How We Vote

Innovation in American Elections

Kathleen Hale, Mitchell Brown

• Publisher: Georgetown University Press
• Year: 2020
• ISBN:
  9781626167803
• Topic: Economics
• Subtopic: Economic Policy
• Index: Economics

The idea of voting is simple, but the administration of elections in ways that ensure access and integrity is complex.

In How We Vote, Kathleen Hale and Mitchell Brown explore what is at the heart of our democracy: how elections are run. Election administration determines how ballots are cast and counted, and how jurisdictions try to innovate while also protecting the security of the voting process, as well as how election officials work.

Election officials must work in a difficult intergovernmental environment of constant change and intense partisanship. Voting practices and funding vary from state to state, and multiple government agencies, the judicial system, voting equipment vendors, nonprofit groups, and citizen activists also influence practices and limit change. Despite real challenges and pessimistic media assessments, Hale and Brown demonstrate that election officials are largely successful in their work to facilitate, protect, and evolve the voting process.

Using original data gathered from state and local election officials and policymakers across the United States, Hale and Brown analyze innovations in voter registration, voting options, voter convenience, support for voting in languages other than English, the integrity of the voting process, and voting system technology. The result is a fascinating picture of how we vote now and will vote in the future.

1

The Federal System and Politics: How the US Intergovernmental Architecture Shapes the Ways We Vote

The 2016 US presidential election mobilized 142 million registered voters, thousands of election jurisdictions, tens of thousands of polling places, hundreds of thousands of voting machines, and millions of poll workers. Nearly 40 million people voted at a polling place on Election Day, using one of more than 500,000 electronic voting machines of various types. Across the country, nearly 300,000 machines scanned paper ballots, and more than 200,000 machines presented ballots on a touch screen for voters to make their selections. Roughly 100 million people cast their ballots early or by mail. Voters were citizens of all races, colors, and genders. They were citizens by birth, or had become naturalized after migrating from around the world. Some had experienced periods of incarceration, some could speak English, and some could not.

Contrast this with the elections held two hundred years ago. In 1816, the eighth presidential election was held over thirty-four days, from Friday, November 1, through Wednesday, December 4. James Monroe, a Democratic Republican, was declared the winner with 183 electoral votes, over Rufus King, a Federalist, who had 34 electoral votes. The popular vote was not yet tracked uniformly across states as a method of choosing presidential electors; however, the estimate is that roughly 80,000 ballots were cast. Voters in nineteen states around the country used paper ballots that they created themselves, or voted viva voce, declaring their candidate preferences out loud and in public.¹ No government election office created ballots or provided equipment. Votes were neither from women nor people of color. Across the states, various requirements were imposed on white men in order to exercise the franchise, including land ownership, residence, and religious allegiance, among others.

Fast forward one hundred years to the presidential election of 1916. A popular vote total of slightly more than 18.5 million was reported, and Woodrow Wilson, a Democrat, won with 277 electoral votes over Charles Hughes, Republican, who had 254 electoral votes. Punch card machines and mechanical lever machines were used in many locations; the first of these had been introduced just before the turn of the century. By 1896, thirty-nine of the forty-five states used secret ballots printed by local governments, reflecting the adoption of the Australian ballot format. The proportion of the population going to the polls had also increased, as the rules for ballot access had also changed over time. The ratification of the Fifteenth Amendment to the Constitution in 1870 permitted males to vote without regard to race, color, or previous condition of servitude; in practice, many states effectively excluded nonwhites from voting for nearly the next 100 years. In 1916, women were partially enfranchised; some women could vote in some elections, and these rights were most expansive in states that began as Western territories (e.g., Colorado, Utah, Washington, and Wyoming), although the Nineteenth Amendment was not yet a reality (Keyssar 2000).

More than a hundred years later, elections have changed even more. The franchise has expanded to include most all citizens age eighteen years and older. Voting today involves complex electronic equipment for registering to vote, for casting and counting ballots, and for transmitting results. Ballots are cast by various methods, including by mail, on days before Election Day and on Election Day, and in traditional polling places or vote centers. Voters register in person at election offices, at a host of other venues, or online.

What began as a somewhat simplistic and individualized event using pebbles, voices, or raised hands has evolved into a significant administrative apparatus. Election administration today means designing and implementing new methods of voter registration and casting ballots and using new techniques to monitor results and ensure transparency. Election officials implement new methods of voting, address cybersecurity concerns, and make it possible to vote in languages other than English. They verify voter eligibility and resolve issues raised by incomplete or contestable identification. Across all these operations, election administrators seek indicators of election success that demonstrate operational accuracy, security, and transparency—regardless of how many voters decide to vote and in which manner.

Approaches to implementing election administration activities are shaped by the American federal system and the intergovernmental environment; they are also prompted and accompanied by shifts in political winds, changes in voter perceptions and needs, and resource levels. Universally, technological change is a cross-cutting force. Local election offices carry the weight of election operations and related administration. State election offices have gained authority in recent decades, as major policy decisions about methods of conducting elections are made by state legislators. The role of federal agencies in elections is largely advisory; significant regulatory authority rests only with the US Department of Justice (DOJ) to enforce the federal requirements for voter access and participation. Federal courts serve as a backstop on equal protection issues but have not overturned many recent state political decisions that define election practices. Among these are the requirements for various methods of identification, including government-issued photo identification, the requirement for additional proof of citizenship in voter registration, and hyperpartisan state redistricting configurations (i.e., partisan gerrymandering) that effectively limit the influence of voters in one political party or the other.

In the American intergovernmental system, the administrative dynamics are characteristically interactive and collaborative, and reflect significant interactions with the private sector and with government offices that are not devoted to election operations. Many organizational relationships are voluntary, and through these, election officials can seek resources and technical support. Local election officials have considerable latitude to experiment to address local conditions, although they often lack resources and may, in some cases, lack policy authority.

To set the stage for understanding innovation, this chapter introduces the institutional context of election administration, including considerations of the federal system, intergovernmental relationships, and major political developments. Innovation in public service occurs within a changing environment that reflects shifts in politics, organizational arrangements, rules, technology, and public opinion.

ELECTIONS AND THE AMERICAN FEDERAL SYSTEM

The American election administration environment is perhaps the most intractably complex policy environment in which public managers operate. This complexity stems from the constitutional imperatives that invest authority for aspects of elections in both the national government and the states. It also stems from the evolution of election administration as a matter that has been left to local governments for much of the country’s history. Moreover, not least because elections are the way we measure democracy and are a key element of the American political system, the institutional architecture of election administration also reflects the geography of American politics.

The federal system of American election administration is embedded in the country’s origins. The American federal system matters particularly in the case of election administration because of the constitutional imperatives that establish institutions at the national level and in the states. Political institutions, in turn, define the boundaries of political participation. The American history of participation is deeply rooted in race and citizenship in at least three dimensions. First, our governing documents at both the national and state levels define who can participate and in what ways. The franchise has always been a limited concept; and though it has expanded over time, its expansion has been episodic and fraught with controversy within states and between the states and the national government about who should be eligible to vote, and who has the authority to make this decision.

Second, our national and state institutions prescribe what we need to do in order to participate. In the past, for example, some of us were asked to pay a poll tax or pass a test, each made illegal by a variety of court decisions and the Voting Rights Act of 1965. Since the 2000 election, more and more of us are being required to possess particular forms of identification, including government-issued photo identification and proof of citizenship.

Third, our institutions have typically tied our participation to where we live. Historically, voting based on geography has allowed patterns of exclusion and inclusion to be reinforced within political institutions. This can mean that votes cast in some places matter more than those cast in others. This can also mean that methods making it more convenient to vote may or may not be available, depending on geography.

These same governing documents also prescribe which levels of government can make decisions about participation. Election administration evolved from local practices that became codified at the state level over time. The national judiciary has allowed state practices to hold sway for long periods, as the chronology given in table 1.1 illustrates. Federal action has occurred only rarely, although in rather sweeping ways. These federal actions have also been answered by new challenges from the states. Across time, the pendulum of federal intervention has swung between deference to states’ political cultures—which tended to restrict the franchise, first to white male citizens and over time to all citizens—and waves of national social, political, and cultural change accompanied by shifts in public opinion and legislation in support of efforts to act on a national sense of equality and equity.

The original construction of the franchise promoted states’ independence in determining voter qualifications; by and large, those entitled to vote were white, male landowners, and in some states they were also members of particular churches not associated with immigrant groups. State practices strained the Union to the point of secession and were answered, after the Civil War, with constitutional amendments that abolished slavery, established a measure of equal protection and due process for citizens, and established the franchise for black men regardless of race, color, or former slave status (previous conditions of servitude). National civil rights legislation was passed in the 1870s, but states continued to develop institutional practices that denied these rights to racial and ethnic minorities, and these rights were eventually limited to protections only from national action.

TABLE 1.1 Major National Political Events Shaping the Modern Election Administration Environment

Year	Event
1791	Tenth Amendment reserved powers to states and the people
1819	National government has broad national powers over states (McCulloch v. Maryland)
1857	State slavery policies cannot be overturned by national government (Scott v. Sanford)
1861	Southern states formed Confederacy
1865	Slavery is abolished (Thirteenth Amendment)
1866	First federal civil rights bill is vetoed
1868	Federal civil rights are established for US citizens, including equal protection and due process (Fourteenth Amendment)
1870	States cannot use race, color, or slave status in qualifying voters (Fifteenth Amendment)
1875	Civil Rights Act protects against private discrimination
1883	Civil Rights Act of 1875 is invalidated (the Civil Rights Cases)
1896	Racial segregation upheld as “separate but equal” (Plessy v. Ferguson)
1913	US senators must be directly elected by popular vote (Seventeenth Amendment)
1920	Women now able to vote in all elections (Nineteenth Amendment)
1944	White-only primaries are declared illegal (Smith v. Allright)
1954	Segregated public schools are inherently unequal (Brown v. Board of Education)
1957	Civil Rights Act of 1957 created Civil Rights Commission
1962	Equal protection standards for state apportionment are established (Baker v. Carr)
1964	Poll taxes prohibited as qualification for federal elections (Twenty-Fourth Amendment); “one person, one vote” (Reynolds v. Sims); Civil Rights Act of 1964 prohibited discrimination based on race, color, religion, or national origin
1965	Voting Rights Act (VRA) of 1965 prohibited discrimination in registration and election practices, created federal oversight for specific jurisdictions
1966	Voting Rights Act upheld (South Carolina v. Katzenbach)
1970	Literacy and good character tests banned by VRA authorization, federal oversight continued
1971	Minimum voting age established as 18 for all elections (Twenty-Sixth Amendment)
1975	Minority language assistance required and federal oversight continued under VRA reauthorizations
1980	Intent to discriminate required to demonstrate VRA violation (Mobile v. Bolden)
1982	VRA reauthorization requires voting assistance for voters with disabilities, continued federal oversight and overrules Mobile v. Bolden
1984	Access to polling places for voters age 60 and over and voters with disabilities required under the Voting Accessibility for the Elderly and Handicapped Act
1986	States required to accept absentee registration and voting for military and overseas citizens established by the Uniformed and Overseas Citizens Absentee Voting Act of 1986
1993	Racial gerrymandering...