Update on US Elections and Voting Issues

Update on US Election and Voting Issues

By Amy Pearl

Democracy is a form of government in which all citizens can participate equally either directly or through their elected representatives. Two threats to democracy in the US today are the loosening of regulations on the involvement of corporations and money in elections and our elected representatives and the disenfranchisement of eligible voters. The rising growth of income inequality in the US fuels this threat. Former Supreme Court Justice Louis Brandeis said, "We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both."

January 2014 brought two developments addressing the erosion of access to voting in America.

Improving US Election Administration

In last year’s speech, President Obama announced the creation of a bipartisan Presidential Commission on Election Administration. The purpose was to “identify best practices and otherwise make recommendations to promote the efficient administration of elections in order to ensure that all eligible voters have the opportunity to cast their ballots without undue delay, and to improve the experience of voters facing other obstacles in casting their ballots, such as members of the military, overseas voters, voters with disabilities, and voters with limited English proficiency.”

The Commission took as its frame of reference the goal that no voter should have to wait in line longer than 30 minutes to vote. Just in time for this year’s State of the Union speech, the Commission released its report with these key recommendations:

  • Continue to expand online voter registration to improve the accuracy and efficiency of voter lists. Have all states update and exchange their voter registration lists to create the most accurate lists possible to increase registration rates, reduce costs, and protect against fraud.
  • Improve access to the polls through multiple opportunities to vote before the traditional Election Day, such as vote by mail and in-person early voting and the selection of suitable, well-equipped polling place facilities, such as schools. Security concerns of using schools may be met by scheduling an in-service training day for students and teachers on Election Day.
  • Use state-of-the-art techniques such as electronic pollbooks to assure efficient management of polling places including tools the Commission is publicizing and recommending for the efficient allocation of polling place resources.
  • The Commission recognized that there is an impending crisis in voting technology. After the debacle of the 2000 Presidential election, the federal government allocated funds to the states to update their voting technology and machines. These machines are wearing out and requiring replacement and there are no federal appropriations on the horizon. The Commission recommended reform of the standard-setting and certification process for new voting technology and encouraged the innovation and the adoption of widely available off-the-shelf technologies.

Generally, California, and specifically Santa Clara and San Mateo Counties, is ahead of the curve on election administration. We allow permanent vote by mail, without the need for any reason to vote “absentee.” California Secretary of State Debra Bowen has been a leading advocate for secure, accurate and accountable voting technology. And, as of the 2012 election, California has had on-line voter registration. But California is not perfect. The state is out of compliance with a federal mandate for a state-wide voter registration database. This is an obstacle to detecting registration in multiple jurisdictions and the future ability to cast one’s ballot in counties other than where you are registered, among other things. In addition, California counties are doubly hampered from replacing and/or upgrading aging voting equipment. In addition to the lack of federal funds, there are no new systems certified by the state and few replacements for existing equipment.

Voting Rights Amendment Progress: Good news, Bad news

Congress enacted the Voting Rights Act of 1965 to address entrenched racial discrimination in voting. Section 5 of that Act has a “preclearance” requirement for certain states and local governments to have changes to their voting law or practices approved by the US Government before being enacted. Section 4(b) contains the coverage formula that determines which states and local governments are subject to that preclearance. In subsequent years the Act has been challenged and upheld, and re-authorized and the coverage formula updated. Section 4(b) most recently identified most southern and southwestern states, as well as some jurisdictions in California and a few northern states as being subject to Section 5 preclearance.

Last year the US Supreme Court ruled in in Shelby County v. Holder. In this case, Shelby County, Texas challenged the constitutionality of Sections 5 and 4(b) of the Voting Rights Act of 1965. The Court ruled that Section 4(b) was unconstitutional because the coverage formula was based on data over 40 years old. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction is subject to Section 5 preclearance until Congress enacts a new coverage formula.

In January this year Representatives Sensenbrenner and Conyers introduced a bipartisan bill titled the Voting Rights Amendment Act of 2014 to update the Voting Rights Act (VRA). Key features include:

  • The new Section 5 preclearance coverage formula (five VRA violations in 15 years for statewide coverage; three violations in 15 years or one violation and persistent low minority turnout for local coverage ) will never expire and could cover more jurisdictions in the future. However, consent decrees and settlements do not count towards VRA violations.
  • It requires national notification of voting changes made within 180 days of an election.
  • It enhances the ability of groups to freeze potentially discriminatory voting changes via obtaining a court-issued preliminary injunction.
  • The bill would restore the Department of Justice’s ability to send federal observers to monitor inside the polls in the new Section 5 jurisdictions. It also would expand the ability of the DOJ to send observers nationwide.
  • The bill makes it easier to add jurisdictions to preclearance coverage through litigation, by removing the requirement to prove that the voting violations were intentional.

There are still many areas of concern that Congress should address as the bill moves forward. The new formula would only require Georgia, Texas, Mississippi and Louisiana immediately to be subject to Section 5 preclearance. The exclusion of North Carolina is of special concern, given the regressive voting legislation that has been passed in the state in the last two years. They passed a law that cut early voting by a week, eliminated same-day registration and enacted a strict voter ID law. Finally, the bill does not include automatically requiring pre-clearance for:

  • Reducing available non-English voting materials
  • Reducing polling place resources
  • Changes in polling place locations
  • Altering voting district lines in ways that are likely to dilute the power of voters of color. 

Note that the bill and the recommendations around election administration address separate issues. While addressing election administration is critical, it is imperative for Congress to act this year to protect voters from discrimination in a common sense, bipartisan way through passage of an improved version of the Voting Rights Amendments Act.

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