates available to other voters.” Thus, the weight of legal authority indicates that the Constitution does not prohibit states from implementing RCV.
Upon Maine’s enactment of RCV, the Maine senate asked the Maine Supreme Court for an advisory opinion on RCV’s constitutionality. Specifically, the Senate President was concerned about the state constitution’s language requiring the winners of state positions to be determined by a “plurality of all the votes.” In their opinion, the Court recognized that although citizen-enacted laws enjoy a “heavy presumption” of constitutionality, “the language of the Maine Constitution . . . is clear.” The Court found clarity particularly in light of the history of the Constitution’s text – which was changed to the current language after a series of run-off elections caused confusion, anger, and a violent confrontation on the steps of the state house in 1879. Out of respect for this history, the Justices believed they had no choice but to avoid any construction that failed to seat any state office candidate winning the plurality of the vote. Thus, even though RCV can be used for federal elections and all primaries in Maine, it may not be utilized in the general elections for state positions.
Following the Maine Supreme Court’s advisory opinion, the Maine legislature has tried to amend the state constitution to allow for RCV for state general election. Even if such efforts are successful in Maine, RCV faces challenges elsewhere. The Supreme Court of Alaska, the only other state with RCV, is heard a case on RCV’s constitutionality in January 2022. Meanwhile, voters in Massachusetts turned down RCV at the ballot box. Thus, RCV faces seriously political and legal hurdles to gaining widespread implementation.
A More Perfect Election: Which COVID Election Reforms Massachusetts Should Keep And What Needs To Be Fixed
While the COVID-19 pandemic will no doubt be remembered as one of our nation’s most tragic events there may be at least one bright spot that emerges from an otherwise catastrophic era: a ground up rethinking of elections systems. It’s was not ideal timing; many voters believed that the 2020 general election was the most important in a generation and also feared that mass voting system reform would wreak havoc. Nevertheless, the COVID-19 election experience offers the opportunity to create needed and lasting improvements to our electoral system.
The Massachusetts Legislature prepared for the pandemic election by passing “An Act Relative to Voting Options in Response to Covid-19” a few months before the September 1, 2020 primary. The Act provided for early voting before the primary and greatly expanded access to mail-in voting for both the primary and general election. Most of the Act’s provisions expired on December 31, 2020, but this may be for the best; the Legislature should develop a more permanent election reform bill during the new legislative session. Below are provisions lawmakers should keep—and scrap.
KEEP: No-excuse vote-by-mail option for both primary and general elections.
Current Massachusetts law allows no-excuse mail-in voting only for biennial general elections. In other elections a voter must be either absent from their municipality or physically disabled to qualify for mail-in voting. The recent act allowing mail-in voting for the primary should become the norm. Of the estimated 18.9 million registered voters who did not cast a ballot in 2016, 19.3% percent cited reasons (see table 4) such as transportation problems, busy schedules, inconvenient polling places—and another 3% simply forgot. When Colorado implemented all-mail voting in 2014, election turnout increased 9.4% overall. The biggest gains were with traditionally low turnout groups: younger voters (16.6% increase), blue-collar workers (10%), and minority voters (13.2% for Black voters, 10% for Latinx voters, and 11.2% for Asian voters). Utah and other states increasing vote-by-mail saw similar increases in turnout. This year, 1,705,388 voters participated in the Massachusetts primary; the highest raw vote count ever for a primary. Granted, there was great voter enthusiasm due to contentious US Senate race between Senator Ed Markey and Congressman Joe Kennedy, but a lot of credit should go to the COVID-19 election reforms since about half of the ballots were sent by mail. In a state where non-Presidential Primary elections have peaked around 26% in the last 30 years, there’s no doubt that mail-in balloting is the way to keep this number rising in future.
SCRAP: Mail-in Ballot Applications.
Currently, Massachusetts requires voters to fill out and return an application to receive their mail-in ballots. Legislators should scrap this unnecessary and costly hurdle and join 10 other states that mail ballots to all registered voters.
First, the application requirement costs the Commonwealth a lot of money. Undoubtedly, the state made the right move by mailing applications to every voter—but paid postage for at least 4.6 million pieces of mail one-way, and millions more that were returned. There is also the cost of labor to prepare the mailings and process the returned applications. Secretary of the Commonwealth William Galvin estimated that each of the two mailings cost around $5 million.
Secondly, mail-in ballot applications are a superfluous hurdle to casting a vote in a primarily mail-in election regime. To a voting populace that already has difficulty meeting registration deadlines or remembering election day, an application requirement presents yet another step to forget and a deadline that can easily be missed. Mailing ballots directly to voters eliminates this unnecessary barrier to entry and ensures that every voter receives a ballot in a timely manner, no hoop-jumping required.
KEEP: Ballot Drop Boxes.
The July bill added the option of returning mail-in ballots “via a secured municipal drop box.” This was a huge win for both busy voters who are skeptical of the USPS and for the Commonwealth, which saves money on the return postage. This is a long-term change reflected in the written statutes and should be a positive change in all future elections!
SCRAP: Election Day Deadline for Receiving Ballots.
Current Massachusetts law only allows counting late ballots if they come from overseas. In the COVID Act, the legislature adopted a 3-day extension for ballots postmarked by election day for the November general election, but not the primary election. This distinction lead to an unsuccessful legal challenge by a candidate in the Democratic race for the Fourth Congressional District. 8,000 ballots were later rejected for arriving past the deadline. Given the recent problems with the USPS, the election day receipt deadline simply won’t cut it.
The 3-day window was a good starting point, but it is falls woefully short of the laws in other states. In 2020, 24 states have receipt deadlines of at least 5 days, and of those, 14 states allow ballots to be counted even beyond 5 days. It’s difficult to pinpoint the appropriate amount of time needed here in the Bay State without more data, but there’s no reason that progressive Massachusetts should have anything shorter than a 5-day late ballot allowance.
BONUS: Add extended cure period for defective mail-in ballots.
It’s unavoidable that a certain amount of ballots will be returned unsigned or in the wrong envelope. In September, at least 3,000 ballots were discarded because of a defect. Although Massachusetts is one of 18 states with a “cure provision” that allows voters to fix the defect with their mail-in ballot, there is room for improvement. In 2020, when the clerk received a defective mail-in ballot, the official must mail the voter a form explaining that their ballot was rejected and a substitute ballot, but only if “there is clearly sufficient time for the voter to return another ballot.” (950 C.M.R. § 47.10(5)(b)).
Massachusetts should make two important changes to ensure every voter has their ballot counted. First, change the methods of notification. Massachusetts should copy Hawaii and Rhode Island and allow election officers to notify voters of a defective ballot by first-class mail, telephone and email. Second, allow voters to cure their ballot past election day. Other states offer anywhere from 2 to 14 days for voters to fix any defects in their ballots. These measures should help to close that final gap between ballots cast and votes counted.
There are positive signs that Massachusetts could be moving towards a primarily mail-in election future. Hopefully, the legislature will mitigate the pitfalls from this year’s attempt and incorporate successful policies used by other states to ensure that all voters have a meaningful opportunity to participate.