10 months ago
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This fall, the United States will hold its first presidential election since a mob, egged on by then-President Donald Trump’s false claims of widespread voter fraud, stormed the Capitol to try to stop Congress from ratifying president-elect Joe Biden’s Electoral College victory. To this day, Trump and his allies continue to insist that the 2020 election was stolen, despite the fact that his own administration called it “the most secure in American history” and judges denied or dismissed more than 60 lawsuits charging voter fraud.
State legislatures have used their baseless allegations as a rationale for passing laws that restrict voting rights. As of mid-October, lawmakers in 45 states had introduced 325 such bills in 2023, according to a report by the nonpartisan Brennan Center for Justice, and 14 states collectively enacted 17 of them. That’s more than in any other year this past decade besides 2021, when legislators passed more than 30 restrictive laws. Most of the laws enacted last year will make it harder for voters to cast their ballots by mail.
But there is some good news. Legislators also introduced a record 606 bills expanding voting access through mid-October of last year, the center reported, and 23 state legislatures enacted 47 of them, more than twice the number of such laws enacted in 2022.
Unfortunately, access to the polls depends on where you live. “There remains a stark divide between states,” the Brennan Center report noted. “On one side are those that are broadening democratic participation. On the other are those making it harder to vote and easier for partisan officials to interfere in democratic processes. Many states passing new restrictive laws are the places where it is already hard to vote.”
Certainly, state attacks on voting rights predated the January 6 insurrection. Many resulted from the US Supreme Court’s 2013 Shelby County v. Holder decision, which voided a Voting Rights Act requirement that states that historically discriminated against Black voters needed permission from the US Department of Justice before they changed their voting laws. After the Shelby decision, there was an explosion of state voter ID and similar laws, as well as other efforts to keep people away from the polls.
The Union of Concerned Scientists (UCS) entered the fray in 2018 when Michael Latner, a political science professor at California Polytechnic State University, came on board as our first Kendall fellow to focus on scientific integrity and bias in US voting systems. Before joining UCS, Latner coauthored Gerrymandering in America (Cambridge Press, 2016). Since then, he coauthored Gerrymandering the States (Cambridge Press, 2021) and a number of UCS reports, including Our Unhealthy Democracy in 2019 and Achieving Multiracial, Multiparty Democracy in 2022.
Latner and his UCS colleagues are applying election science to promote election data transparency, equitable ballot design, and fair voting-district mapping to ensure all eligible US voters are able to exercise their right to cast a ballot. Below is an abridged version of my recent conversation with Latner about their plans for the upcoming election season.
EN: Before we get into the details, why don’t you define what the term “election science” means for readers who are not familiar with it.
ML: Election science, in the context of our work, refers to the application of quantitative and statistical tools to evaluate election administration, operations and outcomes. Our goal is to be able to accurately capture all the relevant information in an electoral ecosystem, so we collect everything from registration and voting records—including electoral system rules, ballot data (who, how, when, and where people vote), as well as administrative records regarding how votes are counted or not counted—all the way through election results certification. We then use this information to diagnose potential electoral process problems and how they emerge, including such problems as low participation rates, errors in the ways that ballots are processed, and sources of bias in election outcomes.
EN: You and your colleagues have been reviewing election laws, procedures and rules in a number of states and are drafting guidelines that would guarantee public access to election-related data. What specifically are you looking at?
ML: Our policy team has taken a deep dive into election administration rules and procedures in five states—Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin—to understand specific challenges and solutions for ensuring election integrity. We also are taking a close look at a handful of other states with exceptionally high voter turnout or excellent administrative records to learn from them.
Besides that, we are consulting with numerous election experts from a variety of fields to develop a set of universal standards and best practices to improve election data transparency in three areas: voter database maintenance; ballot tracing and processing; and ballot curing, auditing and certification. Specifically, we are studying these data and procedures to figure out how states can reliably and regularly update voter files used to track voter participation and results at the precinct level while election results come in, and how such problems as ballot rejection and administrative errors can be quickly and accurately identified and fixed when they occur. Further, we are exploring best practices for conducting election auditing and publicly releasing election evaluation data prior to election certification. We can’t expect voters to be confident in election outcomes unless we can validate the integrity of the process.
EN: Another major concern is what you are calling “equitable ballot design.” I take it that in this case, “equitable” means better, more understandable design. No doubt, there is plenty of evidence that there is a problem with how ballots and voter application forms are designed. I vividly remember Palm Beach County, Florida’s notoriously confusing butterfly ballot in the 2000 election and the hanging chads that made it so difficult to figure out how people intended to vote.
In 2020, you conducted an analysis of ballot rejection rates in a handful of states and found that a significant percentage where rejected due to poorly designed application forms. What are you planning to do about this problem in the upcoming election season?
ML: Indeed, our work with the Greater Cleveland Coalition (GCC) in Cuyahoga County, Ohio, opened our eyes to the data challenges that community organizations face in their outreach efforts, as well as how those challenges intersect with structural inequities in terms of whose votes count.
In the analysis you mentioned, we looked at the historical correlation between ballot rejection rates and county racial composition, which showed there are higher rejection rates in counties with a higher percentage of Black voters. The purpose of the analysis was to emphasize the need to monitor absentee ballot applications and mail ballot rejection rates when the country was preparing to hold an election during the pandemic with millions voting by mail for the first time. Sure enough, we identified a surge of application rejections coming out of the Cleveland area and alerted GCC staff. They worked with Cuyahoga County election officials to contact and correct the applications of thousands of voters who might have never received ballots.
By “equitable,” we mean not just better-designed election materials, but also materials that are designed in such a way that does not exacerbate existing inequalities in participation and representation. The primary reason the Cuyahoga County Board of Elections rejected those Cleveland area applications was because applicants put their birth date in the wrong place or failed to enter it altogether due to the form’s poor design. That’s what we mean by a design problem, and it occurs not only with ballots, but with lots of election materials.
Studies have identified a number of design principles and best practices that reduce such ballot irregularities as voters failing to cast a vote for a specific contest, called undervotes; voters voting for more candidates than allowed, called overvotes; and voters failing to follow ballot instructions. Best practices include providing visual aids with voting instructions, listing candidates in single columns, providing a party ticket voting option allowing voters to support one party’s candidates, and ensuring that ballots are available in voters’ preferred language. All have been shown to reduce errors and improve ballot completion rates.
We are working in our five target states to improve the design of 2024 election materials where possible. Some of these changes are administrative. Other improvements will require state legislative changes, greater collaboration between experts and elected officials, and litigation in cases where design problems violate voting rights.
EN: Congressional maps drawn after the 2020 Census in a dozen states have been challenged in court, and in a number of cases courts are protecting voter rights. Just a couple of weeks ago, for example, the Wisconsin Supreme Court ruled that the Republican-drawn districts violate the state constitution and ordered legislators to draw new maps for the 2024 elections. And earlier last month, the New York Court of Appeals ordered an independent commission to redraw the state’s congressional districts. Can we rely on the courts to handle this ongoing gerrymandering problem?
ML: In a word, no. Court-designed redistricting is typically an improvement over a single party in control of a state legislature maximizing partisan advantage when designing their own districts and congressional districts. But we have also seen, in Ohio and North Carolina for example, that partisan majorities on courts are quite capable of okaying district maps that favor their party.
Whether a redistricting authority for a given state is a legislature, a court, or even an independent redistricting commission, what matters more is the set of rules and standards that bind the authority’s activities. The standards we are developing are centered around two requirements: that redistricting authorities explicitly demonstrate and rank the criteria that guide the design of districts, including requirements that minimize racial- and partisan-vote dilution; and that the public be involved in the redistricting process. To that end, we are reviewing best practices and procedures to develop standards for public input and inclusion requirements for the redistricting process, from the beginning through the implementation of final plans.
EN: In November, a federal appeals court three-judge panel issued a ruling asserting that only the federal government can sue under a Voting Rights Act section prohibiting voting laws, procedures and rules that discriminate on the basis of race. What is your take on this unfortunate ruling?
ML: This decision out of the 8th Circuit, if upheld, would be the final nail in the coffin of the Voting Rights Act. If there is no “private right of action,” as the appeals court ruled, private parties—the civil rights groups, political parties and individuals who have filed most of the cases alleging discrimination—would have no right to bring such lawsuits. It will certainly be appealed and likely will wind up in the US Supreme Court. Apparently at least two of the justices are open to the argument that only the federal government can bring cases to enforce the Voting Rights Act, but such an interpretation violates more than half a century of precedent.
EN: Meanwhile, what is Congress doing to push back against state attacks on voting rights? There are a few bills pending in Congress that, if enacted, would go a long way to protect voters. I’m talking about the Freedom to Vote Act, the Fair Representation Act, and the John Lewis Voting Rights Advancement Act. What is the status of those bills?
ML: First, I should mention that in December 2022, Congress passed the Electoral Count Reform Act and the Presidential Transition Improvement Act as part of an omnibus spending bill. Those laws, passed in the final days of the 117th Congress, directly addressed the tactics Donald Trump deployed to try to overturn the 2020 election: getting GOP-controlled state legislatures to claim that state elections had “failed” so that they could choose alternate electors; challenging the certification of electors through frivolous lawsuits; and of course trying to persuade Vice President Mike Pence to reject certified state electors and replace them with Trump loyalists.
But the provisions in those two laws, necessary as they are, only protect against the corruption of the Electoral College certification process. They do not address the corruption of the election process on the front end, before ballots are even cast. Bills such as the Voting Rights Advancement Act and the Freedom to Vote Act that address vote denial, gerrymandering, and equal access to the ballot—as well as bills that would establish structural reforms guaranteeing the integrity of elections and the quality of representation for US residents—are going nowhere in the current Congress. Consider the fact that Mike Johnson, the current speaker of the House of Representatives, was a leader in the pitiful litigation effort to overturn the 2020 presidential election. He even voted against certifying Joe Biden’s victory after the January 6th attack on the Capitol.
EN: Finally, what can the general public do to protect voting rights?
ML: Everyone can do something to protect our democracy.
Let me give you a great example: In 2016, Katie Fahey, then a 27-year-old program manager for a Michigan recycling group, recognized that gerrymandering in her state was denying citizens adequate representation. At the time, the governing party in the state legislature designed its own district maps without constraint. A political neophyte, Fahey posted a short message on her Facebook page asking if anyone was interested in joining her to address the problem. Her post ultimately sparked a grassroots campaign with thousands of volunteers for a constitutional amendment creating an independent commission of citizens to oversee redistricting. The referendum for the amendment they placed on the Michigan ballot in 2018 passed with 61 percent of the vote, and after the 2020 census, the new commission drew new, fairer district lines.
This year, people can take action in their own community by supporting and volunteering for organizations working to increase electoral participation, such as their local League of Women Voters and NAACP, or such statewide organizations as Common Cause. Besides getting out the vote, people can help local officials protect election integrity and lend a hand at election time at the polls, as election administrators are often dependent on volunteer workers. Most important, if governing party legislators are trying to insulate themselves through restrictive or biased election laws, vote them out of office. Voters should support candidates who advocate for electoral integrity and universal standards that ensure free and fair elections for everyone.
