Election Laws and Protecting Voting Rights

By John Gregory | 8/28/18 8:30 AM

Election day is a little more than two months away and the campaigns are shifting into high gear for their final pushes toward the voting on November 6.

But amid the speeches, rallies, and political commercials is an undercurrent of concern about low voter turnout and polling integrity.

KET’s Kentucky Tonight discussed a range of election issues with Anne Cizmar, a government professor at Eastern Kentucky University; law professors Joshua Douglas and Paul Salamanca from the University of Kentucky College of Law; and Bruce Hicks, a history and political science professor at the University of the Cumberlands.


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Flexible Registration and Voting Policies
In recent midterm elections, Kentucky has averaged about 48 percent voter turnout. That compares to nearly 60 percent in the last two presidential elections and only 31 percent for the 2015 gubernatorial election.

State election officials across the country have tried a range of tactics to improve voter turnout, including automatic voter registration and allowing people to register on election day. Many states also allow some form of early voting either in person or by mail.

“These reforms really haven’t led to higher turnout, says Bruce Hicks of the University of the Cumberlands. “You’ve got more people voting early, but it’s about the same people who would have voted anyway.”

Hicks says one concern with early voting is what happens to a person who casts his or her ballot early, then a late-breaking development causes them to want to change their vote? Would they be allowed a do-over, or would they be stuck with their existing ballot?

Paul Salamanca of the University of Kentucky says he understands that allowing balloting on only one specific day is inconvenient for many voters. But he says that also makes elections into a national event that Americans across the country share. He contends that having voting open for several weeks would undermine that tradition.

“I could see a compromise, though,” Salamanca says. “In Europe, for example, typically voting takes place over the course of two days and they typically have it on a weekend, which gives people more time to get to the polls. So it’s still a national event.”

More flexible voting and registration processes don’t address deeper problems of voter apathy and disenfranchisement, says Eastern Kentucky University’s Anne Cizmar. But she says they can benefit people who tend to move more frequently and may not have a proper identification with their current address.

“So particularly for younger voters, some of those policies may help them because as they become excited about the election… some of them may want to vote but then they’re not able to do so,” Cizmar says.

Giving 16-Year-Olds the Vote
Another option for drawing more younger people to the polls is to lower the voting age.

“Eighteen is actually a historical accident,” says UK’s Joshua Douglas. “The voting age was 21 when we were founded. [That] really carried over from British colonial times, and that was the age at which men could wear a suit of armor, so we adopted that when we became a country.”

The nation’s voting age wasn’t lowered to 18 until 1971, during the height of the Vietnam War. Douglas argues that American states already grant many rights to 16-year olds, including driving, sexual consent, and working, so why not add voting to that list. He says several cities in Maryland have lowered the voting age in local elections to 16 years old.

So far, turnout among those younger voters in those communities has been double that of turnout rates for those 18 to 24 years old, according to Douglas. The hope, he says, is that allowing younger people to vote will increase the likelihood that they will continue to actively participate in elections as the get older.

While Douglas believes 16 year olds with sufficient civics training are mature enough to vote, Salamanca isn’t so sure. He contends that voting is not just a right but a social trust among Americans that can result in laws and tax policies being changed.

“I think we need to be careful with this particular trust,” says Salamanca, “that we assign it to people who are conscious of the fact they are not only acting on their own behalf but they’re acting on behalf of other people,”

Recent court cases have challenged the drawing of electoral districts in several states, alleging the lines were drawn to benefit one party over another. On Monday a federal court ruled that Republican lawmakers in North Carolina illegally set congressional district boundaries in that state. The three-judge panel indicated that the current gerrymandered districts may need to be redrawn before the November elections.

“What’s interesting here is the North Carolina Republicans actually admitted that they were drawing the lines to have a partisan effect,” says Douglas. “The problem under the law has been there’s no judicial standard where a court can test whether politics goes too far in the line-drawing process.”

Earlier this year the U.S. Supreme Court avoided direct rulings on gerrymandering cases from Wisconsin and Maryland, delaying the issue for a later court term. Hicks says the Supreme Court ruled in 1986 that it has the constitutional authority to examine how districts are drawn. He says their challenge is to determine when partisanship played an improper role in redistricting.

“It’s been 32 years and the court has struggled to come up with a standard,” says Hicks. “They’ve yet to come up with a standard that they feel is reliable.”

In 37 states including Kentucky, legislatures are responsible for redistricting. Cizmar says that contributes to partisan boundaries.

“You’re allowing the elected officials to choose their electorate rather than allowing the electorate to choose their elected officials,” says Cizmar. “So in that way it’s not really what we would hope for in terms of free and fair elections.”

A few states have moved to independent redistricting commissions, and Douglas says five states have ballot measures this year to create similar bodies. He agrees with Cizmar that politicians shouldn’t be allowed to choose their own voters.

“Even independent redistricting commissions aren’t going to take away all politics out of the process,” Douglas says. “But what we’ve seen in states that have independent redistricting commissions is that the maps are fairer than when the politicians themselves draw the lines.”

Salamanca opposes the idea of independent commissions because he says that takes redistricting authority away from elected officials and gives it to individuals who were not elected by anyone and may not acknowledge the biases that they bring to the process.

“An independent commission sounds great, but independent commissions have a tendency in the United States to be left of center,” says Salamanca. “So people of a conservative bent ordinarily do and should oppose independent commissions.”

Salamanca admits politicians may do a bad job at redistricting. If they do, he says voters have the opportunity to defeat them in the next election. But Douglas says it’s not that simple.

“You can’t throw them out because they’re crafting districts specifically to keep themselves in power,” says Douglas.

Voter ID Laws
The panel generally agrees that there is no wide-scale voter fraud in presidential or statewide elections, however there are occasional instances of vote buying and absentee ballot fraud in local elections. More than 30 states have some form of voter identification laws to address voter fraud. But Douglas contends tougher ID standards only help prevent people impersonating someone else at the polls, which he contends is infrequent and ineffective.

“It’s just stupid,” says Douglas. “If you want to rig an election, you’re not going to do it by getting people to go to the polls and pretend to be someone else. You’re going to find a way that actually would work and have a less likely chance getting caught.”

Voter ID laws may also result in some people being disenfranchised. Cizmar says younger voters who move a lot, or city dwellers who don’t drive and therefore don’t need a driver’s license, may find it harder to meet stricter identification standards. She says the laws may also hamper female voters.

“Because women are more likely to change their names… when they get married or go through different life steps, so as a result their voter registration may not be current,” Cizmar says. “So some women were being turned away from the polls just because their last name had changed.”

Salamanca agrees that voting fraud protections should be crafted so as to not disenfranchise anyone.

“I think it’s just as wrong for someone to vote twice as not to be able to vote at all,” says Salamanca. “We need to make sure that everyone has his or her vote and not more than one.”

Campaign Financing
The influence of money on politics continues to perplex the American democratic process. Salamanca says he doubts reform advocates will ever succeed in overturning Citizens United, the Supreme Court case that struck down limits on campaign contributions by corporations and other organizations. He says it’s ironic that looser financing rules actually started among liberals who wanted unions to be more politically active, but the issue has since been taken over by what he describes as the libertarian right.

Even if campaign spending could be regulated, Hicks says the devil would be in the details.

“When you talk about limiting spending you are limiting speech,” says Hicks. “How do you regulate that? What level of spending is acceptable? Somebody would have to make those decisions.”

In the absence of limits, Cizmar says she wants to see greater disclosure requirements so voters can know exactly who gives to each candidate and how much. Douglas says he supports public financing of political campaigns, which he says would level the playing field and remove the advantages that wealthy donors have.

He says the city of Seattle is experimenting with a “Democracy Voucher” program that gives local voters $100 in vouchers they can then contribute to the candidate of their choice running for city office. In return for accepting this public financing (paid for through property taxes), Douglas says the candidates pledge to not take any party or political action committee funding, and they agree to participate in a set number of public debates.

Seattle first used the voucher system in 2017 municipal elections, and Douglas says the experiment worked well. It will be available again in the 2019 election cycle.