A Letter on Election Reform, Voter Suppression, and Stacey Abrams
Fewer and fewer Americans have faith in our election system, and, as a new ABC News/Ipsos poll finds, the declining trust cuts across party lines. So there are the 75 percent of Republicans who refuse to accept President Biden’s victory, but there are also the 50 percent of Democrats who believe that Russian hackers altered the vote totals in 2016. Ironically, this distrust exists at time when, as Georgia’s Secretary of State, Brad Raffensperger, writes in National Affairs, “Our elections are both fairer and more secure than they have been at any point in our history. Voter participation rates are high, and evidence of widespread fraud is exceedingly rare.”
Raffensperger is right. Democrats and Republicans are hyping problems—voting accessibility and voter fraud, respectively—which hardly exist. But while I believe the lack of faith in our election system is misplaced, the loss of public trust poses a giant problem. We need election reform.
On this topic, my views have changed over the years. In the past, I opposed some efforts to make voting easier. I agreed with Kevin Williamson, who recently wrote in National Review, “When it comes to putting burdens on voters. So, what? We expect people, including the poor, to pay their taxes? If voting really is the sacred duty we’re always being told it is, shouldn’t we treat it at least as seriously as filing a 1040EZ?”
Among the policies I once opposed was early voting. On this matter, I agreed with The Commission on Federal Election Reform, which Congress created after the 2000 election debacle to analyze potential reforms. But now I support early voting laws, and I’ve taken full advantage of them over the last few years.
I’ve also changed my tune about making Election Day into a national holiday. Taking a page out of the Commission’s report, I think we should schedule Veterans Day to take place on the first Tuesday of November. Associating Election Day with Veterans Day would not only make it easier for many Americans to vote, it would also have practical benefits for election administration, since more public buildings will be available for use as polling places and more people will be available to volunteer.
Then there is the discussion about voter suppression and whether it still takes place in America. Influenced by Ari Berman’s Give Us the Ballot: The Modern Struggle for Voting Rights in America, my opinion on the Supreme Court decision in Shelby County v. Holder has changed, and I now support the John Lewis Voting Rights Act (S.4), which would once again require that states with a history of racially discriminatory voting practices obtain “pre-clearance” from the Department of Justice or a federal court before making changes to their election code.
While I believe voter suppression still happens, I also believe we are living in 2022, not 1962. Take Mississippi as an example. Where in 1965 only a paltry seven percent of Blacks in Mississippi were registered to vote, today 83 percent of Blacks are registered to vote. In fact, according to the Kaiser Family Foundation voter database, Black registration has surpassed white registration in Arizona, Maryland, Mississippi, and Tennessee, and the numbers are nearly even in Florida, Kansas, Kentucky, Louisiana, North Carolina, Pennsylvania, and Texas. In 2020, Blacks voted at higher rates than whites in Missouri, Mississippi, and Tennessee. Times have changed, and to suggest that voting reforms being debated today are somehow worse than Jim Crow, a time of apartheid and state sponsored violence perpetrated against Blacks, is untrue. Which gets me to Joe Biden and a key theme of this letter.
I voted for Joe Biden. I volunteered for Joe Biden. I donated to Joe Biden. I did these things because he spoke about bringing America together. As President Biden said in his inaugural address, “Politics need not be a raging fire destroying everything in its path. Every disagreement doesn’t have to be a cause for total war.” But by claiming that Georgia’s Election Integrity Act of 2021 (SB.202) is “Jim Crow on steroids” and by casting those who oppose the Freedom To Vote Act (S.2747) as evil forces of totalitarianism, Biden is pouring gasoline on an open flame. In a speech on January 11 about election reform, Biden asked, “Will we choose democracy over autocracy? Light over shadows?…I know where I stand.…I will defend our democracy against all enemies— foreign and, yes, domestic.”
Wait a second?!? Americans who oppose the FTVA are enemies of the country? As Sarah Isgur, a staff writer at The Dispatch, points out, “Members of Biden’s own party oppose these laws. Mitt Romney, who was first senator in U.S. history to twice convict a president of his own party in an impeachment trial, opposes this legislation. Maybe it’s not a lack of courage? Maybe people just disagree with the policy?”
Many states, including Georgia, made changes to voting procedures in 2020 because of COVID-19, and it is perfectly legitimate for states and localities to debate about which pandemic-related easing of voting methods should be made permanent. So while the Brennan Center for Justice has a much publicized tally of all the state legislation that “would restrict access to the ballot,” this list of “voter suppression restrictions” includes Iowa, which is scaling back early voting from 29 days to 20 days. Is the Iowa change really an example of voter suppression? And with regard to Georgia’s early voting policies, states that have fewer early voting days include Alaska, Delaware, Washington, D.C., Maryland, Massachusetts, New Jersey, New York, and Rhode Island. Are the aforementioned states implementing Jim Crow as well?
In speaking about the Georgia law, Joe Biden complained that it prohibits outside groups or people from distributing anything, including food or water, within 150 feet of a polling place. “That’s not America,” the president declared. But it turns out that several states forbid electioneering. California, Colorado, Nevada, New Jersey, and Oregon prohibit it at 100 feet, while Connecticut does so at 75 feet, and Delaware does so at 50 feet. So Georgia has a little longer distance than other states. Is that really Jim Crow?
President Biden also complained about how the new Georgia law prohibits private groups from mailing unsolicited absentee-ballot applications. So in 2020, under emergency rules, some organizations mailed such applications, and, as a result, some election officials received multiple applications from the same voters. It seems reasonable for lawmakers to want to end the confusion. Is it racist to want voters to request an absentee-voting application themselves? Is it racist to oppose mailing them to every voter? Consider the law in New York. While Georgia allows anyone to vote by mail, New Yorkers can’t vote absentee unless they are out of town on Election Day, ill, disabled, taking care of someone who is ill or disabled, in a Veterans Health Administration hospital, or in jail for a non-felony offense. Last fall, New Yorkers voted down a constitutional amendment to liberalize these laws. Why isn’t Biden condemning New York as a threat to American democracy?
While I think some are overhyping the issue of voter suppression, Republicans are wrong to argue that election policy should be left entirely up to the states. I say this as a fan of federalism and as someone who believes that the diversity of our election system is a feature, not a bug. While I believe we should preserve sufficient flexibility for states to tailor election practices to their individual circumstances, when Republicans argue that “elections are not a federal issue,” they ignore the 15th Amendment and the Voting Rights Act of 1964. I disagree with these Republicans. Congress needs to pass election reform on a national level.
A recent Washington Post editorial claimed, “Every American, Democrat or Republican, should favor reforms that promote voter participation.” I argue that the Post has half the equation. Yes, we should promote voter participation but not to the point that it reduces trust in elections themselves. After all, if we really wanted to make voting accessible, we would let everyone vote on their phones and we wouldn’t require people to fill out paperwork when registering to vote; if we truly wanted to promote voter participation, we would have polls open for an entire year.
Some argue that any discussion about “election integrity” and “preventing fraud” is code for voter suppression. But it shouldn’t be controversial to want laws and policies that create confidence in our electoral institutions. As the Supreme Court held in Anderson v. Celebrezze, “Evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious. Indeed, they are essential.”
Consider voter ID laws. In Crawford v. Marion County Election Board, the liberal icon, Justice John Paul Stevens, authored a 6-3 opinion upholding Indiana’s voter ID law. Stevens wrote, “There is no evidence of extensive fraud in U.S. elections, but it could occur and it could affect the outcome of a close election. The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.” Stevens staked out this position while also acknowledging that a photo identification requirement imposes some burdens on voters. He wrote, “A voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about [its] constitutionality. The availability of the right to cast a provisional ballot provides an adequate remedy for [such] problems.”
Opponents of voter ID laws argue that a small percentage of adults do not possess a photo identification and that these individuals are disproportionately poor and urban. Opponents also argue that such laws can be used to intimidate voters or turn them way in a racially discriminatory fashion. But not only is it condescending to suggest that minorities are somehow not as capable of non-minorities to get a photo ID, the data is clear: voter ID laws don’t depress voter registration or voter turnout. This evidence comes from a study published in the Quarterly Journal of Economics, which happens to be the most comprehensive study ever published on the effects of voter ID restrictions. The authors conclude that such laws have no negative effect on registration or turnout for any group defined by race, gender, age, or party affiliation. Other research shows that minority voter turnout actually increased after voter ID laws were passed.
Personally, I support voter ID laws so long as citizens are able to use many different types of IDs and that it is easy and free to obtain these IDs, so I support the FTVA’s requirement that states with voter validation requirements permit the use of any document issued to the voter and containing the voter’s name.
In the same way debates over voter ID laws are legitimate, it is reasonable for state and local governments to maintain accurate voter lists, even if some argue that doing so represents a form of voter suppression. The Commission on Federal Election Reform argued that “significantly inaccurate voter lists undermine public confidence in the integrity of the election system.” While I have no problem with purging of voter lists, the FTVA requires states to provide purged voters with notice and an opportunity to show their eligibility. The FTVA also prohibits states from deleting voters based on the voter’s failure to vote in a prior election or failure to respond to election mail. This seems like good policy to me. So far, I’m on board with the FTVA.
Then we arrive at the issue of automatic voter registration. According to the Brennan Center for Justice, twenty states and Washington, D.C. have approved the policy such that eligible citizens who interact with government agencies are registered to vote unless they affirmatively decline. Here again, I have no objection if a state wants to implement such policies, but should Congress mandate automatic voter registration on a national level? After all, the Commission on Federal Election Reform spoke out against automatic voter registration, arguing that “no one should be automatically registered without being asked if they want to do so.” In short, debating a national mandate of automatic voter registration is very different than debating Jim Crow. The same can be said about a national mandate that all states implement day voter registration. Here again, we need to be careful with our rhetoric.
I’m not going to discuss every component of the FTVA, but I do like how it tries to reduce the level of gerrymandering in America and how it requires that states provide sufficient resources to ensure equitable wait times at polling places. I also agree with how the FTVA requires states to use voting machines manufactured in the United States and how it limits the ability of statewide election officials to suspend or remove local election administrators.
While I’m supportive of some aspects of the FTVA and understanding of others, I’m opposed to a national mandate that all states allow ballot harvesting. In states where this practice is legal, volunteers and campaign workers can go directly to the homes of voters, collect ballots, and drop them off en masse at polling places or election offices. If states want to implement such a practice, by all means. But there are legitimate reasons to be skeptical of such policies. Without restrictions on who can return a ballot on someone else's behalf, a third party could take advantage of the system by tampering with or discarding the ballots. It’s a practice that could devolve into allowing activists to pressure voters into casting ballots for a preferred candidate. Among the 31 states where a voter can authorize someone to return a ballot on their behalf, thirteen states place some limits on how an authorized person can handle and return ballots. These limits are legitimate. I also oppose how the FTVA requires each jurisdiction have ballot drop boxes. Again, if some places want to have drop boxes, more power to them. But I understand if jurisdictions feel uncomfortable with how drop boxes can be tampered with. To oppose a national mandate on these two topics doesn’t make someone a racist or, in Biden’s words, someone who is “choosing autocracy over democracy.”
When it comes to election reforms, so much of the focus has been on making it easier to vote— the focus is on ballot casting. But the real danger to our democracy stems from changes to ballot counting. Given that, according to the Washington Post, at least 163 Republicans who embrace the election lie are running for statewide positions with authority over elections, we need to protect the vote certification process from partisan meddling. That is why, as Yuval Levin suggests in the pages of the New York Times, Democrats and Republicans should work together on legislation focused on what happens after elections. Levin argues that we need to limit the ability of state officials to remove local election administrators without cause and establish clear guidelines for post-election audits. Most importantly, we need to clarify the Electoral Count Act of 1887, so it is clear that the Vice President has no actual power to accept or reject electoral votes.
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I started this letter with a quote from Brad Raffensberger, and I'm going to end by returning to Georgia’s secretary of state. Brad rejected the Big Lie and stood up to Donald Trump, but 2020 wasn’t the first time this principled politician pushed back against someone refusing to accept election results in Georgia. It happened in 2018, when Stacey Abrams faced off against Brian Kemp. Even today, Abrams still hasn’t conceded the gubernatorial race despite losing by 54,723 votes. (Trump lost Georgia in 2020 by 11,779 votes.) Raffensberger writes that, while Trump’s actions were of a different scale and much more dangerous, Abrams had an “obligation to avoid slandering our electoral system.” Although Abrams’s claim of a stolen election did not lead to violence, it continues to be believed even by people who claim to be concerned about the integrity of our democracy. Aaron Blake, a Washington Post reporter, observed that Democrats were “alleging illegal activity that hadn't been proven” and such an accusations couldn't help but “undermine confidence in American elections.”
Similar to Donald Trump, Stacey Abrams leveled accusations of voting-machine irregularities. Her legal team argued that the machines could be programmed to switch votes from one candidate to the other. The proof included a total of two allegations in an election in which nearly 4 million votes were cast. Her legal team also argued that malicious actors might have hacked into polling machines and switched votes. Without citing specific examples of machines being hacked or votes being altered, the lawyers maintained the unfounded allegation that Georgia had “inaccurate voting machines” in federal court and has stated, without evidence, that the machines “lost 100,000 votes.”
Abrams also alleged that voter “purges" took place. But, as Raffensberger points out, if a million voters had been improperly removed from the rolls, there would have been widespread outcry among the voters themselves. That didn’t happen. One reporter knocked on the doors of 30 individuals scheduled for removal from the voter rolls to investigate the voter-purge claim. At those locations, he found deceased voters, abandoned homes, and empty lots.
Abrams says she “ran against one of the worst purveyors of voter suppression and xenophobia since George Wallace.” This claim is interesting given that in Georgia Black voter registration and turnout rates surpassed those of whites.
By pointing to Stacey Abrams and her refusal to accept defeat in the 2018 race, I’m not diminishing Trump’s actions or sidestepping the severity of the 2020 election crisis by engaging in “what-about-the-other-side-ism.” I’m merely pointing out that both Republicans and Democrats can respond to painful election defeats by attacking the legitimacy of our election system. So in writing this letter, I’m not arguing in support of the new Georgia election law. Nor am I arguing in favor of any voting restrictions passed in states across America. I’m simply calling for us to watch our rhetoric and only call out racism when we actually see racism.