This article appears in the Winter 2019 issue of The American Prospect magazine. Subscribe here.
As a result of the 2018 midterm elections, Democrats now have unified control of 14 state governments and the opportunity to carry out reforms of the electoral process. What should they do with these newfound powers?
Most electoral reforms have historically taken place at the state level, though the rare measures Congress has taken—the 1965 Voting Rights Act, the 1993 Motor Voter Registration Act, the 2002 Help America Vote Act, and campaign-finance legislation in the 1970s and early 2000s—have had important ramifications. But with a divided federal government for at least the next two years, congressional action is a remote prospect, and the initiative will fall to the states.
Among election-law experts, there is a substantial consensus in favor of certain desirable changes. Many of these are also easy lifts for Democrats, who are likely to see these reforms as aligning with their political interests. The more challenging issues for Democrats concern reforms that require political incumbents to relinquish some of the immediate political advantage they enjoy for the purpose of upholding democratic values and strengthening public confidence in the integrity of elections.
I’ll start with the politically easy reforms. Election-law experts generally agree that the biggest regulatory barrier to more widespread participation is the voter-registration process. Unlike many other democracies where the government itself is responsible for registering eligible voters, most states in this country place the burden on the voters to get themselves registered. States often require registration long before elections, when the less politically engaged are not thinking about voting. Moreover, when Americans move, the burden remains on them to re-register at their new address.
The impact on voting participation of this system is substantial. Among registered voters, turnout is much higher than many people realize (87 percent in the 2016 election). But voter registration matters, and because only about 64 percent of eligible voters are typically registered, the overall turnout rate among eligible voters even at recent high points, such as the 2016 presidential election, remains around 60 percent.
Moving to automatic voter registration helps to address this problem. In 2016, Oregon became the first to use automatic registration and now more than a dozen states and the District of Columbia have adopted it in various forms. With automatic registration, eligible citizens are registered—unless they opt out—when they interact with government agencies, such as by getting or renewing a driver’s license. These agencies then electronically transfer this information directly to election officials. Another crucial step would be to increase the portability of voter registration: People who move within the same state should have their voter registration updated automatically with changes in their mailing address.
A further step—indeed, the single reform that has shown the most demonstrable impact in raising voter turnout—is same-day registration for voters who show up to vote and are not already registered but are otherwise eligible. Same-day registration makes particular sense in states that allow early voting, though some states also permit registration on Election Day itself. States need to weigh whether in practice they can implement Election Day registration without causing undue delays at the polls. But to the extent feasible, it would certainly enhance participation.
In addition, moving to online registration, which most states now already use, would not only make registering easy for many people but also improve the accuracy of the registration rolls, compared with paper records that are often long out of date. Voting rolls in most states are often inflated with the names of dead people or those who have moved out of the jurisdiction; we need to find ways to improve the accuracy of the rolls without wrongly removing eligible voters.
Another easy lift for Democrats is to make it easier to vote on a day other than a single workday. On this front, early voting and vote-by-mail (VBM) are to some extent functional alternatives, but early in-person voting has some clear advantages over VBM. States prefer VBM because it is less costly than staffing early-voting sites. But when there has been significant voter fraud in recent U.S. elections, it has been through the absentee ballot process, not in-person voting. In a notorious example, the courts ordered all the absentee ballots to be discarded in a Miami mayoral race in the mid-1990s because of pervasive absentee ballot fraud. As this article goes to press, North Carolina has refused to certify the results of one congressional race out of concern about possible absentee ballot fraud. No such problem has yet developed in the western states (Washington, Oregon, and Colorado) that now use VBM for all their elections, but we still ought to be concerned about the potential for fraud that VBM introduces.
Another problem with VBM, which became more apparent this year, is that it prolongs Election Day and raises suspicions about fraud when the outcome shifts in the prolonged ballot-counting. Many voters are unwilling to trust the U.S. Postal Service and prefer to turn their ballots in by hand on Election Day, even though they are casting VBM ballots. When VBM ballots come in on Election Day, checking the signatures on the ballots against the signatures on the registration rolls adds considerable delay to the counting process. In addition, the VBM system depends on the Postal Service’s efficiency and effectiveness. We now face situations— such as the recent elections in Arizona and California—in which hundreds of thousands of ballots still have to be counted after Election Day, and in which the winner cannot be determined well past a week afterward.
In a world of hyperpolarized political parties and a frenzied social media ecosystem, delays of this length in determining election winners are dangerous. We got a taste of this problem after the recent midterms, when Speaker of the House Paul Ryan called California’s election system “bizarre” and said that it “defies logic” because many congressional races in California took days to be decided and the Democrat ended up winning despite having been behind on election night. There was nothing nefarious about California’s process, but prolonged delays invite suspicions. When the stakes are high, partisans will question the legitimacy of the process, and public confidence in elections is jeopardized. To the extent we can achieve reform goals while bringing closure to election results closer to Election Day, we should do so. Early voting has clear advantages over VBM in this respect.
NOW FOR SOME OF THE heavier lifts. Several reforms that strengthen democracy challenge Democrats to resist the temptations of power. The creation of independent redistricting commissions is a key case in point.
When any party is in power, it is likely to be reluctant to create independent redistricting commissions by statute because they would be viewed as a form of unilateral disarmament. Such commissions are required to draw districts according to substantively fair, transparent, and impartial criteria. But when the other party regains control, what’s to prevent it from repealing the statute and gerrymandering districts all over again? This is why most such commissions have been created by popular voter initiatives rather than by state legislatures. But in most states they control, Democratic legislatures could refer a potential state constitutional amendment on independent redistricting commissions to the voters, and a successful amendment would be more difficult to undo than a legislatively created commission.
Even if a state constitutional amendment poses too high a hurdle, Democrats now have reasons to move ahead with legislatively created commissions despite the risks. Democrats and reform groups have made constraints on gerrymandering and the push for independent districting commissions one of their central democratic-reform causes. If Democrats fail to act on this issue when they have the power to do so, they will undermine the credibility of this reform effort.
In addition, once such commissions are up and running, voter pressures may make it difficult for Republicans to eliminate them when they return to power, even if the commissions are created by statute. The public has become strongly supportive of commissions. Voters in 2018, when given a choice through ballot measures to adopt independent redistricting processes, opted in favor of doing so in all four states where the issue was on the ballot.
But any commission structure and process that Democrats adopt must be perceived as fair and impartial. Many Republican officials oppose independent redistricting commissions in the belief that they favor Democrats. So, if the commissions are to become a stable solution to the gerrymandering problem, they need to be developed with as much bipartisan backing as possible and cannot serve as a covert means of creating a Democratic gerrymander. Were that to happen, it would delegitimize the move toward independent redistricting commissions not just in a particular state but nationally.
A second important reform that requires political incumbents to relinquish some power is to take election administration entirely out of the hands of elected officials. In two-thirds of the states, partisan elected officials, such as secretaries of state, run elections. This is one of the unique pathologies of the American electoral system—illustrated in 2018 by what happened in Georgia, where Secretary of State Brian Kemp was able to set critical voting-related policies for an election in which he was the Republican candidate for governor.
Some secretaries of state do perform in admirably nonpartisan fashion. Even so, the public would have greater confidence in the integrity of elections if they were run by independent administrative bodies, designed to require legislative support from both parties, with nonpartisan officials who serve beyond the terms of the elected leaders who appoint them. A number of democracies have created independent electoral tribunals that could also serve as a model for American reforms. These tribunals are a specialized branch of the courts whose jurisdiction is limited to electoral matters but includes most issues of election administration. Their ability to run closely contested elections fairly has helped give legitimacy to the results.
Finally, Democratic states will undoubtedly debate campaign-finance reforms, including public financing, for state and local elections. Public financing has typically been centered on individual candidates rather than political parties. But parties are critical in making democratic politics and governance function effectively. So it’s a mistake for campaign-finance regulation of any form to give the role of political parties the short end of the stick and encourage money to flow primarily to individual candidates. One possibility is for states to provide targeted support for the parties to carry out functions for which the parties are particularly well suited, such as registering new voters. Another option is to create voucher systems that encourage voters to donate to parties. Parties should also be able to coordinate more with their candidates’ campaigns than is possible under federal law.
National election reform is difficult, not just because government is divided along partisan lines, but because Americans are cautious about such changes. That includes a concern about the unintended consequences of change. States are inevitably the arena where most reforms of the political process are going to take place in the next few years, and this gives states an opportunity to prove that certain reforms are worth the candle. It will be all the more impressive if states that Democrats control adopt good-government reforms that not only align with their immediate political interests but sometimes run counter to them.