8

REFORMING AMERICAN VOTING

Did I end up finding a little blue pill to cure America’s electoral dysfunction? Unfortunately, it’s not that simple.

—MO ROCCA, COMEDIAN, 2012

In May 1949, just four years after the collapse of Adolf Hitler’s Third Reich, the American and European occupiers in the western part of a divided Germany supervised the drafting of a new German constitution. It guaranteed that every adult national “shall be entitled to vote.” Three months later, the German people exercised their voting rights in the first free election in their homeland since Hitler had seized power in 1933. “Deep in everyone’s heart is the question whether someday today’s voters may be punished for this,” said one voter. But vote they did. Emblematic of broad voter participation was the balloting in the small town of Stauffenberg, where an aged countess lined up with small farmers, shopkeepers, and laborers at the polls. Across West Germany, more than 70 percent of adult citizens cast ballots in a quiet election with no incidents at any polling place.¹

Seven decades later, the people of America still lack the explicit constitutional right to vote that most democratic nations have enshrined in their constitutions. The Constitution of the United States establishes the civil liberties necessary for a functioning democracy but not the right to vote. The original Constitution deferred voting qualifications to the states, and subsequent amendments specified only what states could not do with respect to denying suffrage based on race, sex, and age. Today’s Congress has shown no interest in acting on proposals for an affirmative right-to-vote amendment to the Constitution. Yet not only the postwar German constitution but other constitutions drawn under American supervision in nations such as Japan and Iraq guarantee the right to vote. The International Covenant on Civil and Political Rights that the United States ratified in 1992 (with the reservation that it did not supersede domestic law) likewise guarantees the right “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.”²

Despite the lack of a constitutional guarantee, the U.S. Supreme Court has at times interpreted the vote as a “fundamental right,” which would subject any abridgement to the highest level of judicial review known as “strict scrutiny.” The standard requires that a challenged law must meet a compelling state interest and be narrowly tailored to meet that end. It would establish a high bar for the state to surmount in enacting any law or regulation that burdens the right to vote.

However, the courts have typically not treated the right to vote as fundamental and subject to strict scrutiny. This places the vote on a lower plane than enumerated rights in the Constitution such as freedom of speech, which government cannot abridge. According to legal scholar Pamela S. Karlan,

The Supreme Court long ago expressed itself “unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage on any one.” And it reinforced this view in the notorious Bush v. Gore decision, with its almost offhanded declaration that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

In the Crawford decision as in other high court cases, Justice John Paul Stevens applied a “balancing test” to validate Indiana’s voter photo identification law. The test weighs the impact on the asserted right against the importance of the government’s interest. This more permissive standard provides states greater latitude than strict scrutiny to adopt measures that restrict opportunities for registration and voting.³

An affirmative right-to-vote amendment, like the version of the Fifteenth Amendment that Congress rejected in 1869, would bring America into line with most other democratic nations and with international conventions. It would not invalidate every restriction on the vote, any more than the right of free speech invalidates libel and slander laws. But it would rebalance the scales of justice in favor of the voter, not the state. The Fourteenth Amendment spanned 435 words, but an affirmative right-to-vote amendment could be crafted with just 50 words, as illustrated by the text that Democratic representative Mark Pocan of Wisconsin proposed in 2013:

SECTION 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.

SECTION 2. Congress shall have the power to enforce and implement this article by appropriate legislation.⁴

A right-to-vote amendment would likely doom felon disenfranchisement laws. The United States remains one of the few democracies that still withholds the ballot from felons who have completed their sentences, including probation and parole, and paid their legal debt to society. A comparative study of forty-five democracies found that only three other nations had similarly stringent disenfranchisement laws: Armenia, Belgium, and Chile. Twenty-one nations imposed no restrictions on felon voting even while in prison, fourteen imposed selective bans on prisoners, and only ten banned prison voting.⁵

In America as of 2017, forty-eight states and the District of Columbia prohibit voting by imprisoned felons; only the small states of Maine and Vermont impose no suffrage penalties on felons. As of 2016, thirty-four states prohibit voting by paroled felons and twenty-one states ban voting by felons on probation. Twelve states ban voting by ex-felons or some category of ex-felons who have completed their sentences. Restoration of voting rights is possible in most states, but the process is typically slow, cumbersome, and uncertain.⁶

An estimated 6.1 million felons in 2016 had temporarily or permanently lost their voting rights, up from 1.7 million in 1976, 3.34 million in 1996, and 5.85 million in 2010. The disenfranchised include 7.4 percent of adult African Americans, compared to 1.8 percent of adult whites. About 3.1 million people are disenfranchised after completing their sentences. In the swing state of Florida, which disenfranchises ex-felons, 21 percent of adult African Americans have lost their voting rights, more than enough to decide the outcome of a close local or statewide election. In February 2018, a federal district court judge struck down Florida’s subjective, laborious, and ineffective process for restoring voting rights to ex-felons one by one. Floridians will vote in November 2018 on a referendum for a constitutional amendment to restore the franchise to former felons.⁷

Nationwide, the confusing patchwork of laws on felon disenfranchisement has led some former felons to vote illegally in restrictive states because they mistakenly thought that their voting rights had been restored. Unintentional voting by former felons adds to the tally of alleged fraud, fueling demands for further restrictions on the vote. A restoration of voting rights for ex-felons alone and those on parole or probation would enfranchise 77 percent of the 6.1 million currently denied the ballot.⁸

In the 1974 case of Richardson v. Ramirez, the U.S. Supreme Court held that a law disenfranchising former felons did not violate the equal protection clause of the Fourteenth Amendment. The court found that section 2 of the Fourteenth Amendment justified the law. This section reduces a state’s representation in Congress if the state has denied the right to vote for any reason “except for participation in rebellion, or other crime.” The Court seized on this exception as a justification for felon disenfranchisement.⁹

A constitutional right to vote with no exceptions for criminal conviction would likely supersede this part of section 2. In Canada, its supreme court struck down felon disenfranchisement for violating the right to vote inscribed in the Canadian Charter of Rights and Freedoms. That court held that “the argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy [and] runs counter to the plain words of s. 3 of the Charter.” Section 3 guarantees that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly.”¹⁰

A constitutional right to vote would help but not cure the dismal participation of voters in the United States. Turnout has been lower in recent elections than at any time since the 1920s, despite rebounding in the South after enactment of the Voting Rights Act. Although the turnout gap between the South and North narrowed considerably in the 1960s, falling northern turnout sent national turnout into a downward spiral. Both presidential and congressional turnout of voting-age citizens in the North declined by about 10 percentage points from 1928 to 1964 on average as compared to the average in later years. Nationally for these two periods, presidential turnout slid from 60 to 56 percent and midterm congressional turnout from 42 to 39 percent. A constitutional guarantee of voting rights would both strike down some current restrictions and guard against future burdens on the vote.¹¹

In America’s hard-fought and closely contested presidential election of 2016, only 59 percent of voting-age citizens cast a ballot, equaling about 86 million lost votes. Donald Trump won the presidential election of 2016 with 63 million votes, just 28 percent of America’s voting-age citizens. In the 2014 midterm elections, only 38 percent of American citizens participated, equaling about 140 million lost votes. In closely contested U.S. Senate races across the nation in 2014, candidates typically won seats with votes equal to about one-fifth of the state’s citizens of voting age. Turnout is yet lower in local elections. A 2014 study by two University of Wisconsin researchers found that turnout in 144 mayoral elections across the nation averaged only 25.6 percent of the citizen voting-age population. Thus, candidates could win mayoral elections with support from just over 10 percent of their citizen voting-age constituents.¹²

Turnout is similarly bleak in primary elections that set the choices for voters in the general elections. In 2016, when both parties had spirited contests for their presidential nominations, about 28 percent of voting-age citizens participated in the Republican and Democratic presidential primaries combined. In states holding caucuses, turnout averaged merely 7 percent. Only about 8 percent of American citizens chose Hillary Clinton as the Democratic nominee and only about 6 percent chose Donald Trump as the Republican nominee. In midterm elections, primary turnout is yet lower. In 2014, just 28.4 million voters participated in the primary elections in forty-five states that had at least one contested statewide primary for both parties, equaling about 15 percent of the citizen voting-age population in those states.¹³

In 1900, the United States led the democratic world in the voting participation of its citizens. Now roles have reversed and America trails most comparable democracies in voter turnout. According to a 2017 Pew Research Center study of thirty-five nations in the Organization for Economic Cooperation and Development, the United States ranked twenty-eighth in voter turnout.¹⁴

Political gerrymandering and public cynicism about government help explain declining northern and national voter turnout, even as the Voting Rights Act of 1965 removed barriers to minority participation. The gerrymandering of legislative districts to favor one party over another at every level of government kills political competition and the incentive to vote. It lets candidates choose their voters, rather than voters choose their candidates. In the general elections of 2016, 42 percent of state representative seats went uncontested. In congressional elections, 12 percent of seats were uncontested. However, only about 10 percent of the remaining seats were competitive, with a winning margin of less than 10 percentage points. Not surprisingly, relatively few voters turned out in uncontested or lopsided elections.¹⁵

Since the early 1960s, Americans have lost faith in their government. According to data from the Pew Research Center, in 1964, 77 percent of Americans “trusted the federal government to do what is right just about always / most of the time.” By 1980, Americans’ trust in government had fallen steadily and steeply to just 28 percent. Only once and briefly in the aftermath of the September 11, 2001, attacks did trust in government rise above 50 percent. It then steadily declined again to an average of just 19 percent from 2013 to 2017. The paradox here is that a lack of faith in government deters voting, but government will better serve ordinary Americans if they vote in larger numbers.¹⁶

A consequence of nonvoting, partisan gerrymandering, and public cynicism is an American government that is especially responsive to the wealthiest citizens, a throwback to the early republic when tax and property qualifications prevailed across the nation. A study by Ellen Shearer of the Medill School of Journalism at Northwestern University found that 61 percent of 2012 voters earned $50,000 or more per year, compared to 41 percent of nonvoters. Only 12 percent of nonvoters earned more than $75,000, compared to 31 percent of voters.¹⁷

Low turnout, an economically stratified electorate, and noncompetitive elections create a political vacuum filled by special-interest groups. The upper-income bias of American turnout produces election results favorable to the wealthy and business. Organizations with money, power, and inside connections can tilt the outcomes of low-turnout contests by targeting only a relatively few voters and backing favored candidates and parties. These interests can operate in the dark as advocacy groups with no financial reporting requirements and the receipt of unlimited funds from wealthy corporations under a recent Supreme Court decision.¹⁸

Uncontested and lightly contested elections open legislators to the influence of lobbyists that proliferate in Congress, state legislatures, and local governing bodies. In 2016, more than eleven thousand registered lobbyists plied their trade in Washington, most of them representing business interests. Nineteen of the top twenty spenders on lobbying in 2017 were business associations or major corporations like AT&T and Boeing. Heading the list with a combined spending of $164 million were the U.S. Chamber of Commerce, the National Association of Realtors, and the Business Roundtable. Adding to the total of registered lobbyists were at least an equal number of unregistered “shadow lobbyists.” Although comparable data is hard to compile, much larger numbers of lobbyists are likely active in state and local governments. John Delaney, a successful businessman who won a Maryland seat in Congress, warned that “representative democracy is in crisis in the United States.… Our electoral process has created perverse incentives that have warped our democracy and empowered special interests and a vocal minority.”¹⁹

A shattering study by political science professors Martin Gilens of Princeton University and Benjamin Page of Northwestern University validated Delaney’s warning. They found that wealthy interests seeking profit, power, and control significantly shape policy outcomes in the United States. The analysts found that when controlling for the power of economic elites and organized interest groups, the influence of ordinary Americans registers at a “non-significant, near-zero level.” They found that the policy preferences of business and the rich often sharply diverge from those of ordinary citizens, and when they do, the economic elites and business interests almost always win. An expanded suffrage might not break the golden rule of politics—those who have the gold rule—but it would serve as an important corrective.²⁰

Without electoral reform, voter turnout will continue to stagnate in the United States, and a small minority of the nation’s citizens will nominate and elect the public officials who govern the nation. Changes in electoral laws and regulations are not a magic wand for raising turnout, but they do matter, as shown by the experiences of high-turnout nations. According to data compiled for 2016 by the U.S. Census Bureau’s Current Population Survey, 15 percent of respondents reported that they could not vote because they were unregistered, and another 15 percent were not asked, responded “did not know,” or refused to answer the question.

Registration reform holds the greatest promise for an expanded American turnout. Unlike the United States, most high-turnout nations employ a form of government-initiated registration known as “automatic registration.” In Sweden, for example, the National Tax Administration maintains a civil registry (including a twelve-digit personal identification number) that the Swedish Election Authority uses to compile an electoral roll of eligible voters thirty days before an election. The information is maintained electronically, with day-to-day updates by local tax offices, to ensure that the lists given to voting stations are accurate. By law, residents are required to update information with changes at their local tax office. From the list of eligible voters, the government automatically issues a voter registration card to be presented at a polling place (alternately, voters can provide some other proof of identity). Nearly every adult Swede is registered to vote, and turnout typically reaches or exceeds 80 percent of the nation’s voting-age population.²¹

The American people, with their tradition of federalism and distrust of centralized authority, would not likely embrace the Swedish model of top-down registration. The states, not the federal government, maintain civil registries, which are less comprehensive than in Sweden. Each state has an Office of Vital Records or Statistics that keeps records of birth and death certificates (and sometimes more), and individual county clerks keep marriage certificates, housing deeds, and other information. The United States lacks the sort of list that Sweden has which would enable individual states to compile a register of every single eligible voter in their state. Our country also lacks the European precedent of an independent national bureaucracy.

A more plausible means for expanding the voter rolls is government-assisted registration, which has precedent in the Motor Voter Law of 1993. Beginning with Oregon in 2015, some states have expanded the motor voter mandate. The so-called Oregon Motor Voter Act requires state officials to register automatically every nonregistered citizen who appears at a motor vehicle bureau to apply for, renew, or replace an Oregon driver’s license, nonoperator ID card, or driver’s permit. The automatic registration applies only to people eighteen years or older who are coded as citizens by the Department of Motor Vehicles. In Oregon, individuals must provide proof of citizenship or legal status to obtain a driver’s license or ID card. The state sends eligible people a mailing explaining that they will be automatically registered to vote unless they return an opt-out card, included in the mailing with prepaid postage.²²

The Oregon Motor Voter Act has worked as intended to expand both registration and turnout. A study by the Center for American Progress found that in the act’s first year and a half since its implementation in January 2016, the new system registered more than 270,000 additional voters, including 98,000 who participated in the general election of 2016. In this case, expanded registration led to expanded voter turnout. The study estimated that the law registered an additional 116,000 people “who were unlikely to have registered otherwise, and more than 40,000 of these previously disengaged people voted in the November election.” That expanded turnout equals about 2.5 percent of Oregon’s eligible voter population, which projected nationally would add some 3.5 million new presidential voters in 2016. In Oregon, voter turnout increased by 4.1 percent between 2012 and 2016, more than double the national increase of 1.6 percentage points.²³

By early 2018, eight other states and the District of Columbia had adopted some form of expanded motor voter legislation, including the Republican-controlled states of Alaska, Georgia, and West Virginia. This record indicates some support across party lines, despite vetoes of such legislation by Republican governors in Nevada and New Jersey. Legislators have introduced versions of the Oregon bill in most other states.²⁴

Some states have had in place for decades an even closer analogue to automatic registration: election day registration, which allows individuals to register when they show up to vote at the polls. Maine, Minnesota, and Wisconsin first adopted election day registration in the mid-1970s, with New Hampshire, Idaho, and Wyoming following suit in the 1990s. The turnout rates in these six states have consistently topped the national average by wide margins, with just four allegations of registration fraud from 2000 to 2011, according to a News21 survey. Most academic studies have found that election day registration boosts voter turnout, with the estimated size of the increment ranging from the low single digits to nearly 10 percentage points.²⁵ As of late 2017, fourteen states and the District of Columbia have adopted election day registration, most of them since 2010. Two other states authorize registration during their early voting period. Given the range of statistical estimates, the adoption of election day registration nationwide would likely increase turnout by anywhere from 3 to 15 million votes in presidential elections.²⁶

There are models now available for eliminating the most egregious effects of partisan gerrymandering. Other democracies avoid the gerrymandering of legislative districts through proportional representation. Voters do not opt for individual candidates in single-member districts but vote for an entire list of candidates submitted by competing parties. Each party gains seats in proportion to the vote for its lists. However, proportional representation is too radical a change in the relationship between voters and representatives for adoption in the United States. American legislators have a powerful incentive to maintain rather than drastically shift the election systems under which they have gained political power. To date, no American state has seriously considered the adoption of proportional representation.

Within the American tradition, the state of Florida, despite its history of minority vote suppression, offers an anti-gerrymandering model for the nation. In 2010, 63 percent of Florida voters backed state constitutional amendments to restrict partisan gerrymandering for Congress and the state legislature. The new rules required that “no apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent; and districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.” Districts “shall be compact; and districts shall, where feasible, utilize existing political and geographical boundaries.”²⁷ After years of resistance from Republicans in the state legislature, the courts compelled the redrawing of district lines in conformity with the amendment. Although reform could not entirely wipe out prior Republican gerrymandering, the results were striking. In 2016, the first congressional election under new lines, Florida elected ten new members of Congress, compared to forty-five in all other states. Five party seats changed hands in Florida, compared to just seven in all other states.²⁸

A nationwide Florida-style anti-gerrymandering provision, enacted by Congress for federal elections, could be effectively combined with redistricting conducted by an independent commission rather than elected officials. In 2015, the U.S. Supreme Court upheld the authority of states through initiatives adopted by the voters to take redistricting out of the hands of state legislatures and delegate this task to independent commissions. Writing for a five-justice majority, Ruth Bader Ginsburg cited “the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.” She added, “Banning lawmaking by initiative to direct a State’s method of apportioning Congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage. It would also cast doubt on numerous other election laws adopted by the initiative method of legislating.”²⁹

Some fourteen states have bipartisan or nonpartisan commissions for congressional or legislative districts, or both. The results are mixed but on balance positive. Political scientist Bruce E. Cain finds that “independent citizen commissions are the culmination of a reform effort focused heavily on limiting the conflict of interest implicit in legislative control over redistricting.” His research determines that they “have succeeded to a great degree in that goal,” but adds the qualifier that “they have not eliminated the inevitable partisan suspicions associated with political line-drawing and the associated risk of commission deadlock.”³⁰

Cain concludes that the most effective redistricting commissions have members who are relatively insulated from partisan commitments and super-majority decision-making so that the final product results from bargaining and compromise among members. The combination of such commissions, which Congress could mandate for U.S. House elections, with Florida-style anti-gerrymandering requirements would considerably reduce the baleful effects of redistricting plans that unfairly advantage one party over another.

Congress also has the power to restore the preclearance provision of the Voting Rights Act, which the Supreme Court invalidated in 2013. It could do so by adopting a new, updated formula for determining which state and localities would be covered by preclearance. The reinstatement of preclearance would block discriminatory voting and registration laws before they took effect and avoid the difficult, expensive, and tedious process of challenges under section 2 of the Voting Rights Act. Various proposals for an updated formula have been pending in Congress for several years. However, there is little chance for the necessary bipartisan support given present Republican opposition to any revival of the preclearance provision.

America’s antiquated systems for state and local control over the conduct of elections needs updating with national requirements binding on all federal elections. A paper trail on all voting machines would help secure the integrity of the vote, which is now threatened by foreign interference. This reform tallies votes concretely on paper as a check against possible technological errors or the hacking of electronic results. A revised Help America Vote Act should set minimum standards for ballot design and election technology. It should include renewed federal funding for technological upgrades and the training of election officials and poll workers. The nation needs a blue-ribbon national commission, not on phony voter fraud but on safeguarding our voting technology from hacking and other malicious interference.

The United States has continued its eighteenth-century procedure for the indirect election of presidents through the Electoral College. In 2016, for the second time in sixteen years, the Electoral College produced a president who lost the popular vote. Prior to 2000, the popular and electoral votes had not diverged since 1888. Campaigns now focus on about ten to fifteen so-called swing states, ignoring, among others, four of the nation’s five most populous states: California, Texas, New York, and Illinois. Despite public support, there is little chance for a constitutional amendment for the popular election of presidents. The small states, which are now guaranteed at least three electoral votes each, hold a veto over any prospects for a two-thirds vote in the Senate for an amendment and a three-quarters vote of the states for ratification.

Republicans are unlikely to join an effort to abolish the Electoral College. In both 2000 and 2016, Republican presidential candidates lost the popular vote but won the electoral vote tally. The reason is that in recent elections, Democrats have gained a rising majority of millions of popular votes in just two states, New York and California. Democratic presidential candidates led Republicans in these states by 4 million popular votes in 2000 and 6 million in 2016. For the Electoral College, these are wasted votes, because even a victory by Democratic presidential candidates in these states by just a few votes would still secure their electoral votes. There are no comparable Republican-leaning states that yield the Republicans even roughly comparable popular vote margins. The closest analogue is Texas, which Donald Trump won by 807,000 votes in 2016.

Two states, Maine and Nebraska, allocate electoral votes according to a mixed system that harkens back to the early republic. These states allocate one electoral vote to the winner of each congressional district and two votes to the statewide victor. If adopted nationwide, this system would infect presidential elections with the political gerrymandering of congressional districts, widening the gap between the popular and Electoral College votes. In 2012, for example, Republican candidate Mitt Romney would have won most of Pennsylvania’s electoral votes even though he lost the popular vote to Barack Obama by 5.4 percent. Nationwide, Romney would have garnered an Electoral College majority and won the presidency, despite trailing Obama by 5 million votes and 4 percentage points in the popular tally.³¹

The United States also differs from most other democracies in holding national elections during the week on a regular work day. The great majority of nations across the world hold elections on either a weekend or a declared national holiday. There is a lack of compelling evidence that making election day a holiday in the United States would appreciably increase turnout, but it would make voting fun again and not just a civic exercise. Why not serve refreshments (nonalcoholic), bring on bands and songs, and have a celebration of voting at the polling place? Such incentives are certainly worth a try.

The combination of several practical reforms—eliminating felon disenfranchisement (even just for former felons), expanded motor voter registration, election day registration, and a combined anti-gerrymandering rule and independent redistricting commissions—would transform voting and politics in the United States. The first three reforms would likely increase presidential turnout by at least 10 percent, adding about 14 million or more new voters in presidential elections.

Gerrymandering reform would make elections more fair and competitive and likely boost turnout as well. An election day holiday might not appreciably increase turnout but would help restore the joy and communal spirit to elections. A new formula for preclearance would help assure that state and local governments did not discriminate against minorities in their voting laws and practices. An upgrading of ballot safeguards and effective technology would facilitate voting and guard against the hacking of electoral systems.

So far, electoral reform has plodded along in America, state by state, through a scattershot process that widens the divide in access to the vote between red and blue states. Yet the national government has authority to legislatively enact these reforms for federal elections under the Constitution’s elections clause, which authorizes Congress to “make or alter” the “times, places, or manner” of federal elections. The federal government has significantly exercised this authority since 1842 when it required the states to elect members of the House of Representatives from districts, each of which could elect only a single member of Congress. The Congress has since repealed, readopted, and repealed again this requirement. In 1845, Congress again overrode the autonomy of states and mandated a national election day for presidential electors on the first Tuesday after the second Monday in November. It expanded this requirement to Senate elections in 1866 and House elections in 1872. In 1967, Congress mandated that states must hold elections for the U.S. House of Representatives in single-member districts.³²

The National Voter Registration Act in 1993 launched the most ambitious federal effort to regulate registration and voting. Several circuit courts rejected constitutional challenges to the law, and in 1996 the Supreme Court declined to take up the matter. A year later, in unrelated litigation on conflicts between federal election law and Louisiana’s “open primary,” the U.S. Supreme Court held as “settled doctrine” that the “Election Clause grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.”³³

Yet another reform at the state level could substantially increase voter turnout in local elections, over which only the states, not the federal government, have jurisdiction. This state-by-state reform would shift all local elections to the national election day in midterm and presidential years. Local primary elections would also have to fall in line with congressional and presidential primaries. The study by Zoltan L. Hajnal and Paul G. Lewis found that the turnout effects of holding city elections on election day in presidential and midterm years rather than off-cycle are substantial: “Presidential elections are associated with turnouts of registered voters in city elections that are 36% higher than off-cycle elections; midterm Congressional elections and presidential primaries are associated with municipal turnouts of 26% and 25% more registered voters, respectively.”³⁴

An obstacle to reform is gaining support from Republicans, many of whom believe that low turnout, especially among minorities, benefits their party. In 1980, during the campaign to elect Ronald Reagan, prominent Republican strategist Paul Weyrich, a founder of the contemporary conservative movement, criticized what he called the “goo-goo syndrome—good government. They want everybody to vote.” He said, “I don’t want everybody to vote. Elections are not won by a majority of people.… As a matter of fact our leverage in the elections quite candidly goes up as the voting populace goes down.”³⁵

More recently Republicans have said restrictions on voting such as photo identification laws help their party win elections by diminishing the opposition vote. In 2012, the Republican Pennsylvania state house majority leader, Mike Turzai, said, “Voter ID, which is going to allow Governor Romney to win the state of Pennsylvania, done.” In 2013, while commenting on Virginia’s voter ID law and long lines at the polls, Scott Tranter of the Republican consulting firm Optimus (which specializes in election analysis) commented, “A lot of us are campaign professionals and we want to do everything we can to help our sides. Sometimes we think that’s voter ID, sometimes we think that’s longer lines, whatever it may be.” Also in 2013, Don Yelton, a Republican precinct chair in North Carolina, said that voter ID laws were acceptable to him if it kept “lazy blacks” from voting. “The law is going to kick the Democrats in the butt,” he added. His comments were so blatantly racist that Yelton had to resign his position. Ken Emanuelson, a Republican Tea Party leader in Texas, was holding a 2013 meeting of Battlefield Dallas County, a group dedicated to turning out Republican voters, when a black pastor asked him, “What are the Republicans doing to get black people to vote?” Emanuelson responded, “Well, I’m going to be real honest with you. The Republican Party doesn’t want black people to vote if they’re going to vote nine to one for Democrats.”³⁶

In 2016, Republican representative Glenn Grothman of Wisconsin, a backer of the state’s photo ID law, said, “I think Hillary Clinton is about the weakest candidate the Democrats have ever put up. And now we have photo ID, and I think photo ID is going to make a little bit of a difference as well.” Also in Wisconsin, then-Republican state senate staffer Rodd Allbaugh testified under oath in court that at a closed door meeting, several Republican members of the state legislature were “giddy” and “politically frothing at the mouth” in anticipation of a voter ID law that would make it more difficult for likely Democratic supporters to vote. Although Allbaugh was a lifelong Republican, he said that the experience led him to leave the party.³⁷

Not every Republican leader shares these sentiments. Some believe that as the electorate becomes less white, Republicans should focus on winning over minority voters rather than on tamping down turnout. According to national exit polls, from 1980 to 2016, the non-Hispanic white share of the presidential electorate fell from 88 to 71 percent and will surely continue to tumble in future elections. Republican senator Rand Paul of Kentucky, one of the party’s most prominent conservative leaders, warned Texas Republicans that its hostility to minorities is counterproductive and that they will eventually lose their grip on Texas, with its growing minority population, unless they change their approach. Senator Paul, who grew up in Texas and whose father, Ron Paul, was a long-serving member of the Texas congressional delegation and a candidate for the Republican presidential nomination, said in February 2014, “What I do believe is Texas is going to be a Democrat state within 10 years if we don’t change. That means we evolve, it doesn’t mean we give up on what we believe in, but it means we have to be a welcoming party.”³⁸

Long-serving Wisconsin Republican senator Dale Schultz chided his party “for pouring all of its energy into election mechanics. We should be pitching as political parties our ideas for improving things in the future rather than mucking around in the mechanics and making it more confrontational at the voting sites and trying to suppress the vote.” Veteran Republican representative James Sensenbrenner of Wisconsin sponsored legislation to restore the preclearance provision of the Voting Rights Act under a revised formula. He said in a 2016 New York Times op-ed, “Ensuring that every eligible voter can cast a ballot without fear, deterrence and prejudice is a basic American right. I would rather lose my job than suppress votes to keep it.”³⁹

Electoral reforms to make registration and voting easier and to protect voting machines from malicious hacking and errors has widespread public support. The 2016 Survey of the Performance of American Elections, a robust survey of 10,200 registered voters nationwide, found that 63 percent of respondents strongly or somewhat supported automatically registering all citizens over age eighteen to vote, 57 percent supported election day registration, 65 percent supported making election day a national holiday, and 85 percent supported a paper trail for electronic voting machines. Another poll by the independent media and research group Government Technology conducted in December 2016 found that “eight in 10 voters and nearly 90 percent of poll workers believe upgrades to the nation’s voting technology will strengthen and build trust in elections.”⁴⁰

Low turnout and distrust of government in the United States is no less a cultural than a legal and constitutional issue. Yet changes in law can change hearts and minds. It was only after enactment of the Civil Rights Act of 1964 that, for the first time, white southerners came to reject segregation of the races. Prior to the 1967 Supreme Court decision striking down laws against interracial marriage, nearly 60 percent of Americans supported such regulations. Three years after the decision, poll responses had reversed. Recent polls now show 90 percent opposition to prohibiting interracial marriage by law.

Reform of American suffrage may be simpler than comedian Mo Rocca has suggested in the quotation that begins this chapter.⁴¹ The only cure for an ailing democracy is more participation in voting and representation by ordinary Americans. Even if amendments to guarantee the right to vote and popularly elect the president remain beyond practical reach, well-tested, commonsense reforms, most of them within the authority of Congress, would recharge the dimmed beacon of American democracy, bringing governance closer to the will of the people. But reform will take place only if the American people demand change forcefully enough and do not just opt out of political engagement. “Let us never forget that government is ourselves,” said Franklin Roosevelt, “and not an alien power over us. The ultimate rulers of our democracy are not a President and Senators and Congressmen and Government officials, but the voters of this country.”⁴²