democracy is a work in progress

Voting Rights, Gerrymandering, Voter Suppression, and more

Problem Brief

Scope2020-06-24T21:41:56-05:00

Problem Scope

Gerrymandering and Other Acts of Partisan Manipulation in the Two-Party System

Election competitiveness has come under increased scrutiny in the last decade. As one recent report has stated, “Election competitiveness across the country is at a 40 year low, with only five percent of Americans living in districts with elections won by five percent or less.”  Nearly 40% of Americans live in areas with uncontested elections. In general, an uncontested election is one in which there was only one candidate in the race or the winner had a greater than 10% margin of victory. As competition for political office has diminished, more extreme partisan views have held sway as elected officials have less incentive to balance competing constituent needs to achieve compromise solutions.

In their 2017 report, Why Competition in the Politics Industry is Failing America, former CEO and policy adviser Katherine M. Gehl and business expert Michael E. Porter contend, “The problem is not Democrats or Republicans…. The problem is not the existence of parties, per se, or that there are two major parties. The real problem is the nature of political competition that the current duopoly has created, their failure to deliver solutions that work, and the artificial barriers that are preventing new competition that might better serve the public interest.”

According to Gehl and Porter, despite the good intentions of individual politicians, the two parties have rigged the system through gerrymandered districts that establish virtually unbeatable odds for one party or another, and caucuses, closed primaries, and other ballot access rules that further reduce the power of independent voters. In recent polls, more Americans identified as independents (40%) than as either Republican (28%) or Democrat (30%), yet both parties have continued to support partisan rules that negate the independent vote.

The impact of this systemic flaw may be best reflected in a report from the Pew Research Center on why registered voters didn’t vote in the 2016 election. When asked, 40% of registered voters cited either a “dislike of the candidates or campaign issues” or they were not interested and felt their vote wouldn’t matter. In the context of heavily gerrymandered districts and two-party duopoly, this demoralized sense of civic responsibility makes complete sense.

Gerrymandered Districts

Because redistricting is done by the party in power, gerrymandering is used to create more opportunities for the controlling party to retain and expand its hold on political office. “Safe seats” are a common product – these are elected positions that are gerrymandered to limit or negate competition for the office, meaning that the winner of the party primary in a gerrymandered district is virtually guaranteed to win the general election. With advanced data analytics, state election commissions responsible for drawing district lines have created districts that are more crooked and purposeful in shape than one would expect from a more neutrally-drawn electoral district.

In 2014, the Washington Post used historical data relating to Maryland’s third congressional district to illustrate how extreme gerrymandering had become.

Maryland's Gerrymandered Third District

This situation often discourages candidates from the minority party from even running. In the 2018 election cycle alone, 2,017 state legislative elections (33%) did not have a competitor from both major political parties. In 2016, according to Gehl and Porter, fewer than 10% of U.S. House races and only about 28% of Senate general election races were competitive.  In other words, in 90% of House races and 72% of Senate races, the winner was decided in the primary.

Over the last five election years, from 2010 – 2018, an average of 38% of state legislative races had no competition.

Percentage of Elections with No Major Party Competition (2010-2018

According to Walter Olson, a senior fellow at the Cato Institute, the Supreme Court has long held that severe partisan gerrymandering is a violation of the equal protection clause in the 14th Amendment but it has so far not been willing to suggest a solution.

Caucuses and Primaries

Caucuses and primaries are used by the two major political parties to nominate candidates for presidential, state, and local elections. Though the rules governing them can change by party and from state-to-state, in general, they tend to exclude independent voters and less enthusiastic party members. Open Primaries estimates that 26.3 million independent voters were not allowed to vote in the 2016 presidential primaries.

Caucuses are the most exclusionary. Third Way cites the example of the Democratic Party process in Washington state in 2016. Washington Democrats held both a caucus and a primary. Results of the caucus were binding, which meant that all of the state’s voting delegates were awarded to the caucus winner, Bernie Sanders, at the Democratic National Convention that summer. Only 230,000 people voted in the caucus, with Sanders receiving 72% of the votes, while more than 800,000 voted in the non-binding Democratic primary, which gave Hillary Clinton a 52% majority of the vote.

Primaries are typically described as closed and semi-closed, which are the most exclusionary, or open and semi-open, which, as they sound, are more inclusive. In a closed primary, only registered party members may vote; a semi-closed primary allows unaffiliated voters to participate in the party primary of their choice.

For the 2020 election, Ballotpedia has identified 28 states with closed primaries — 17 in which both party primaries are closed, 6 in which only the Republican primary is closed, and 5 in which the Democratic primary is closed. This data is as of November 20, 2019 and is subject to change.

In those states with closed primaries, the growing group of political independents have no say in who appears on the general election ballot in those states. Rules governing semi-closed primaries vary from state to state, with some treating a primary vote as a form of party registration regardless of the voter’s intent regarding the party.

Sore Loser Laws

In 44 states, a candidate who loses a party primary cannot appear on the general election ballot. These states either have a law explicitly prohibiting a primary election loser to be included, or they instituted rules, such as early registration deadlines, that have the same effect.

Gehl and Porter cite the example of Mike Castle, who was a nine-term US Representative from Delaware and former Governor of the state. In 2009, he was heavily favored to win the Republican primary for the US Senate seat vacated by Joe Biden. Yet, in a primary that attracted only 30,000 voters, he was defeated by Tea Party candidate Christine O’Donnell. Despite his overwhelming popularity, state law prohibited him from appearing on the general election ballot as an independent candidate. (O’Donnell went on to lose the general election to the Democratic candidate, Chris Coons.)

Voter Suppression

Passage of the Civil Rights Act in 1964 and the Voting Rights Act (VRA) in 1965 brought to a close a period of overt racial discrimination and voter suppression. It also created a seismic shift in the alignment of the two major parties, as the so-called Dixiecrats, Southern Democrats who supported the suppressive Jim Crow laws that were eliminated by the VRA and who opposed any civil rights reforms, left the party and joined with conservative Republicans around the ideas of small government and states’ rights. This alliance formed the basis of the movement that carried Ronald Reagan to the presidency in 1980 and inaugurated a decades-long shift in American legislative and judicial priorities.

Today, a new combination of restrictive standards and requirements keeps voters from exercising their right to vote. Since 2010, the Brennan Center for Justice reports that politicians in 25 states have erected or tried to erect legislative and administrative barriers to citizens seeking to exercise their right to vote. Republicans controlled the legislative process in 21 of those states, including two in which the Republican legislature overrode the veto of a Democratic governor. Democrats in three states voted in support of new barriers, and in one state, the barrier was supported via a ballot initiative. These barriers have included strict voter ID laws, laws that make it harder to register and remain registered, voter purges, polling place closures, and a shortage of functioning voting machines and other equipment used on election day.

In 2013, after almost 50 years, the Supreme Court decision in Shelby County v. Holder essentially gutted the VRA and eliminated federal oversight of state and local jurisdictions with a prior history of discriminatory behavior. The Court’s ruling opened the door to a new wave of voting changes that evidence suggests mostly targets lower income voters, particularly in the African American and Hispanic communities. The changes were often made by design but sometimes by a failure to recognize the racism and classism inherent in seemingly benign decisions.

Voting Restrictions Since 2010

Proponents of these new legal barriers to voting have justified the measures by citing concerns of voter fraud. While preventing fraud and ensuring the integrity of the voting process is a common goal, there is little statistical evidence of fraud to support the kind of restrictive and sweeping measures used in recent years.

The point is not to diminish concerns over voter fraud, but to clarify that the extreme measures implemented here to defend against fraud may be an overreaction at best, and intentional voter suppression at worst. The following sections illustrate the diversity of tactics in use; this list may not be comprehensive.

Strict Voter ID Laws

Increasingly strict voter ID laws have been on the rise since 2000, with the biggest shift occurring in 2006 following the release of a controversial report from the Commission on Federal Election Reform that recommended that all states require voters to have photo IDs. By 2016, 11 states had some form of strict voter ID laws.

Voter IDs laws have increased since 2000

Ensuring the integrity of our elections by preventing voter fraud and making sure that each citizen gets an equal opportunity to cast their vote are what the voter ID laws should seek to balance. Initial evidence suggests that has not been the case.

In 2016, the U.S. Court of Appeals for the Fourth Circuit struck down North Carolina’s voter ID law, explaining that its provisions “target African Americans with almost surgical precision” and reporting that it “bears the mark of intentional discrimination.”

As reported in Mother Jones, a study from the University of Wisconsin-Madison suggested that between 12,000 and 23,000 registered voters in Dane and Milwaukee Counties did not vote in the 2016 Presidential election because of the state’s voter ID law. The study’s authors declined to extrapolate the data to determine a state-wide estimate, citing a lack of information regarding the regions outside of the areas surveyed. Candidate Trump won Wisconsin by less than 23,000 votes.

Voter Purges

In at least nine states, voter purges employ an easily manipulated “use it or lose it” law. The law, originally designed to identify and remove from voter lists those people who have died or moved, has been used in recent years to remove still-breathing, in-state residents who did not vote in prior elections.  A report by American Public Media estimates that 107,000 eligible voters in Georgia were so removed in 2017 and another 50,000 in Ohio were eliminated in 2015 and 2016. A study from the Brennan Center for Justice suggests that states formerly covered by Section 5 of the Voting Rights Act are more aggressively purging registered voters than other states. How many of them are still eligible to vote was not determined by the report.

One of the more infamous cases of purging occurred in Florida well before the Shelby decision on the VRA. During the 2000 presidential election, Florida did not permit ex-felons to vote. Consequently, 58,000 names were purged prior to the election because they were identified as ex-felons. The election decision between Al Gore and George W. Bush was contested for other reasons, and Bush ultimately won the race in a recount a month after the November election. His margin of victory was 537 votes.

An investigation the following year revealed that “at least 1,100 eligible voters were wrongly purged” before the 2000 election. That estimate may be low, according to the Tampa Bay Times. A court-ordered re-analysis of the list using updated criteria determined that 12,023 people had been wrongly included.

Polling Place Closures and Relocations

In a recent report, the Leadership Conference Education Fund found that between 2012 and 2018, jurisdictions previously covered by Section 5 of the VRA closed 1688 polling places. About 70% of these closure occurred after the 2014 election. Fewer polling places can confuse voters as to where they can vote, and often generate longer lines and wait times during voting periods. The end result can demoralize voters and reduce turnout.

There are justifiable reasons that have nothing to do with discrimination to reduce polling places, and consolidations can be executed equitably. But the changes to the VRA mean that there is no longer a process to ensure that reductions are disclosed to the public, are conducted with the input of impacted communities, and do not discriminate against voters of color.

Some limited evidence suggests there is cause for concern:

  • Prior to the 2018 midterm elections, the Pew Charitable Trusts reported that 10 Georgia counties with large black populations closed polling places based on the recommendation of an election consultant. In some cases, polling places were relocated outside the reach of public transit, sometimes as far as 75 miles away.
  • In Dodge City, Kansas, which has a large Hispanic population, the city’s only polling place was moved outside the city limits. Even before 2018, access to the polls in Dodge was limited by sheer volume. The one polling location served 13,000 registered voters, whereas the average number of voters per polling location in Kansas was 1200.
  • In 2016, North Carolina had 158 fewer early polling places in 40 counties with large black communities.

Fraud, Hacking, and Interfering with the Vote

 

Election Fraud

Supporters of various laws that suppress votes claim the new laws are necessary to combat rampant voter fraud but they have consistently failed to back up their claim with relevant data. Nonetheless, real election fraud, though rare, does happen.

Evidence of election fraud in North Carolina’s 9th Congressional District in the 2018 election led to an arrest and prompted the State Board of Elections to order a new vote. A campaign worker for Republican Mark Harris, the winning candidate in the November election, was indicted for the criminal mishandling of absentee ballots. Harris declined to run in the new election.

Hacking

Our embrace of email and social media for government and campaign communications, electronic voting technology, and voting over the Internet makes the electoral system increasingly vulnerable to hackers.

  • Mock Internet voting elections have been hacked and phantom candidates installed.
  • In the run-up to the 2018 midterm elections, email systems were found to be vulnerable to hacking in a third or more of counties with tight congressional elections.
  • Privacy and security risks associated with internet voting have been the subject of warnings by both the Department of Homeland Security and the National Institutes for Standards and Technology. Internet voting is currently utilized by thirty-two states and D.C., primarily for military and overseas voters.

In more than two dozen states, no paper record of verified votes are produced by the voting machines in use. Without paper records, attempts to digitally alter votes are nearly impossible to detect. For the majority of states that have voting machines that generate paper records, audit procedures have not been established to identify tampering of vote tallies.

Foreign Interference

State and local election systems have already been breached; they find themselves on the front lines of a cyberwar with sophisticated nation-state rivals and other malevolent actors. Protecting the integrity of our elections will require upgrading outdated systems, including voting machines and registration databases.  As chair of the Federal Election Commission, Ellen Wintraub stated that she is “gravely concerned about ongoing efforts by geopolitical adversaries to undermine our democracy.”

Over the past year, Microsoft said it had sent more than 740 notifications to political party organizations, campaigns and democracy-focused nonprofits that use its free cybersecurity services, warning that they had been targeted by foreign government hackers. Most of the attempted infiltrations, the company said, were from Iran, North Korea and Russia.

Structural Factors

The principal of one person, one vote envisioned by the Founding Fathers has been distorted by structural factors which have come to enshrine disproportionate representation among states and among districts within states. Under the 14th Amendment’s Equal Protection Clause, all citizens and all citizens’ votes must be treated equally under the law. But under the Electoral College system, which in most states is a ‘winner-take-all’ process, electoral outcomes can and do undermine the popular vote.

Electoral College’s ‘Winner-Take-All’ Process

Two of the last three presidents were elected to their first term in office with fewer votes than their opponent, a result of an imbalance in the Electoral College process. According to Lawrence Lessig, Harvard law professor and founder of Equal Citizens, “the Electoral College effectively marginalizes the tens of millions of voters living in solidly red and blue states… In a winner-take-all system, any votes over the 50 percent margin are considered “wasted votes:” — over 52 million votes were ignored in the 2016 election.” That is why 99% of campaign spending in 2016 was in the14 battleground states.

Lessig cites two examples to support his argument: Clinton’s margin of victory in Minnesota (just 45,000 votes, winning 46.4% to 44.9%) versus Trump’s victory in Michigan by just 10,000 votes.  Despite these slim margins, Clinton got 100% of Minnesota’s 10 Electoral College votes, and Trump won all of Michigan’s 16 Electoral College votes. “The votes for president of millions of U.S. citizens get discarded, simply because they are not in the majority in a particular state.”

Presidential candidates must persuade not a majority of American voters, but a majority of voters in only14 battleground states. During the 2016 presidential race, two-thirds (273 of 399) of the general-election campaign events took place in just 6 states (Florida, North Carolina, Pennsylvania, Ohio, Virginia, and Michigan) and 99% of ad spending and 95% of candidate campaign stops were concentrated in the 14 swing states.

Imbalance of Representation in Congress

The number of congresspeople in the US House of Representatives was originally capped at 435 in 1910 and cemented in place with the Reapportionment Act of 1929. The Act created a method for automatically reapportioning house seats based on population changes revealed in the 10-year census. Over time, however, the proportion of voters each congressperson represents has become greatly skewed. Because the number of Representatives also dictates the size of the Electoral College, the distribution of votes no longer fairly reflects the country’s population distribution.

An Opinion piece by the NY Times Editorial Board in 2018 included the following:

  • Montana and Wyoming each have one representative, but Montana’s population — 1.05 million — is nearly twice the size of Wyoming’s.
  • Rhode Island, which has roughly the same population as Montana, gets two seats.

As congressional districts have become larger, each congressperson now represents an average of 750,000 voters. Research has demonstrated that positions taken by congressional representatives tend to be at odds with those expressed by the majority of their constituents. The representatives are also more likely to be a target of special interest lobbyists.

NOTE: Discussion around fair and equal representation sometimes includes the Senate. But, as Christopher Condon of the Center for the Study of the Presidency and Congress pointed out during his review of this document, representation in the Senate was never meant to be based on population. According to an analysis by CNN, the Senate has an intentional bias towards the less-populated states (CNN mistakenly refers to them as “small” states) that was narrowly agreed to by the authors of the Constitution. It was the framers’ way of ensuring “inclusion” of those smaller populations in federal policymaking.

Single-member Congressional Districts

Minority-party members are disadvantaged by single-member districts.  For example, half a million Republicans in New York City do not have a representative in Congress.  Similarly, over a third of the voters in Arkansas are Democrats, and yet they too do not have a representative in Congress.

This was not always the case. Multiple-member districts were the norm when the nation was born.  At the state legislative level, nine states still use multimember districts to elect at least one state legislative chamber, and four — Arizona, New Jersey, South Dakota and Washington — elect all their state lawmakers this way.

Contributors: George LinzerMichael Deal

Reviewed by: Center for the Study of the Presidency and Congress

Published: December 5, 2019

Updated: March 5, 2020

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Voter imageThe right to vote in America is a fundamental democratic liberty – it is one of those rights that we fight wars to defend. Yet, when the nation was founded, voting was almost exclusively reserved for propertied white men. Since then, voting rights have slowly grown more inclusive, expanding to an ever broader cross-section of the American public, but this progress has almost always been hard won.

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