Every four years, states and territories begin their own preparations for the presidential election, with their own procedures and their own staffs. Amid two years of formal announcement speeches, bus tours, debates, town halls, baby kissing, rallies, canvass kick-offs, and “get out the vote” events, more than 50 different election apparatuses kick into gear.
During the primaries, voting can be run by the secretary of state, individual county election commissions within a state, or even state Democratic or Republican parties, if they’re hosting a caucus. The work is often dependent on volunteers to operate the polls, organizers to run election monitoring and assistance, election officials to tally results, and enough trust in the system for voters to participate.
Voting in the United States, viewed holistically, looks like an orchestra, composed of thousands of musicians, with different skill sets, different sheet music, different music stands, and limited direction from any one conductor.
“Whenever you talk to someone from another country and try to explain how our elections work ... they’re just kind of baffled,” said Dale Ho, director of the Voting Rights Project at the ACLU, on Slate’s Amicus podcast with Dahlia Lithwick. “They look at us like, how can this possibly be?”
Despite this, most elections manage to produce a harmonious symphony—but not all of them. States are still running elections, ideally with their communities in mind, but election officials have limited resources that often don’t prioritize communicating with voters on procedures. And those procedures have been complicated by a new wave of laws, ostensibly meant to increase voter security but usually motivated by discriminatory objectives to suppress the right to vote.
The United States’ decentralized election system means that these changes are implemented slowly, state by state or locality by locality. However, the coronavirus has added a new sense of urgency for change, as the pandemic poses a threat to usual in-person voting. The coronavirus is forcing rapid changes to the system in a very short amount of time. And just as in any orchestra, one musician playing the wrong notes can taint the quality of the whole symphony.
There are advantages to the American decentralized system. To interfere with national election results would mean hacking into thousands of election databases and facilities across the country, systems with widely different balloting: some on paper and some on screens, some read through a scanner and some tabulated manually, some sent in by mail and some cast in person. The Electoral College makes it easier to target presidential elections in a particular state, but a wholesale breach in election security is a difficult climb.
The patchwork system also allows for local and state-level officials to adapt to the needs of their constituents across the country. “The way that people cast a ballot on a reservation may be very different than how people cast a ballot for anything in an urban environment [or] a coastal environment,” explains Tori Wenger, a Skadden Fellow and voting rights specialist at the Legal Defense and Educational Fund, in an interview with the Prospect. “Your vulnerabilities on Election Day, just thinking of weather alone, can be very regional, and so having the versatility of communities being hopefully responsive to local voters’ needs is huge.”
However, the decentralized system faces new challenges in today’s elections, which in some ways have returned to an era that makes it harder for citizens to participate. All of the core elements of our election machinery—registration procedures, voter ID laws, absentee voting laws, poll worker trainings, and polling station operations—are left up to the states to decide. And the impact of these laws can often intersect with race and income, as did the harshest voter-suppression laws of America’s past. As a result, in every election, a voter in rural Georgia is likely to have a vastly different voting experience than a voter in an urban center in Oregon.
After hearing the Shelby County, Alabama v. Holder case in 2013, the Supreme Court rolled back the Department of Justice’s ability to prevent the implementation of any laws that carry an undue burden to voting access in states with a history of voter suppression. Under the 1965 Voting Rights Act, states could still pass whatever election legislation they wanted, but changes required federal “preclearance” after assessing the law’s effect on voters.
This is how Alabama’s legislature passed its voter ID law before Shelby County in 2011. But it waited until the post-Shelby voting environment—24 hours after the Supreme Court decision, to be exact—to implement the rule, which requires an ID to cast a ballot, and was followed by Department of Motor Vehicles offices (where IDs can be obtained) closing or reducing hours across the state, disproportionately in places with high black populations.
Alabama’s voter ID law, like many others across the country, was cleverly crafted. Technically, voter IDs are free for all who don’t have access to an ID in Alabama. But you must have the right supporting documents—a birth certificate, which some voters may not have because they live in a rural area and weren’t born in a hospital, or they weren’t allowed to be born in a segregated hospital. You would also have to make time to visit your local DMV office, which may now have reduced hours, or the one ID truck that is responsible for helping give out free IDs for the entire state (and is often parked in Birmingham).
Voter ID laws don’t just create obstacles to voting in Alabama. They also create confusion. Ben Harris, chair of the Mobile County Democratic Executive Committee, explained that information on laws passed in Birmingham, even ones meant to help voters get to the polls, does not always make it to voters. And as is the case across the country, the burden to help potential voters to the ballot box falls on local groups like his. “If I could multiply by 1,000 percent the resources we have to get the vote out, I would. And it still wouldn’t be enough,” Harris says.
At this year’s Selma Jubilee, a celebration of the civil rights march that brought the Voting Rights Act to fruition, many demonstrators told the Prospect that they’ve experienced some form of voter suppression, whether it was finding out on Election Day that their polling location was moved or struggling to cast a ballot while at university. “It was frustrating,” Derica Green, 28, said of her struggles voting while away at college, “but it was minute compared to what my grandmother and everybody else went through.”
In South Carolina, a photo ID is required, unless you are willing to sign an affidavit that you have an obstacle to getting an ID. These voters get an impediment ballot. They are also supposed to sign an affidavit stating their impediment on Election Day, and must hope that one of the poll workers is also a notary (without a notary, the proclamation is technically not an affidavit).
There is yet another ballot, a provisional ballot, for people who do have an ID, but either lost it or forgot to bring it to their polling station. For these voters, two days after a primary or three days after a general election, there are hearings where everyone who filled out a provisional ballot must show up to court and present their ID to a judge to have their ballot counted. Many don’t know about these court dates, and even if they did, taking time off to prove identity days after taking time to vote is a burden, especially for low-income folks who only get guaranteed time off for voting, not the aftermath.
In Texas, the voter ID law also causes confusion and controversy. Many types of ID are accepted, from a driver’s license to a gun license. Curiously, student IDs are not acceptable.
“When these laws are passed that introduce additional barriers to voting, it’s no secret that these laws are attempting to disenfranchise,” says Caren Short, senior staff attorney at the Southern Poverty Law Center.
Voter ID laws at the polls are complemented by witness laws regarding absentee ballots. Some states require citizens to show ID even when voting by mail. In Wisconsin, voters had to send in a digital copy of their IDs to receive an absentee ballot in the mail—which could have been a challenge for anyone without a scanner at home during the state’s coronavirus shelter-in-place order. Some counties in Arizona have a similar requirement facilitated through an online portal. And in Arkansas, absentee ballots have to be returned with a copy of the voter’s ID. Eleven states require voters who return mail-in ballots to follow a signature checklist before their votes are counted in the election: The ballots need the voter’s signature, a witness signature, and that witness’s home address.
It’s logical to try to increase security on a ballot sent in the mail because there’s increased risk with the ballot out of the voter’s and election officials’ sight, says Edward Foley, director of the election law program at Ohio State. But these laws can in effect do more harm than good.
The only case of mass voter fraud since the 2016 election involved absentee ballots. In 2018’s North Carolina Ninth District congressional race, Republican candidate Mark Harris “hacked” absentee ballots through an elaborate scheme in which his team went around collecting ballots from voters while posing as election officials, and replaced the voters’ intentions with ballots they filled out themselves, without the voters’ knowledge. Those involved were then charged with fraud.
The witness signature law in North Carolina did not protect those voters. In reality, voter signature matching issues between someone’s original registration and their vote-by-mail ballot, along with witness signatures, have been found to disproportionately harm certain demographics of voters more than others.
A study from the ACLU of Florida found vote-by-mail ballots in the 2012 and 2016 elections more likely to be tossed out from younger and ethnic-minority voters across the state, where only a matching voter signature is required. State election officials can reach out to voters to remedy any errors before an election, but that outreach doesn’t always take place, so it’s up to voters to track their own ballots.
In Georgia’s 2018 election, U.S. District Court Judge Leigh Martin May ruled that ballots with “mis-matched” voter signatures could not automatically be thrown out after the ACLU, Georgia Muslim Voter Project, and Asian Americans Advancing Justice–Atlanta brought attention to the high numbers of ballots being disregarded. In Gwinnett County alone, 600 mail-in ballots were rejected because of a signature matching issue.
South Carolina requires both a voter signature and a witness signature. Absentee ballots are mailed in two different envelopes that must be mailed back, but that also come stuffed with other voting literature and brochures. Voting rights activist Brenda C. Williams, who assists people in her community of Sumter with registration and voting, explained to the Prospect, “It comes with four to five pieces of paper … [and] if there’s one little piece of paper in the envelope with your ballot, your ballot will not be counted. Period.” That includes a quarter-sized “I Voted” sticker in one of the envelopes, which must be fished out for your vote to count.
Elections in South Carolina are run at an even more decentralized level, county by county. There, it’s up to a county election director whether or not to even reach out to voters to fix an erroneous ballot or simply toss it into an “Attention Envelope” to be destroyed 22 months later. The Prospect found that in the 2020 presidential primary, some directors did reach out to voters, while others said this effort was not legally allowed. The law does not say anything about how to remedy a voter’s ballot.
“Navigating all of that as someone who works professionally in voting rights, [I know] you will never know the full code verbatim,” Wenger says. “You couldn’t ask one official out there, one secretary of state or poll worker, to rattle off all of those different pieces of the puzzle at each level in which we engage with elections, from dogcatcher up to president, we’re just not going to know all that. So [you’re] putting that burden on voters and then blaming them for not having it memorized or for not catching someone when they’re being given wrong information.”
It’s a fact of American democracy that some states have higher hurdles to jump than others before arriving at the ballot box, but these laws are set in place and implemented over time. Other changes can happen with one election official’s decision before Election Day or even during in-person voting, and these changes are not always effectively communicated to voters.
For instance, sometimes polling places are consolidated, moved, or completely closed down. This could be for many valid and legal reasons, but when the new information doesn’t make it from an election official’s office to a voter, it can be equally as disenfranchising as a legal obstacle.
Often the burden of sharing this information falls on national nonprofit organizations, like the ACLU and Legal Defense and Educational Fund, or local grassroots groups. These groups track changes to polling places and disseminate the information to their networks to help voters get to the polls. Sometimes this means sharing information online, or leaving a volunteer outside of a closed-down polling station to direct voters to the new location, in the absence of government poll workers.
“Election administrators, elected officials, whoever, have often forfeited a lot of the work of communicating changes in the law or other things to nonprofits and advocates that don’t have the resources and shouldn’t have the obligation to let folks know about their fundamental right to vote,” Wenger says. “So often there just isn’t information updated on the [state election] websites. And if it’s not there, then where is it supposed to be? Who has the responsibility to make sure that voters in the easiest, clearest way to articulate know where they’re supposed to go on Election Day? It’s confusing and the ball is often dropped there because even if you make great accommodations, what does it matter if voters can’t utilize them and exercise their right to vote?”
During the COVID-19 pandemic, the failure to communicate changes in the election systems becomes especially clear. Most states quickly postponed their spring elections, buying themselves time to coordinate alternatives to in-person voting and inform voters and poll workers about how to stay safe at the polls.
However, Wisconsin went ahead with its election as planned on April 7, despite severe poll worker shortages and pandemic hospitalization peaks still to come. Voting was relatively normal in most of the state, with the exception of personal protective equipment. But in Milwaukee, where the largest portion of black residents live, the city was reduced to five polling stations (down from the usual 180) and voters received calls on the day of the election that their polling locations were going to be closed.
This disenfranchised countless Wisconsin voters, causing some to miss the deadline for the absentee ballot alternative. Others simply couldn’t take the health risks of traveling to a consolidated polling site and waiting in line for hours to cast their ballot. “They know, if we are forced to go out and vote in this environment: Either we won’t go, which is clearly, clearly disenfranchising people from voting, or if we do go, we’re putting ourselves in mortal danger,” Lakesha Wilder of Milwaukee told the Prospect on Election Day. “So the GOP, the Court who overturned our final decision to not hold this in-person election, completely screwed us. [As did] every single level of government.” Wilder was correct to be wary of the risks; on April 24, Milwaukee Health Commissioner Jeanette Kowalik announced that 40 residents had contracted the virus thus far as a result of the elections within the city.
What affected voters in Wisconsin in April will affect voters across the country in varying degrees, if the public-health pandemic continues into November. And because of travel and social-distancing limitations, the normal nonprofit and grassroots support systems may not be available to pick up the government’s slack.
Election officials have known since 2016 that this year’s race would be accompanied by a unique cocktail of possible foreign-interference campaigns, increased fearmongering about voter fraud, and misinformation spread virally on social media. These ingredients remain with the addition of an actual viral public-health emergency. These existing problems, along with legal barriers to the ballot box, will be exacerbated by the stress that coronavirus has placed on the already-fragile election system. And preparations for the general election need to be made now, not in October.
As of April, about one month into self-isolation and state lockdowns, Congress has only approved an additional $400 million to assist state and local elections operations. This may sound like a lot to invest in democracy, but it’s just a fraction of the $2 billion elections experts at the Brennan Center for Justice calculate is necessary. Some advocates are also calling for a uniform guarantee on ballot access through vote-by-mail or some other measure, as thus far, Congress’s allocation of funds does not address the many different levels of access to the ballot box.
“People are seeing how challenging it can be when every state has different processes for who can vote and how you can vote, and some states are quite accessible to all voters and the means of all people, and other states are quite restrictive and have suppressive systems,” Short says. “People are going to have some difficulty getting to the polls, and many people will want to vote by mail this year and a lot of states will not have that option.” Some advocates are calling for Congress to require some uniformity in elections, at least for this year, Short adds.
The most aggressive legislation proposed to protect Americans’ right to vote in November came from Sen. Kamala Harris (D-CA) in mid-April. The former presidential candidate’s bill calls for $5 billion of funding to help ensure free and fair elections. Harris’s bill is also the first that recognizes the different battles to the ballot box that Americans face.
“Unfortunately, the barriers faced by voters who have historically experienced the greatest obstacles to voting are exacerbated by the coronavirus (COVID-19) pandemic,” the bill reads. To respond to these barriers, Harris’s bill calls for expanded access to mail-in ballots and eliminating the “excuse requirement” to voting by mail that still exists in 14 states, while also supporting physical polling stations for those who cannot vote by mail because they may be disabled, visually impaired, or need assisted technology to privately mark their ballots.
The VoteSafe Act of 2020 also recognizes the needs of voters who live on reservations and don’t have the same access to the Postal Service. It also highlights those who have language assistance needs, and the accommodations that are supposed to be made for this group per the Voting Rights Act.
The bill is also the first to address the signature technicalities that cause votes to be tossed out, unlike the mail-in-ballot bill Sens. Ron Wyden (D-OR) and Amy Klobuchar (D-MN) co-sponsored one month earlier. Harris’s bill, if implemented into law, would cut the confusion on how (or if) election officials can help voters fix their ballots and makes remedying a signature defect a requirement. The VoteSafe Act also calls for ballot validity to be determined by two or more election officials and would give voters the opportunity to appeal the rejection of a ballot.
A bill like Harris’s would be an energizing shock to the sometimes lethargic election management in the United States. Under the Trump administration, however, it’s highly unlikely that such a comprehensive federal law addressing ballot-access disparities would pass. Although President Trump, and many members of Congress, vote by mail in their home states, he leads the national conversation questioning the validity of vote-by-mail ballots.
Despite signing the CARES Act and its $400 million appropriation for helping elections, Trump later told Fox & Friends how he felt about expanding access to voting: “They had levels of voting, that if you ever agreed to it, you’d never have a Republican elected in this country again. They had things in there about Election Days, and what you do, and all sorts of clawbacks, and they had things that were just totally crazy.”
Foley says that it’s not surprising that some elected officials do not want to expand access to the ballot box, because they fear it will cause them to lose power. “James Madison taught us in The Federalist Papers that humans are not angels and power can corrupt,” Foley says. What is shocking to him, though, is how openly some politicians talk about wanting to keep power. “They used to have to be really hidden and supposed to be embarrassed [but] they’ve become more open power grabs,” he adds.
Republicans have responded aggressively to attempts to expand access to the ballot box. In addition to Trump’s rhetoric, which often conflates voter fraud and security issues with equal access, most of the suppressive voter ID laws and signature requirements have come from Republican officials as well.
Trump also tweeted, “Republicans should fight very hard when it comes to state wide mail-in voting. Democrats are clamoring for it.” The party has listened. Republicans in New Mexico blocked a proposed conversion of the state’s June 2 primary to all vote-by-mail, and are fighting various attempts at expanding ballot access in Arizona, Georgia, Michigan, Nevada, Pennsylvania, Texas, and South Carolina. The Republican National Committee has committed $20 million to the nationwide legal campaign.
“We heard the president, we heard state elected officials in Georgia, both mention on the record that higher vote-by-mail turnout would be bad for them,” Short says. “It means that our political system has become so politically polarized that one political party has determined that it benefits when fewer people turn out to vote and so it helps to suppress votes. And that is antithetical to our entire democratic system.”
While Republicans actively reduce access, Democrats have not always taken steps to expand access. Even in deep-blue New York, voters only gained access to early voting in 2019. New Jersey still doesn’t have online voter registration or same-day registration. And in the 2020 California primary, Los Angeles County completely changed its in-person poll stations from its former precinct locations to a new vote center model, with limited outreach to multilingual constituents and five times fewer polling stations overall. This caused long lines and barriers to access on Super Tuesday.
On the other hand, Utah runs elections with universal vote-by-mail access and still elected two Republican senators, Mitt Romney and Mike Lee, as well as Republican Gov. Gary Herbert.
Overall, five states—Oregon, Utah, Hawaii, Colorado, and Washington—have set up universal vote-by-mail procedures, and California is moving toward that. There is no evidence to suggest expanded voting access through more accessible vote-by-mail would help one party or another. But during a public-health pandemic, it is certain to help people vote—especially older people who are the most vulnerable to the coronavirus and the most reliable voting demographic in the country.
“You have to design political institutions recognizing that your incumbents are going to want to hold on to power and politicians are going to be motivated by false interests and political parties are going to organize themselves around their political interest and seek power … that risk has been there from the beginning of it,” Foley says.
It’s likely that the legislative battle over how to run the November election will continue. But it’s important to note that even the most progressive legislation will not impact voters if they’re not told about these changes.
“A job isn’t complete when a bill is signed or a council votes on something,” Wenger says. “It’s when each and every voter has had a chance to vote and has been able to cast that ballot and know that it’s counted. I think sometimes that piece, that communication is not given the same kind of equal weight that it needs to be as a function of protecting and expanding the right to vote to all eligible voters.”
This isn't the first time this century that the U.S. has been forced to engage in deep reflection on its decentralized election system, who controls it and how it can manipulated to win political power. Twenty years ago, the country was stupefied by the design of Florida’s general-election ballots and how “hanging chads” could grind the rest of the system to a halt.
The national discourse translated into action after the 2000 election in the form of the Help America Vote Act, the last time the federal government passed legislation to implement some uniformity in voting across the nation. It funded punch-card machine replacements and created the Election Assistance Commission.
However, a lot of the money went to buying fancy yet dubious electronic voting machines, with proprietary software or no paper trail. There’s been little investment in actually helping voters cast their ballots or training poll workers. And nothing has been offered to counteract the latest trend of legal obstacles confusing the civic system.
“I think there’s a big-picture question to ask, 20 years after Bush v. Gore: How much better is our democracy than it was 20 years ago?” Foley muses.
The legislation that came from Florida’s 2000 confusion does nothing to mend the problems in 2020’s election system. HAVA was not built to respond to a new wave of voter-suppression laws, increased political polarization, or Donald Trump’s rhetorical battle against civic participation. In many ways, it was fighting the last war.
After the 2020 election, will Congress again reflect on where states are failing to ensure that everyone’s votes are counted, the most basic element of our democracy? It’s unknown whether we will have another Florida situation, but there will certainly be countless potential voters across several states excluded or tossed out of the democratic process, not through hanging chads but through new-style voter suppression.
“It’s a legitimate question and one that I would like to address, but not in an emergency,” Foley says. “I think we have to meet the emergency and then if we get through 2020 successfully, and I hope we do—then collectively we can say, ‘How did 2020 improve, or did it in this 20-year period?’”