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The Empire State Strikes Out—on the vital issue of making it easier for its residents to register and vote. That's a core conclusion of this report, which examines the goals of voter inclusion and the obstacles that stand in the way of broader voter participation in our nation—and especially in New York. Issued by the Hagedorn Foundation of Port Washington, New York.
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H A G E D O R N F O U N D AT I O N
A REPORT PREPARED FOR THE HAGEDORN FOUNDATION
H A G E D O R N F O U N D AT I O N
A REPORT PREPARED FOR THE HAGEDORN FOUNDATION
Strengthening Democracy
Through Voter Inclusion
Principles & Obstacles
EXECUTIVE SUMMARY
FOR THOSE WHO CARE ABOUT THE RIGHT TO VOTE as a central pillar of our republic
and of our state government, this is, as veteran voting rights activist Miles Rapoport of Demos
phrased it, a new moment. Recent events have raised the visibility of voting rights and given
advocates a sense that now is the time to act.
We’ve seen some grim evidence that our voting system is not what it should be: long voting lines;
polling places in Nassau County rendered unusable by superstorm Sandy; adoption of voter ID laws in
states across the nation, designed to deter the poor and minorities from voting; a Supreme Court decision
that has seriously weakened the Voting Rights Act of 1965; and a persistent, pernicious belief by
Americans that individual voter fraud is a real problem, despite all the facts to the contrary.
We’ve also seen signs of hope: a movement to amend the United States Constitution to create an explicit
right to vote; introduction of a federal Voter Empowerment Act, sponsored by Sen. Kirsten Gillibrand
of New York and Rep. John Lewis of Georgia, a civil rights hero; introduction of a similar Voter
Empowerment Act in the New York State Legislature; effective lawsuits across the country that beat
back voter ID laws; and an unexpected outcome in a race for New York State Senate, offering evidence
that some voters have begun to grasp the need for public campaign financing.
So the time is ripe for our state and federal legislators to summon the courage to make needed reforms.
The minimum goals must be to make registration easier, so that we can improve our abysmal levels
of voter participation, and to make voting less daunting and off-putting. In New York, the legislature
should at least: 1) Pass a bill allowing 16- and 17-year-olds to pre-register when they sign up for driving
privileges, so that, when they turn 18, they’ll be likelier to vote. 2) Make it easier for voters to register
and update their registration information whenever they do business with state agencies. 3) Make it
easier for them to keep their registration accurate and current, no matter where they move in the state.
4) Explore seriously the merits of in-person early voting, a reform that has the support of both
Gov. Andrew M. Cuomo and Assembly Speaker Sheldon Silver.
The purpose of this analysis is to examine what’s happening, both nationally and in New York, to give
lawmakers the information they need—and to give activists, including the New York Civic Engagement
Table, a factual underpinning for organizing. The analysis begins with a frank assessment of our state’s
shortcomings on voting, followed by a chart that compares three registration and three voting reforms,
then a longer description of what is happening in our state and our nation. The Hagedorn Foundation
hopes this document will be helpful both to elected officials and to our partners in the civic engagement
community. Most of all, we hope it will help New York State to become a national leader in enlightened
voting rights legislation.
Registration ReformsAUTOMATED REGISTRATION (SEE PAGES 9 TO 12 AND 14 TO 15.)
PRE-REGISTRATION (SEE PAGES 12 TO 13.)
SAME-DAY REGISTRATION (SEE PAGE 13.)
BENEFITS:
Reduces costs and errors.
BENEFITS:
SDR allows voters who got interested late to register right up to Election Day and cast a regular ballot.NY now closes registration 25 days before Election Day.
BENEFITS:
May remedy low registration rates among those aged 18 to 24.
COSTS:
Much cheaper: In 2008, OR spent $4.11 to register each voter on paper. With automated system, Canada spends only 35 cents.In NY, could save DMV $270,000 annually.
COSTS:
A-172 says fiscal impact is “none.”Election officials in SDR states call the cost “minimal.”
COSTS:
Minimal new costs.
BARRIERS:
Voters distrust any “automatic” registration by government.Proposed NY legislation (A-187A) lets voters choose automated registration or paper.
BARRIERS:
Requires a constitutional amendment, proposed in A-113.
BARRIERS:
Some fear that the young mostly vote Democrat.In NC in 2012, of 60,000 pre-registrations, 30 percent enrolled Republican, 30 Democrat, 40 independent. But NC has now eliminated pre-registration.
VOTER PARTICIPATION:
Registration rate increased from 28 percent to 53 percent among those aged 18 to 24 when AZ introduced online and automated registration.
VOTER PARTICIPATION:
Sharply higher turnout: From 1980 to 2012, it averaged 68.6 percent in SDR states, 58.3 percent in non-SDR states.
VOTER PARTICIPATION:
Increases turnout when accompanied by outreach to young people.In NC, more than 40,000 people aged 16 and 17 have pre-registered annually.
ELECTION INTEGRITY:
Reduces errors and opportunities for fraud.In AZ, Maricopa County found electronic registrations five times less error-prone than on paper.
ELECTION INTEGRITY:
Reduces the number of provisional ballots.Voters using SDR must attest to ID on site with election workers.SDR laws carry heavy penalties for fraud.
ELECTION INTEGRITY:
No increased risk of voter fraud.
FEASIBILITY:
In 2012, Governor Cuomo ordered DMV to do all of its registrations online. Previously did 300,000 a year, all on paper.Proposed legislation would expand that to other state agencies.
FEASIBILITY:
As of 2013, 13 states and the District of Columbia had adopted it. Legislation is pending in NY (A-172).
FEASIBILITY:
As of early 2013, six states and DC allowed 16-year-olds to register; two more allowed 17-year-olds.Several bills are pending in New York, including A-187A.
TECHNOLOGY:
NY already has one key element, a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).
TECHNOLOGY:
NY already has one key element: a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).
TECHNOLOGY:
NY already has one key element: a statewide voter database mandated by the Help America Vote Act of 2002 (HAVA).
Voting ReformsIN-PERSON EARLY VOTING (SEE PAGES 17 TO 20.)
VOTE CENTERS (SEE PAGES 21 TO 23.)
UNIVERSAL BALLOT DELIVERY (VOTE-BY-MAIL) (SEE PAGES 25 TO 28.)
BENEFITS:
More people want early voting.Reduces pressure on inefficient voting systems to handle all voters on one day.
BENEFITS:
Voters can study issues and candidates at length, in the privacy of the home, with the actual ballot present.Convenient voting from home.Voting in precincts is no longer needed.Reduces possibility of natural disasters affecting election.
COSTS:
Significantly more costly.In Suffolk, it could cost in the range of $1 million: for poll workers, ballots, and digitizing poll books.
COSTS:
In OR, precinct voting in 1998 general election cost $1.81 per vote cast. In 2010, a vote-by- mail special election cost $1.05.
BARRIERS:
Changes the way politicians have to campaign; they resist change.Using early voting smartly, they could campaign more effectively.
BARRIERS:
Might require state constitutional amendment (a multiyear process).
VOTER PARTICIPATION:
Studies show it increases turnout by three percent.
VOTER PARTICIPATION:
Strongly improves turnout.In the 2012 general election, turnout of voting- eligible population was 64.3 percent in OR, but only 53.6 in NY. Among actual registered voters, Oregon’s turnout was 82.8 percent.
ELECTION INTEGRITY:
Digitizing paper-based poll books is needed to prevent double voting.
ELECTION INTEGRITY:
OR compares the signature on every mail ballot to the one on file. Some fear unions/ companies could hold “ballot parties” to coerce votes, but there’s no evidence it’s happening.
FEASIBILITY:
More than 30 states already allow. Early voting period ranges from four to 45 days.Governor Cuomo and Speaker Silver support it.
FEASIBILITY:
Models exist in OR, CO and WA.
TECHNOLOGY:
Other machines beyond optical scanners may be needed (direct- recording electronic or print-on- demand).
TECHNOLOGY:
NY has significant work to do, to update its voter database.NY would have to install a system to check vote- by-mail signatures against those on file.
BENEFITS:
Allows no-wrong-door voting.Permits convenient voting at any vote center in the county.
COSTS:
Larimer has lower costs: fewer election workers and fewer supplies.
BARRIERS:
Partisanship: Party leaders will fight to make sure vote centers are placed in communities where their party is well represented.Patronage: Leaders will resist a reduction in the number of poll workers.
VOTER PARTICIPATION:
In 2004, Larimer County handled 94.6 percent of active registered voters: A third voted by mail, a third in early voting at vote centers, and a third at vote centers on Election Day.
ELECTION INTEGRITY:
Larimer developed an electronic poll book to keep voters from voting at multiple centers.With no-wrong-door voting, there are fewer provisional ballots.
FEASIBILITY:
In CO, Larimer County has used vote centers since 2003. It no longer uses precinct-based voting. In NY, no vote-center legislation is pending.
TECHNOLOGY:
Each vote center requires adequate distribution of multiple ballot styles.
Before we examine the potential improvements
in registration, voting rights and election
administration that the State of New York needs
to move ahead, we should spend a moment examining
where the Empire State now stands. The news isn’t good.
We live in a state with perennially poor voter turnout,
caused largely by a daunting array of obstacles that
make participatory democracy tougher for both voters
and candidates.
The Pew Center on the States has developed a new analytical
tool, the Elections Performance Index, that gives us a
better idea of the size of the mountain we must climb
to bring our state up to date in delivering the quality of
registration and voting experience that people deserve.
Before Pew released its initial EPI report in February 2013,
covering the 2008 and 2010 election cycles, we already
knew that New York was way behind other states in a
variety of measures.
For candidates, the state’s Election Law makes it far too
difficult for them to get on the ballot. One of the convoluted
Albany scandals, involving Sen. Malcolm Smith’s
attempt to run for mayor of the City of New York on the
Republican line, is about more than greed and venality.
At its core, it’s also about New York’s zany rules for getting
on the ballot, in this case the Wilson-Pakula certificate
that Smith allegedly tried to buy—a piece of election
arcana that most New Yorkers don’t even know exists.
For voters, the state makes either a good excuse or a good
lie necessary to get an absentee ballot. At the polls, voters
experience the results of the state’s stubborn “full-face
ballot” tradition, which helps keep incumbents in office
but tortures voters with tiny typefaces—in addition to a
maddening proliferation of symbols. New York was the last
state to implement the Help America Vote Act of 2002.
That delay ended up helping in some ways, but our tail-
end performance was another strong symbol of how far
behind New York has been in delivering this basic service
to its citizens.
In putting together its
Elections Performance
Index, Pew set out to
evaluate elections based
on data—not merely on
anecdotes. A look at the
methodology section
of the EPI shows how
maddeningly difficult
and complex it was to
get the right data for
fair comparisons. But
there’s nothing com-
plex about this simple
declarative sentence
from Pew, describing what voting is supposed to be about:
“The U.S. election system works best when all eligible voters can cast
a ballot conveniently and when those ballots are counted accurately
and fairly.”
Toward that end, to rate the 50 states and the District of
Columbia on how well each is living up to that goal,
Pew came up with this set of 17 performance indicators,
with the help of a group of advisers led by Massachusetts
Institute of Technology political science professor
Charles Stewart:
1. What percentage of absentee ballots was not counted
out of all ballots cast?
2. What percentage of absentee ballots sent out by the
state was not returned?
3. How many jurisdictions reported statistics on the 18
core survey items in the U.S. Election Assistance
Commission’s Election Administration and Voting Survey?
THE EMPIRE STATE STRIKES OUT
. 1 .
WE LIVE IN A STATE WITH PERENNIALLY POOR VOTER TURN-OUT, CAUSED LARGELY BY A DAUNTING ARRAY OF OBSTACLES THAT MAKE PARTICIPATORY DEMOCRACY TOUGHER FOR BOTH VOTERS AND CANDIDATES.
4. What percentage of voters did not cast a ballot due to
an “illness or disability (own or family’s)”?
5. What percentage of military and overseas ballots returned
by voters was not counted?
6. What percentage of military and overseas ballots sent
out by the state was not returned?
7. Were voters allowed to submit new registration
applications online?
8. Was a voting equipment performance check required
after each election?
9. What percentage of all voters had to cast a provisional
ballot on Election Day?
10. What percentage of provisional ballots was not
counted, out of all ballots cast?
11. How many people reported not casting a ballot because
of “registration problems,” including not receiving
an absentee ballot or not being registered in the
appropriate location?
12. What proportion of submitted registration applications
was rejected for any reason?
13. What percentage of the voting-eligible population
cast ballots?
14. What percentage of the voting-eligible population was
registered to vote?
15. Did the state offer basic, easy-to-find, online tools so
voters could look up their registration status, find
their polling place, get specific ballot information,
track absentee ballots, and check the status of
provisional ballots?
16. What percentage of the ballots cast contained an
under-vote (i.e., no vote) or an over-vote (i.e., more
than one candidate marked in a single-winner race)
—indicating either voting machine malfunction or
voter confusion?
17. How long, on average, did voters wait to cast
their ballots?
In the 2008 election cycle, a presidential year, New York’s
score was 60. In the 2010 cycle, a midterm election, our
state’s score was 45. Sadly, the Empire State’s performance
was bad enough to earn it a place in the category of poorest
performing states, along with Alabama, California, Mississippi,
Oklahoma, South Carolina, and West Virginia.
“The data generated exactly the kind of conversations that
will lay the groundwork for a better-run system,” wrote
Professor Heather Gerken of Yale University, whose
book, The Democracy Index, suggested accountability
along the lines of what Pew and its advisers helped to
create. “The EPI, in short, is the type of reform that makes
bigger, better reform possible.”
The power of the data and the embarrassment of our state’s
presence on that list of poorest performers ought to be
more than adequate motivation to do something.
But where to start?
Well, it all begins with getting more people registered in
the first place, including registration up to Election Day
itself, and making it possible for them to keep their
address and other information current, using online portals.
We also have to look at ways to make it easier for people to
get to the polls and to vote without long lines, to vote early
at the polling place, and to vote by mail without having
to offer specific excuses for not coming to the polls.
Let’s begin with a look at the principles that should guide us.
. 2 .
One problem facing voting rights advocates is the lack
of an explicit right to vote in the Constitution of the
United States. Another is the divided attitudes of voters
on the question of whether voting is a right or a privilege. (In some
countries, it’s an obligation—Australia, Argentina and Brazil, to
name a few.) While advocates want to make the argument that
voting is a right, the polling on that issue by the Brennan Center
for Justice at New York University School of Law, the Advancement
Project, and Lake Research Partners shows that real people are split,
with 47 percent saying it’s a
right, 35 percent saying it’s
a privilege, and 17 percent
saying both. Every group is
split on this, but between the
two major parties, the divide
is sharp, with 59 percent of
Democrats saying it’s a right
and 43 percent of Republicans
saying it’s a privilege.
So arguing that voting is a
right doesn’t work well with
the public. But to sustain
energy and long-term
persistence, it’s important
that voting rights advocates cling to an unshakable belief in
an affirmative right to vote as a core element of our republic.
Another vital principle is what Tova Andrea Wang of Demos
calls the Voter Inclusion Principle, in her important
2012 book, The Politics of Voter Suppression: Defending and
Expanding Americans’ Right to Vote.
“Wang argues that reforms that increase participation are
nearly always legitimate, while activities that suppress voting
are almost never legitimate,” writes Janice Nittoli, of the
Century Foundation, in her foreword.
“The voter inclusion principle is not a new way of expressing
what may seem like the prevailing Democratic-leaning
ideology and politics with respect to election reform,”
Wang writes. “It is a means of restoring the concept of voting
as a right. It is both a plea and a plan for bringing greater
equity and justice to our democratic system of elections for
the benefit of all Americans.”
In an interview from Belgium, where she now lives and
works—focusing heavily on voting in Africa—Wang
put it this way: “The idea is that you always want to err on
the side of being more inclusive, unless there’s some incredibly
strong reason not to be, that is proven through real data,
real evidence—in which case you have to do a different
analysis. But otherwise, the voting system should be
accessible and inclusive, absent overwhelming
countervailing data.”
So VIP, the Voter Inclusion Principle, should be the North
Star of voting rights advocacy work. In effect, the VIP makes
every voter a VIP, Very Important Person.
Another key to advocacy is a vital statistic, the VEP, voting-
eligible population. This statistic is central to the work of
Professor Michael McDonald of the United States Elections
Project at Virginia’s George Mason University. VEP represents
the voting-age population (VAP), minus those who are old
enough to vote but otherwise ineligible, such as felons and
noncitizens. In the 2012 general election, McDonald calculated,
the nation’s total voting-eligible population was 221,925,820.
The number of those casting a ballot for the highest office,
president, came to 129,072,347, or 58.2 percent of VEP.
The total ballots cast for all offices came to 130,306,739,
or 58.7 percent. In other words, more than 40 percent of those
who could have come to the polls and helped to shape
the future of their nation and states chose not to exercise
that right.
. 3 .
FIRST PRINCIPLES
THE IDEA IS THAT YOU ALWAYS WANT TO ERR ON THE SIDE OF BEING MORE INCLUSIVE, UNLESS THERE’S SOME INCREDIBLY STRONG REASON NOT TO BE, THAT IS PROVEN THROUGH REAL DATA, REAL EVIDENCE.
In New York, McDonald estimated the voting-eligible
population in 2012 at 13,299,567. The number of those
casting a ballot for the highest office, president, came
to 7,070,325, or 53.2 percent. The total ballots cast for all
offices came to 7,125,538, or 53.6 percent.
In other words, New York did worse than the national
average, which is sadly deficient to begin with.
Some of that unsatisfactory turnout in local races may be
attributable to the lack of compelling candidates. That’s a
problem for the political parties to resolve. But other
turnout-suppressing issues relate directly to our elections
system—outmoded registration procedures, ineffective
elections administration and poorly trained poll workers
who create long lines and discourage voters, lack of
convenient voting modalities such as no-fault absentee
balloting and voting on weekends. Removing those obstacles,
making the crooked roads straight and the rough ones
smooth, must be the goal not only of voting rights advocates,
but also of elected officials.
“This is how election law should be used: to encourage and
boost voter participation, not make it unnecessarily difficult,
or serve as a deterrent to any citizen’s participation,”
Wang wrote in The Politics of Voter Suppression.
With that as the ultimate goal, what would a bold, visionary
path to that result look like?
. 4 .
While the political reality is that we in New York
have found ourselves working for small pieces of
the big dream in 2013, and reaching almost none
of those modest goals, it’s helpful to remember that there are some
bold approaches out there. They include a long march toward the
28th Amendment to the Constitution of the United States, which
would create a specific, affirmative right to vote for the first time
in our nation’s history, and ambitious Voter Empowerment Act
legislation in both Congress and the New York State Legislature.
The likelihood is that neither those bills nor that amendment
will succeed in the short term, but they are worthy objects of
aspiration. So, before we proceed to a more nuts-and-bolts tactical
discussion of what we may be able to accomplish in the short run
in New York, we should spend a few moments indulging in those
high hopes.
THE 28TH AMENDMENT
Here’s the simple House language proposing what would
become the 28th Amendment to the Constitution:
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled (two-thirds of each House
concurring therein), That the following article is proposed as
an amendment to the Constitution of the United States,
which shall be valid to all intents and purposes as part of
the Constitution when ratified by the legislatures of three-
fourths of the several States within seven years after the
date of its submission for ratification:
Section 1. All citizens of the United States who are eigh-
teen years of age or older shall have the right to vote in any
public election held in the jurisdiction in which the citizen
resides. The right to vote shall not be denied or abridged
by the United States, any State, or any other public or
private person or entity, except that the United States or
any State may establish regulations narrowly tailored to
produce efficient and honest elections.
Section 2. Each State shall administer public elections in
the State in accordance with election performance standards
established by the Congress. The Congress shall reconsider
such election performance standards at least once every
four years to determine if higher standards should be
established to reflect improvements in methods and
practices regarding
the administration
of elections.
Section 3. Each State
shall provide any eligible
voter the opportunity
to register and vote
on the day of any
public election.
Section 4. The Congress
shall have power to
enforce and implement
this article by
appropriate legislation.
In that brief amendment,
these are the salient points:
– Every citizen 18 and over
has a right to vote.
– Congress will set—and
periodically adjust—minimum
election performance standards for state and local
governments.
– Every citizen will have the right to register on Election
Day.
That would be a truly powerful advance for our democracy.
But amending the Constitution is a dauntingly difficult
process, as the framers designed it to be. On top of that
difficulty of process, a real leadership problem now confronts
those who want to amend the Constitution to make the
right to vote clear.
. 5 .
HIGH HOPES
AMENDING THE CONSTITUTION IS A DAUNTINGLY DIFFICULT PROCESS, AS THE FRAMERS DESIGNED IT TO BE. ON TOP OF THAT DIFFICULTY OF PROCESS, A REAL LEADERSHIP PROBLEM NOW CONFRONTS THOSE WHO WANT TO AMEND THE CONSTITUTION.
“We had Congressman Jesse Jackson Jr. as a champion,”
said Judith A. Browne Dianis, co-director of The
Advancement Project, a next-generation, multiracial
civil rights organization based in Washington. “He
introduced the bill every year that he was in Congress.”
But Jackson is gone, resigning as a result of ethics
investigations. “So now we’re trying to figure out if
there’s someone who will pick up that cause.”
Identifying that someone could be a role that the New York
Civic Engagement Table might want to embrace. For example,
there’s a new member of Congress representing the 8th
Congressional District of New York, in Queens. His name
is Hakeem Jeffries, and he seems like one possibility for this
role: fiercely intelligent, eloquent and energetic. But his is
just one name. The bottom line is that this amendment
needs a champion who has the energy and vision to stay in
this struggle for the long haul.
FEDERAL VOTER EMPOWERMENT ACT
Next to an amendment to the Constitution, what would
be the most dramatic possible outcome of the struggle for
broader voter participation? Here’s an idea: final passage of a
landmark voting reform law, to be called The Rep. John R.
Lewis Voter Empowerment Act, named for the civil rights
hero who has served the people of Atlanta in the House of
Representatives since he was first elected in 1986. Enactment
of a sweeping piece of legislation that takes a variety of steps
to increase voter participation—and is named for one of
the original Freedom Riders, an icon of the civil rights
movement—would have not only wide practical effects but
immense symbolic power.
Lewis is sponsoring the Voter Empowerment Act in the
House. Sen. Kirsten Gillibrand of New York is sponsoring
it in the Senate. The bill, nearly 200 pages long, is a dream
compendium of improvements: modernizing voter registration;
ensuring access to online registration; allowing same-day
registration; encouraging young voters through pre-registration;
setting standards for voting machines to make sure votes
get counted accurately; authorizing funds for poll worker
training and setting standards for polling place practices;
and cracking down on voter “caging,” use of the mails to
compile lists of voters to be fraudulently challenged and
removed from the rolls.
As federal legislation can often be, the VEA is a product of
a fairly broad coalition effort. For example, D emos played
a central role in drafting the same-day registration section
of the national bill. Lee Rowland coordinated the drafting of
the New York Voter Empowerment Act, in her role as
counsel to the Democracy Program at the Brennan Center.
(She has since moved to the American Civil Liberties Union’s
Project on Speech, Privacy and Technology Project, where
her focus will be voting rights legislation.) Another Brennan
Center attorney, Jonathan Brater, was deeply involved in
drafting the federal bill.
If the Lewis-Gillibrand VEA were enacted, it would
complete the work begun by the Help America Vote Act of
2002. It would, in effect, be HAVA 3.0.
“It’s like the dream bill,” said Judith Browne Dianis. “It’s
got everything in there. I mean, it’s very lofty. Of course, the
problem is that we don’t have the right Congress to be able
to move something like that. But I think that it really sets
the standard. You kind of use some of these things like the
Voter Empowerment Act as a marker and as a messaging
bill. How do we use the bill to say this is where we should
be going, this is what’s lofty, this is what the vision is—
knowing that you may not get it passed, but then everything
that gets passed gets measured against it? It also be-
comes an opportunity to just have a national dialogue
about those things.”
. 6 .
Unfortunately, there is a sad precedent for a sweeping voting
rights bill, sponsored by an iconic legislator, that did not
make it through Congress. “I remember a few years ago,
when Hillary Clinton was still a senator, and she introduced
the most amazing election reform bill ever,” said Tova
Andrea Wang. “It had everything in it that we could all
hope for. It didn’t get very far.”
The problem, of course, is that the shape of our voting system
is not determined by the lofty so much as by the expedient:
what’s best for incumbents. That’s a self-protective trait
common to both major parties.
“This is one of the interesting dynamics of election law in
particular, that both Democrats and Republicans have skin
in the game,” Browne Dianis said. “For the Democrats too,
it’s not always about ‘let’s expand the electorate.’ First of all,
it’s individual skin in the game. If I expand the electorate,
then am I opening up the doors to people who won’t vote for
me, or I have to now court and get into my fold people who
I don’t even know. I have to identify them. I have to work a
little harder. It’s nice to know who’s voting for you, and you
don’t have to do any more. It’s a really sad statement, but
it is so true, because I’ve seen it in the work that we’ve done
over the years.”
Still, organizations such as the NAACP strongly support
the federal VEA bill.
“We think that we have to put something out there,” said
Jotaka Eaddy, senior advisor to the NAACP president and
CEO and senior director for voting rights. “We wholeheartedly
support the Voter Empowerment Act. Maybe some pieces
of it will move forward. There needs to be something in
Congress, something that Congress can focus on.” While
the VEA languishes in Congress, the NAACP is wisely not
taking its eye off the prize that seems more attainable in the
short term: state-level reform, on a variety of issues, from
same-day registration to restoration of voting rights of those
convicted of felonies.
New York, of course, is one of those states where a lot of
work needs to get done. As in Washington, there’s a big
aspirational bill to send a message of what needs doing and
set the stage for passage of as many elements of the omnibus
bill as possible.
NEW YORK VOTER EMPOWERMENT ACT
Like the federal bill, the New York version is a coalition
effort. Lee Rowland was at the heart of the coordination for
the Brennan Center, along with representatives of such
organizations as the New York Civil Liberties Union, New
York Public Interest Research Group, and the League of
Women Voters. They had the blessing of Assemb. Brian
Kavanagh of Manhattan to do the nuts-and-bolts drafting.
The drafting-and-revising process also included representatives
of Sen. Michael Gianaris of Queens, who sponsors the
bill in the Senate.
Though there are similarities between the federal and New
York bills, there are differences as well. For example, the
Lewis-Gillibrand bill deals with same-day registration.
The New York omnibus bill (A187/S619), facing the
clear language in Article II of the state’s constitution that
registration must end 10 days before Election Day, does
not deal with same-day registration. The strong language
on student rights in the state bill does not appear in the
federal legislation.
As with the Lewis-Gillibrand bill, the Kavanagh-Gianaris
proposal for the moment is a messaging bill— a starting
point for hearings. In fact, Kavanagh does not chair the
relevant committee, the Committee on Election Law. The
chairman is Assemb. Michael Cusick of Staten Island. No
hearings on the omnibus bill have been scheduled.
Now, let’s look in a little greater depth at some of the
reforms we laid out in chart form at the top of this analysis
—starting with the need to register more voters.
. 7 .
Though our goals include increasing the numbers of New
Yorkers who are registered to vote and the numbers of
those who actually do vote, it’s instructive to remember
that one reason why this is so difficult is that registration itself
is a form of voter suppression.
“If you take a look at the history of voter registration—and
I’m talking about going back to the 1800s—voter registration
laws were targeted at urban centers,” said Michael McDonald
of the United States Elections Project at George Mason
University. “Rural state legislators were fearful of all
these immigrants who were coming into the country.
So they implemented these registration laws.”
The same is true of the Empire State. “We did not have
registration laws in New York until in the 1800s, after
emancipation, after the Chinese, after the Irish, after the
Italians and after the Jews started to come,” said Neal
Rosenstein, the government reform coordinator of the New
York Public Interest Research Group (NYPIRG), who has
been working on election issues in the state for more than
a quarter-century. Those new groups posed something of a
threat to the existing power structure in the state. “That’s
when we got a lot of our registration laws,” Rosenstein
said. “It used to be, if you were a rich white male who owns
property, of course you could vote. But when everyone else
started showing up…then all the restrictions were put in
place.” In other words, registration was not originally meant
to make it easier for people to vote.
Now, of course, registration is nearly a universal phenomenon
in our nation—except for the State of North Dakota, which
proudly boasts of being the only state in the union that
doesn’t require some form of voter registration. Here’s a
link to a history of how that unusual distinction came to be:
http://www.nd.gov/sos/electvote/voting/vote-history.html.
The absence of registration doesn’t seem to have hampered
North Dakota’s performance on Pew’s Elections Performance
Index. In the 2008 presidential election cycle, New York,
which does have a registration system, had a score of 60. For
North Dakota, with no registration system, the score was 82.
In New York, registration and voting—like so many other
aspects of political life—live inside a tight constitutional set
of restraints. Here are some of them, from Article II:
Voters must have “been a resident of this state, and of the
county, city, or village for thirty days next preceding an
election.” That seems reasonable enough, but in today’s
highly mobile society, when people move in and out of states
often, it essentially bars last-minute voting by new arrivals.
Welcome to New York, and check your ballot at the door.
Voters absent from their county of residence at the time of
an election can get absentee ballots. So can those suffering
from “illness or physical disability.” Those are the only
excuses acceptable in the constitution.
Registration “shall be completed at least ten days before
each election.” Actually, the state’s real practice is even
more restrictive than the constitution requires: New York
closes registration 25 days before Election Day.
A voter “may be registered and his or her registration
continued so long as he or she shall remain qualified to
vote from an address within the jurisdiction of the board
with which such voter is registered.” If you’re moving
from one county to another, covered by a different board
of elections, you’ve got a big hurdle to jump.
So, how to make registration easier in New York? A pioneer
of vote-by-mail in Oregon, former Secretary of State Phil
Keisling, looks at registration within the frame of what
Oregonians already have. He likes to call it “universal ballot
delivery.” If you’re registered, you automatically receive your
ballot about two weeks before Election Day. “If you think
about voting reform efforts on a continuum,” Keisling said,
“if you decided that step two [receiving a ballot every year]
. 9 .
REGISTRATION
. 10 .
President Lyndon B. Johnson signed the Voting Rights Act into law on August 6, 1965, in the presence of civil rights leaders, including Rev. Martin Luther King Jr., Rosa Parks, and John Lewis.
Courtesy Lyndon B. Johnson Library
. 11 .
should be on automatic pilot, it’s not a big logical leap to
ask about step one: What about if I’m an American citizen?
Shouldn’t I be presumptively registered?”
But we are far from that kind of presumptive registration.
“The United States is one of few democratic nations that
place the entire burden of registering to vote on individual
citizens,” wrote Jennifer S. Rosenberg and Martha Chen
in “Expanding Democracy: Voter Registration Around The
World,” a report for the Brennan Center for Justice. “Today,
one-quarter to one-third
of all eligible Americans
remain unregistered—
and thus are unable
to cast ballots that
will count.”
In their study of voter
registration systems in
sixteen countries and
four Canadian provinces,
Rosenberg and Chen
looked at a spectrum of approaches to registration, from
countries that leave the burden of registration almost
entirely on the voter to nations that have decided that
the burden should be in the hands of government. On that
spectrum, there are only five nations who choose to leave the
burden on the voters: the Bahamas, Belize, Burundi, Mexico,
and the United States. The study included a depressing
chart showing the voter registration rates, ranging from
100 percent in Argentina down to the lowest, 68 percent
in the United States. Each of the four Canadian provinces
was above the 90 percent mark. The highest was Saskatch-
ewan, at 97 percent. In all, Canada’s registration rate was
93 percent.
The secret to the registration success that they studied was
simple: data-sharing. “In these places—Argentina, Australia,
Canada, France, and the Canadian provinces of British
Columbia, Ontario, and Québec—voter registration is
virtually automatic,” Rosenberg and Chen reported. “Election
officials routinely add new voters to the rolls based on
information that other government agencies provide on a
regular basis; there is no need for these voters to interact
with election officials directly and no corresponding
mountain of paperwork.”
The country they propose as a model for the United States
is Canada, which shares many demographic and political
characteristics with our nation. But there’s one big
difference. “The centerpiece of Canada’s system is a voter
database that is updated continuously, based on information
that 40 different government agencies routinely provide to
Elections Canada, the federal election authority. Provincial
and territorial departments of motor vehicles, the national
postal service, provincial and territorial electoral agencies,
and the federal tax authority all provide data.”
The problem, of course, is that there is an Elections Canada
in Canada, but no corresponding federal agency in the
United States. In fact, the lack of such an agency tends
to stun people who encounter Tova Andrea Wang in the
course of her work in Europe and Africa. What is it about
our electoral system that most surprises people in other
nations of the world? “The biggest thing—and this gets a
good laugh every time actually I speak at a public meeting
outside of the U.S.—the fact that the United States has no
federal commission that oversees elections,” Wang said. “In
almost every country that I work in, they have an independent
agency that is responsible for the administration of
elections. It’s separate from the executive and nonpartisan.”
In our country, we have the Election Assistance
Administration, created by the Help America Vote Act of
2002. The statute did not set it up to resemble Elections
Canada. “They were never meant to be anything close to
being like that in the first place,” Wang said, Besides,
though the statute authorizes four commissioner seats,
the current number of vacancies is four and the number of
seated commissioners is zero—thanks to partisan politics.
TODAY, ONE-QUARTER TO ONE-THIRD OF ALL ELIGIBLE AMERICANS REMAIN UNREGISTERED.
“Literally, I’ve had people just stunned that we don’t have
an agency that’s in charge of this stuff at a federal level,
that it is as decentralized as it is,” Wang said.
Short of the exceedingly difficult-to-achieve universal
registration—registering people to vote while they’re still
in diapers—the answer to greater registration has to be a
combination of approaches, including the kind of robust,
routine agency data-sharing that Rosenberg and Chen
found in other nations. Let’s start with pre-registration.
If we can’t register people while they’re in diapers, how about
while they’re in high school, and one of the two things many
of them want most in the world is the freedom to drive?
PRE-REGISTRATION
It’s too early to form a comprehensive judgment on how
well this works, because it’s too new. So let’s look at North
Carolina, which passed its pre-registration law in 2009,
effective January 1, 2010.
“It was rolled into an omnibus election change bill in the
Senate,” said Bob Hall, the executive director of Democracy
North Carolina, a nonpartisan voter participation advocacy
group that pushed hard for pre-registration. “I talked with
the minority leaders as well as the majority leaders. We got
Republicans on board early. It was sponsored in the House
by the youngest Democrat and the youngest Republican.
Both houses were majority Democrat.”
The bill permitted pre-registration of citizens aged 16 and 17,
most commonly through civics classes and other activities
at their high school and through their contact with motor
vehicles authorities. “It connects to these two institutional
systems,” Hall said. “One is the driver’s license agency, when
they’re 16. Just as they’re getting their ticket to freedom with
a license, they’re getting a ticket to a first-class citizenship.”
The bill also has language about promoting pre-registration
in civics class.
Since the law took effect, it has resulted in the pre-registration
of more than 107,000 North Carolinians aged 16 and
17. In September 2012, Democracy North Carolina took
a look at the 60,000 students out of the 107,000 who
would be 18 by Election Day 2012. That study produced
this telling statistic: 30 percent had chosen to enroll
as Democrats, 30 percent Republican, and 40 percent
unaffiliated. That result would seem to argue that
pre-registration is not hurting any single party.
The unfortunate reality is that each major party tends to
look at any change in voting rules through the lens of what
will hurt or help its electoral chances, both in the short
term and the long term. That calculus falls short of Tova
Wang’s more philosophical framework for analyzing changes
in our voting system. “Our democracy will only be a true
democracy when the full range of voices and interests have
an equal opportunity to be heard and heeded,” Wang wrote
in The Politics of Voter Suppression.
Right now in North Carolina, despite the 2012 statistics
showing that the pre-registration law appears to have been
almost perfectly neutral in the party enrollments it produced,
there’s a Republican majority in both houses and a Republican
governor, and a major Republican funder named Art Pope,
now the state budget director. In 2013, a little more than
three and a half years into the state’s pre-registration era, the
legislature passed and the governor signed a sweeping bill
that ended pre-registration and took other restrictive steps,
such as reducing the days of early voting.
In Maryland, the home state of Rob Richie, executive director
of the national election reform advocacy group FairVote,
pre-registration is alive and well. In fact, Richie said,
Maryland’s pre-registration goes a little further. “We allow
17-year-olds to vote in primaries, if it’s associated with a
general election when they’re going to be 18,” Richie
said. “Once they’re on the rolls, it’s a simple database
management issue. Our town of Takoma Park is about to
. 12 .
. 13 .
lower the voting age to 16 for local elections. They can just
use the state rolls. It’s super easy for them to give their rolls
to the city, for the city to turn them into active voters.”
One problem with pre-registration is that there’s a lack of
hard data on its ultimate impact on voter participation,
once the pre-registered teens reach actual voting age. But
Lee Rowland, who worked on the Voter Empowerment Act
legislation in New York, sees every reason to believe that it
will help. She cites data showing a strong increase in
registration after the National Voter Registration Act of
1993, also known as The Motor Voter Act. It set about
cutting registration costs by using motor vehicles agencies
and other offices to collect data that could be used for voter
registration. As the states adopted implementing legislation,
registration increased noticeably. Rowland is confident that
pre-registration will have a similar effect.
It’s also true that, once those aged 16 and 17 are pre-
registered, they’ll begin to receive mountains of mail and
plenty of phone calls from candidates and parties. Some
studies show that party-based contacts like those can
increase registration rates among those contacted by as
much as three to five points.
Nationally, FairVote urges a uniform age of 16 for pre-
registration. “In some states, all 17-year-olds and some
16-year-olds can register,” a FairVote analysis explains.
“In other states, some 17-year-olds and no 16-year-olds can
register. In many states it changes year to year based on the
date of the next election. The lack of uniformity creates
confusion and makes it harder to run effective voter
registration and education programs in schools and at the
Division of Motor Vehicles.”
This year, pre-registration of people at 16 and 17 is part of
both the omnibus Voter Empowerment Act in New York
and stand-alone legislation. There’s no compelling reason
why it can’t be adopted here, along with some strong
requirements for civic education in the schools, so that the
schools become as important an incentive for preregistration
as the Department of Motor Vehicles.
SAME-DAY (ELECTION DAY) REGISTRATION
The 2011-2013 Elections Legislation Database of the
National Conference of State Legislatures, an excellent
source of information about election-related legislation
across the country, showed 144 bills in 32 states on same-
day or Election-Day registration (EDR). One of them,
A-172, is sponsored by Assemb. Brian Kavanagh, who is
also the sponsor of the omnibus Voter Empowerment Act.
The bill memo cites six EDR states— Idaho, Maine,
Minnesota, New Hampshire, Wisconsin and Wyoming.
“On average, turnout was 14.4 higher in EDR states than
across the country in the 2004 election cycle,” the memo
said. “New York consistently ranks near the bottom in
voter turnout in the country.” In 2013, both Colorado and
Maryland enacted same-day registration laws.
The problem with this piece of Kavanagh legislation,
which he has offered before, is Article II of the state’s
constitution, which says that registration must end 10 days
before Election Day. Kavanagh’s administrative bill is
fine, as far as it goes, but it will get nowhere without a
constitutional amendment—preferably a thorough rewrite
of the entire Article II, to enable a whole suite of election
reforms that will allow New York to enter the 21st century
and exit the unpleasant lists that rank our state so low on the
vital scale of making it easier for its people to register to vote.
OTHER REGISTRATION MODERNIZATIONS
Happily, there are things the State Legislature can do to
improve our registration system without resorting to the
long, onerous process of constitutional amendments. 2013
would have been a good year to do one or more of them.
We’ve already discussed pre-registration. In addition, this
could have been the year to move boldly toward creating a
real system of automatic updating of addresses, through
a variety of state agencies. That would help solve the
portability problem. Your address would automatically be
changed whenever you interact with a list of state agencies
included in Brian Kavanagh’s Voter Empowerment Act.
It’s important to note
that this is “automated”
registration, as opposed to
“automatic” registration.
Polling shows that people
are fearful of letting the
government decide for
them whether they should
register or not. They need
to have an option, which
the Kavanagh VEA
preserves for them. It
gives people another
opportunity to say, in
effect, that they’d like
to be registered to vote.
But the bill doesn’t force
registration on anyone.
Voters would receive
an explanation of the
requirements for
eligibility, and they’d
have to affirm that they
are eligible voters.
The bill not only increases the opportunity for voters to say
yes to registration but also decreases the opportunity for
errors. Rowland cited Maricopa County, Arizona, which has
automated all of its DMV transactions for several years. The
experience there is that registrations completed on paper
have five times as many errors and duplicates as those coming
in through the electronic system. And the electronic
registrations are about 80 cents a form cheaper than
those on paper.
When Gov. Andrew M. Cuomo directed the Department of
Motor Vehicles in August 2012 to streamline its registration
process, he said: “At the DMV, or in their own homes, New
Yorkers will now have a convenient and secure way to ensure
they are able to register and exercise their right to vote.”
The department had been processing about 300,000 motor
voter applications a year. Unfortunately, the process has been
manual. Drivers filled out paper forms at one of 129 DMV
branches, and employees at the DMV had to sort those
pieces of paper and mail them to the correct county board of
elections. In our era of electronic records and astonishing
algorithms, of course, this is madness. So Cuomo directed
DMV to replace most of those paper forms with digital records.
Under the new system, people who hold either a state driver’s
license or a non-driver ID issued by the state can now register
or update their address or party enrollment in one of two ways:
They can do it from home, using a secure online account on a
website run by the DMV, https://my.dmv.ny.gov. Or they can do
it at new electronic terminals at DMV offices around the state.
So far, so good. But the electronic “signatures” involved in
this new process turned out not to be universally acceptable.
At first, the Suffolk County Board of Elections balked
at accepting the digital signatures. They wanted a “wet
signature,” presumably produced by a human hand with
pen on paper. To its credit, with a strong push from the
Long Island Civic Engagement Table, the Suffolk board
ultimately backed down. But glitches like that should
be fewer, after the online system for registering and
changing addresses is included in the Election Law itself.
Kavanagh’s Voter Empowerment Act does just that.
. 14 .
IN THIS AGE, WHEN WE CAN SYNC ALL OUR PERSONAL CONTACTS INSTANTANEOUSLY ON ALL OUR DEVICES —SMART PHONE, TABLET AND DESKTOP COMPUTER—SURELY WE CAN FIND A WAY TO MAKE CERTAIN THAT EVERYBODY WHO LEGALLY CAN BE REGISTERED ACTUALLY IS REGISTERED, AND THE VOTER ROLLS ARE CLEAN, ACCURATE, AND UP TO DATE.
. 15 .
Cuomo’s action also needs to be broadened—to include
state agencies beyond DMV—as the state VEA would do.
At the suggestion of NYPIRG’s Neal Rosenstein, the state
VEA requires the state and New York City elections boards
to provide City University of New York and State University
of New York campuses with special registration forms. Many
agencies have to do annual reports on how many forms they
have handed out and how many people have actually
registered. But Rosenstein didn’t want to place new
administrative burdens on the CUNY and SUNY systems.
So the campuses would get “serialized” forms. With those
serial numbers, it would be clear where the completed
registration forms originated within SUNY, CUNY, or
public school districts. So SUNY and CUNY would be
able to boast about the level of civic engagement of their
students but wouldn’t have to cope with a heavy new
reporting requirement.
Another student protection in the VEA, contributed by the
New York Civil Liberties Union, is to clarify the registration
status of students, to make clear that they have the right
to decide for themselves their “locus of…primary concern,”
the parental home or the college community. That right
should already be protected, in theory, but it doesn’t
always work. In the 2012 election, for example, students
at some Hudson Valley campuses had a tough time. “It
was an endless assault on students in Dutchess County,
from even just getting voter registration,” Rosenstein said.
“They refused to give us voter registration forms to register
folks... So there were students who basically not only weren’t
getting forms, but then they weren’t processing the forms.
There was a slowdown in the office, and then, on Election
Day, they had problems as well.”
It’s not in the VEA bill, but another Neal Rosenstein idea
is to require various public franchise-holders, such as Con
Edison, LIPA, and phone companies to distribute voter
registration forms. “When someone moves, that should
be part of their franchise agreement: They send them with
that first bill a voter registration form or that access to
register online,” Rosenstein said.
A little imagination could probably come up with additional
ideas for elevating voter registration to something all New
Yorkers strive for. In the process, our state can do its part to
clean up the nationwide mess that the Pew Center on the
States has found: About 24 million voter registrations in the
United States—one of every eight— are no longer valid, or
are significantly inaccurate. More than 1.8 million people
remain listed as voters, even though they are currently dead.
Something like 2.75 million people have registrations in more
than one state.
In this age, when we can sync all our personal contacts
instantaneously on all our devices—smart phone, tablet and
desktop computer—surely we can find a way to make certain
that everybody who legally can be registered actually is
registered, and the voter rolls are clean, accurate, and up
to date. But that’s only the beginning. Then we have to
find a way to ensure that the act of voting itself is not a
Herculean task—long lines, unnecessary complications,
and miscounted votes. It must be not just a civic duty but
a civic joy, a real and widespread participation in the way
we are governed.
Though polling has shown some division on the question
of whether voting is a right or a privilege, it’s also
clear that convenience is important to voters. In the
message-testing work done by the Brennan Center for Justice,
the Advancement Project and Lake Research Partners, one of the
choices polled was the question of whether one option, early voting,
is simply an expensive privilege, out of keeping with the duty of
voters to show up on Election Day, or whether it’s important that
government make an investment in early voting. The results were
clear: 64 percent opted for investment in early voting, and only 28
percent insisted that it’s an expensive privilege.
EARLY VOTING
There’s no question that early voting—both by mail and in
person—is a rising phenomenon. One of the leading scholars
on American voting patterns, Professor Michael McDonald
of the United States Elections Project at George Mason
University in Virginia, testified about that growth before the
United States Senate Rules and Administration Committee
in 2010, describing a clear pattern of growth.
“Historical studies in 1936 and 1960 found that early
voting increased from 2 percent to 5 percent of all ballots
counted in these elections,” McDonald testified. “Recent
aggregate statistics indicate that early voting increased from
at least 8 percent in 1992, 8 percent in 1994, 11 percent in
1996, 12 percent in 1998, 16 percent in 2000, 16 percent in
2002, 23 percent in 2004, to 31 percent or at least 40.6 mil-
lion voters in 2008.”
In that same testimony, McDonald reviewed scholarly
studies about the impact of early voting on turnout. “The
authors of perhaps the most comprehensive and recent of
these studies find that no-excuse absentee balloting increases
long-run turnout rates by an average of 3 percentage points
and that no-excuse in-person early voting increases long-run
turnout rates by an equal average of 3 percentage points,” he
testified. It’s not a huge increase, but for McDonald at least,
it’s worth pursuing.
“I’m in favor of early voting as an option,” he said in an
interview. But he didn’t dodge the costs issue. “There are
going to be polling locations open over a long period of
time. Someone has to bear the cost of having those places
open. And campaigns, when you have a large number of
people voting early, are going to have to change their strategies.”
The attitude of incumbents and the impact of any changes in
voting patterns is always a gritty reality below the theoretical
discussion of turnout rates and greater civic engagement.
“The people who make the decision about how we vote are
the same people who have skin in the game,” said Judith
A. Browne Dianis of the Advancement Project. For them,
she said, early voting
can be “a scary thing,
because that doesn’t
mean that that last
speech on the Monday
before Election Day is
the clincher for you.
Many people have
already voted. So it
flips how they have
to do campaigning.”
Actually, as participants at a Common Cause convening on
best election practices pointed out, early voting can work to
the advantage of all the parties. As early voters cast their
ballots, election officials can provide parties with daily lists
of who has voted. This enables the parties to make their
campaigning more efficient, by ignoring further appeals
to those who have already voted, and intensifying their
get-out-the-vote efforts among those who have not yet gone
to the polls. For the early voters themselves, there’s another
advantage: Once they have voted, and the parties know
. 17 .
BETTER BALLOTING
THERE’S NO QUESTION THAT EARLY VOTING—BOTH BY MAIL AND IN PERSON—IS A RISING PHENOMENON.
. 18 .
they have voted, they can expect to get fewer robocalls and
mailings in the final days of the election cycle.
Some form of early voting—ranging from no-excuse
absentee balloting to in-person early voting—is available in
more than 30 states and the District of Columbia. And in
New York in 2013, it had a chance to be an important
conversation, partly because it could have been viewed as a
possible response to the polling place disruption caused by
superstorm Sandy. In that frame, the theory went, it might
have been easier for legislators who would normally be
hesitant about early voting to overcome their objections.
The argument is this: If more people had voted early, that
might have relieved pressure on Election Day itself. The
early voting bill sponsored by Assembly Speaker Sheldon
Silver (A-689) would permit voting 14 days prior to a
general election. Sandy hit New York on October 29, a little
more than a week before Election Day, November 6. So, if
Silver’s bill had been the law, voters would have had nearly
a week to cast their ballots before the storm roared in.
There is no way of knowing for certain whether the
availability of early voting in 2012 would actually have
increased turnout. But the memo supporting Silver’s bill
used turnout as part of the rationale. It pointed to the
lamentable rate in New York in 2012, which put our state
near the bottom of the heap, just ahead of Hawaii and West
Virginia. Then it argued: “Enhancing access to voting is
perhaps the most effective way to raise the voter turnout
rate in New York State. Early voting does just that.” As
McDonald points out, the scholarly studies show the turnout
gain is modest. So, at the theoretical level, the debate in
New York will likely focus on a cost-versus-turnout-gain
analysis. At the more visceral level of incumbent protection,
it’s an issue that will be decided, as Browne Dianis put it, by
people with “skin in the game,” elected legislators who fear
any innovation that makes it more difficult for them to
retain their jobs. As the 2013 session played out, the
Assembly passed Silver’s early voting bill, but the Senate did
not act.
It’s also worth remembering that, even in states where early
voting is available, voters can experience long lines, and
other balloting anomalies can happen. Browne Dianis, for
example, experienced a seven-hour wait to vote in Prince
George’s County, Maryland. “In 2008, I voted by absentee,
and for some reason, I totally forgot to get an absentee
ballot,” she said. “I pulled into the polling place, and I saw
the line. It’s this huge library, and the line wrapped around
the library, which was really like four blocks long. I looked
at the line—I had my 10-year-old with me—and I said,
‘Wow! Look at that line. I may have to come back tomorrow.’
And then she said to me, ‘Mommy, no, let’s go, let’s get
your vote in.’ So I couldn’t then drive off, because she had
seen me on TV like once a week, talking about voter
suppression. So I was like, ‘OK, let’s get in the line.’ I did
not expect that that line would be a seven-hour line. And it
was the Sunday before Sandy hit. So I did know that I really
needed to stand in the line, because who knew what was
going to happen the next day.”
The possibility of long lines during early voting may well
depend on the distribution of polling sites in each county.
The Silver bill proposed a minimum of five sites per
county. That may be enough in densely populated counties
with a smaller geographic area. But would it be enough in
geographically spread out counties?
“This is the first time that NYPIRG has endorsed the idea
of early voting,” said Neal Rosenstein, NYPIRG’s veteran
government reform coordinator. But the number of polling
places remains a vexing concern. “It said a minimum of five,
but they’re leaving it up to individual boards’ discretion. So
you’re setting up a system where you could be enshrining in
law what could be very disenfranchising provisions.”
The answer may be a statewide standard. “So, for example,
one of the ones which I was suggesting is one early voting
site per Assembly district,” Rosenstein said. “That might
get out of hand. Or maybe you’ll end up with one for every
two ADs, or one for every Senate district. But something
which isn’t based just on a county, which recognizes that, if
we just do it based on a minimum number per county, we
could end up with really jammed sites.”
Another problem Rosenstein cited is that the original Silver
bill would have allowed the use of DRE (direct-recording
electronic) voting machines at the early voting sites. Groups
such as NYPIRG and others concerned about voting
rights had rejected the use of those ATM-like touch-screen
machines, in favor of optical scan voting machines, which
count paper ballots fed directly into the machine by voters.
The criticism of DRE machines has been that they are more
vulnerable to hacking. Silver’s original proposal would have
given them a foot in the door of the polling place.
Rosenstein acknowledges the appeal of DREs in an early
voting setting, where voters from multiple election districts
come to a limited number of early voting sites. Without
the use of DREs, the local boards of election would have to
store paper ballots for multiple election districts. Just take
Suffolk County as an example. It’s geographically vast. Just
one of its ten towns, Brookhaven, is larger than all of Nassau
County. In an even-numbered year, under the current
district maps, Suffolk voters would be voting in 12 Assembly
districts, 5 Senate districts and 3 congressional districts. If
early voting were set up in just a few sites across this vast
county, the Suffolk County Board of Elections would have to
make sure those sites had paper ballots available for voters
from all those districts. With DREs, all those different
ballots could be electronically stored inside the machines in
advance and called up electronically for each voter.
“Just because we have huge counties, and just because we
have so many different ballot designs within a single county,”
Rosenstein said, “the DRE is a very attractive nuisance.”
There is a less expensive alternative to printing out large
numbers of paper ballots in advance. Maggie Toulouse
Oliver, the clerk of Bernalillo County—the most populous
county in New Mexico—talked about that alternative at the
Common Cause best practices convening. The risk of printing
so many ballots in advance is that unused ballots will go to
waste. “Literally, I shredded $1 million worth of ballots in
the primary election of 2008,” Oliver said. So, for the 2010
election, her county switched from print-in-advance to print-
on-demand, using rented equipment, and saved $800,000.
Speaker Silver is not the only state leader to have sounded
off on early voting. Though Gov. Andrew M. Cuomo did
not mention it in the spoken version of his State of the State
speech, he devoted some space to the idea in “NY Rising,”
the book that serves as an expanded version of the State of
the State.
On the question of how long the early voting period should
be, Silver’s bill proposed 14 days. Cuomo’s suggestion: “New
York should create an early voting system that is at least
one week long and includes the weekend before a scheduled
Election Day. Longer periods of early voting have not shown
to be correlated to greater voter turnout, and New York
should strike a balance that optimizes convenience for voters
without creating unnecessary administrative burdens.”
The governor’s discussion of the issue also raised the question
of the number of early voting sites as crucial. “It is essential
to have a sufficient number of accessible voting polling locations
be made available not only to increase the number of early
voters, but to accommodate the needs of voters who do not
have ready access to transportation and who have limiting
work schedules,” the governor argued.
. 19 .
. 20 .
Despite all the questions and concerns about the specifics,
Common Cause saw it as a potential short-term win that
voting rights advocates couldn’t afford to spurn. And
NYPIRG backed the idea too, with the right bill language.
“It’s not boosting participation that much, from everything
we’ve seen,” Rosenstein said. “Despite that, it’s a way to
address these horrible conditions at poll sites.”
In the end, the State Legislature did not adopt early voting
in 2013, a year that had seemed so promising. But it’s an
idea that is unlikely to go away soon.
“IT IS ESSENTIAL TO HAVE A SUFFICIENT NUMBER OF ACCESSIBLE VOTING POLLING LOCATIONS BE MADE AVAILABLE NOT ONLY TO INCREASE THE NUMBER OF EARLY VOTERS, BUT TO ACCOMMODATE THE NEEDS OF VOTERS WHO DO NOT HAVE READY ACCESS TO TRANSPORTATION AND WHO HAVE LIMITING WORK SCHEDULES,” THE GOVERNOR ARGUED.
The whole question of proper locations for early voting
sites suggests at least a brief look at “vote centers,” a
permanent system of voting that essentially does away
with local polling places and replaces them with a much smaller
number of vote centers. It’s not likely to happen in the near future
in New York, for a variety of political reasons. But it’s worthy of
examination at the same time as we discuss the proper number and
location of early voting polling places.
“A vote center is like a super polling location, where anyone within
the jurisdiction can go and vote on Election Day,” said Michael
McDonald of George Mason University, who has studied them and
likes the idea. “People are no longer tied to their school or whatever
is their normal polling site.”
The core of the vote center idea is convenience for voters, but it has
advantages for election administrators as well. “They locate
the vote centers in high-traffic shopping centers, for example,”
McDonald said. “People go in and vote and then go in to do their
grocery shopping. So it’s a win for the voters, because now you
made voting a far more convenient part of their day. But it’s also a
win for merchants. They actually like these vote centers, because
now you’ve got foot traffic that’s coming into their stores.”
It reduces election costs, because a county doesn’t have to staff as
many polling places or spend as much money on equipment. Part
of the savings can be spent on higher pay and better training for
poll workers. The better the poll workers, the better the experience
for voters. “So, you’ve got higher turnout, cost savings, you’ve got
merchants love it, voters love it,” McDonald said. “You’ve hardened
your infrastructure, so that if one polling location goes down, you
have several backups in place.”
Are the vote centers a flash in the pan, or the next big thing?
Actually, they’re part of a transition to something else, said
another scholar, Robert Stein, a political science professor at
Rice University in Texas.
“I believe vote centers, like early voting, are probably a transition
mode of voting between Election Day precinct voting and remote/
Internet voting,” Stein said in a detailed email. “The transition may
be years—if not decades—away, but it will happen. Close to 40
percent of the vote for president in 2012 was cast before Election
Day, either in-person or by mail. Voters like this convenience and
won’t give it up.
“Many of the features that are desirable about early voting
—choosing where to vote and voting at locations more central to
where one works, shops, et cetera, and locations that are accessible
to parking and short waits—can be afforded to Election Day voters
by using vote centers. Moreover, there is evidence, albeit not yet
published, that vote centers reduce both the cost of conducting
elections and what some call ‘voter fraud,’ but I prefer to term
errant voting, that is, persons voting in the wrong jurisdiction or
voting place or who have insufficient identification.
“I have thought that vote centers might be more suitable for
suburban and some exurban areas, but I have seen evidence of their
effectiveness—that is, voter satisfaction, high turnout, and lower
costs—in reasonably dense urban settings such as Albuquerque,
New Mexico, and Austin, Texas.”
Stein has consulted with Indianapolis, Indiana, and other jurisdictions
about adopting vote centers. He believes that economics will
play a significant role in future decisions by municipalities to
opt for them. As a result of the Help America Vote Act, the federal
government paid for the purchase of new voting systems across the
country. The next time local jurisdictions buy new machines, they
will almost certainly have to bear the cost all by themselves—and
today’s whiz-bang devices won’t last forever.
“As these machines age, their replacement may prove too
costly to support a large number of Election Day precinct
voting places,” Stein concluded. “The opportunity to use a
smaller number of large vote centers with optically scanned
paper ballots may be something local elections officials opt
for, rather than buying more expensive voting equipment.”
. 21 .
VOTE CENTERS
. 22 .
One jurisdiction that has already embraced vote centers
with zeal is Larimer County, Colorado. It has a population of
300,000 and an area of 2,700 square miles, running from
the Wyoming border south to 20 miles north of Denver.
Its largest city is Fort Collins.
The architect of the idea was Scott Doyle, an environmental
engineer who left the power industry in 2000 to become
deputy to the clerk and recorder in Larimer. The clerk
and recorder’s office has a wide swath of functions, including
issuing and recording
marriage licenses,
recording real estate
transactions, issuing
liquor licenses,
operating the motor
vehicle offices—and
everything involving
voting, including
registration and
conducting all
primary, general and
county elections,
and, under contract,
municipal and school
district elections.
When he joined the clerk’s office, Doyle noticed voters
showing up at polling places and not knowing where to vote.
So he began to nudge his boss, the clerk, to do something
along the lines of vote centers. She had no interest in change,
but she did encourage Doyle to run for clerk himself. He ran
and won. “The minute I got to be clerk, I said, ‘We’re going
to do vote centers,’ ” Doyle recalled.
Withstanding an initial blast of media criticism, Doyle
forged ahead, starting in 2003. Larimer County had 181
precincts. To replace them, Doyle began setting up vote
centers. There were 33 in the 2008 presidential year, 24 in
2012. In the process, the old system of going to the local
precincts to vote has disappeared. When Doyle first went to
work as a deputy, what had bothered him was noticing voters
struggling with knowing where to vote. Now, with vote
centers, there is no wrong door. Any voter in Larimer can go
to any vote center and be issued a ballot that lists the specific
candidates that they’d find on a ballot if they were voting in
a precinct a block from home.
“We have state races or federal races. We’ve got dirt districts.
All that means is that there’s a particular ballot style,” Doyle
said. In fact, there can potentially be as many as 250 different
ballot styles. “We make each one of those ballot styles available
in each of those vote centers.”
At first glance, it might look as if the necessity of stocking
so many different ballot styles at each vote center would be
so costly that it might outweigh the cost reductions that vote
centers make possible, in comparison to the larger number
of local polling places in the past. But Doyle said the county
has evolved an efficient system of making sure there’s an
adequate supply of ballots and minimizing any potential waste.
“It is true that we have extra ballots, but here is how we
handled it,” Doyle said. “A vote center in a specific location
would have all the style ballots for the entire county.
However, the vote center would have the larger number of
ballots for the nearby precincts, while only having a small
amount for the far-away precincts. As little as five ballots in
some instances. As well, we have placed ballot-on-demand
printers in critical locations throughout the county.
“Another contingency is that, as voting occurs, we know
what styles are being used at each center, due to having the
electronic poll book centrally located, where we have a tech
ANY VOTER IN LARIMER CAN GO TO ANY VOTE CENTER AND BE ISSUED A BALLOT THAT LISTS THE SPECIFIC CANDIDATES THAT THEY’D FIND ON A BALLOT IF THEY WERE VOTING IN A PRECINCT A BLOCK FROM HOME.
monitoring. In many cases we would know it’s time to
restock before center judges. Runners would then resupply
ballots as needed. We also knew from experience how many
voters historically voted what ballots at what location. We
worked with our print vendor and had ballots printed,
sorted by style, with a specific and varying number of each
style packaged and delivered by center.
“So, did we have extra ballots at the end of the day? Sure,
but not as many as one might expect.”
As to the vote centers themselves, the type of location varies
throughout the county, depending on population density.
In tiny Red Feather Lakes, 50 miles from busy Fort Collins
and surrounded by the huge Roosevelt National Forest, a
small library or firehouse is an appropriate vote center. “In
town here, where we’re going to see several thousand voters,
we look for 2,500 square feet,” Doyle said. “So that means
government buildings, megachurches, strip malls.” Colorado
State University, not far from the clerk’s office, regularly
donates a ballroom for use throughout the election season,
including early voting and Election Day itself.
In Larimer, the question of the proper location and
distribution of the vote centers did arise—not from the
voters, but from political parties. “I don’t compromise
any of that stuff,” Doyle said. “I go by the numbers, not
by the affiliation.”
In addition to vote centers, Larimer uses another voter-friendly
device. “We call it permanent mail voter,” said Doyle, now
retired. “You request it once and you’re a permanent mail
voter. They go out 18 to 22 days in advance.”
Larimer’s turnout statistics for the 2008 presidential election
seem to show that the combination of the two concepts is
working. Out of 181,832 active voters, a total of 167,292
actually turned out. But far more of them turned out by mail
than in person at the 33 vote centers the county used that year.
The total turnout at the vote centers was 25,130. So it’s pretty
clear that getting a ballot delivered by mail to the home every
year beats even the convenience of the no-wrong-door vote
centers. One of the leading examples of the vote-by-mail
paradigm is the State of Oregon, where voters approved the
idea by referendum in 1998.
. 23 .
. 25 .
The voters of Oregon have embraced a way of voting
that eliminates the need for local polling places and
relies entirely on mailed ballots. “We were the first
state in the nation to go all vote-by-mail,” said Josh Goldberg,
policy assistant to current Oregon Secretary of State Kate Brown.
But getting there wasn’t instantaneous or easy.
The movement to change the way Oregonians vote can be traced to
a casual conversation in the Oregon capitol building and to a tiny
election in one small corner of the state, at the start of the eighties.
Linn County Clerk Del Riley was sitting in the capitol’s coffee
shop with State Senator John Powell, and the subject of sample
ballots came up, as a way of making it easier for voters to
understand what was at stake in an election. “ ‘Why don’t you guys
send out sample ballots by mail?’ ” Riley recalls Powell asking. “I
thought, ‘Why go to all that expense of sample ballots? Why not
just send the ballots?’ ” So he talked to three other county clerks
about his idea. “They were not interested. I still let it be known in
our clerks’ association that I was still very, very interested.”
At about the same time, Oregon Secretary of State Norma Paulus
was also keenly interested in improving voter turnout. A key
factor in that was an astonishingly low turnout in an election in one
Linn County school district. District residents were asked to vote
on approving a fiscal issue, and a grand total of two people voted.
The proposal was approved, 2-0.
“So, when Secretary Paulus saw the election results, that a $2 million
bond measure had passed, and only two people had participated,
one of her greatest fears as secretary of state had almost come true,”
Goldberg said. “Her greatest fear was that an election would be
held, and no one would show up. I mean, it’s a rather amazing
story.” And Paulus told it often, even including it prominently in
the voters’ guide that her office published.
The interest of Paulus and Riley in mail voting intersected
when her office brought to his attention an historic vote-by-mail
election about to take place in San Diego, on May 6, 1981.
“They were sending a team down themselves, and they asked me
if I would be interested in going,” Riley recalled. “We took a
vacation, my wife and I, and off we went.” In addition to Riley, the
delegation from Oregon included two state representatives, a top
aide to Paulus, and the county clerk from Multnomah County.
In San Diego, Riley asked for and received permission from local
election officials to actually work in the vote-by-mail election
at multiple levels. “That’s where I really got the feel for that
thing,” Riley said. The election attracted national attention,
including a crew from CBS News, who interviewed Riley and
featured his comments on their national report. At the time, it was
the largest vote-by-mail election ever held in the nation. The issue
was whether to authorize bonds to build a new convention center.
The voters rejected the bonds, but they seemed to embrace the
method of casting their ballot. In all, 261,433 voters filed ballots
by mail, a record turnout for San Diego. Despite the huge turnout,
the election only cost $328,000, about half of the $600,000 that a
regular polling place election would have cost.
At the time of that San Diego vote, Gary Greenhalgh, an official at
the Federal Elections Commission, was quoted as saying: “The idea
has caught on. San Diego is going to be copied. It may take time,
but it’s going to be copied.”
In Linn County, Riley recalls, the first pilot vote-by-mail election,
in a school district, produced a 77 percent turnout. “Then the cry
was, remember the election where we only had two people vote,”
he said. But the idea didn’t even have unanimous support
among his staff. One of them, Steve Druckenmiller, recalls
discussing vote-by-mail with Riley back then. “I was outraged
when Del did the first vote-by-mail,” said Druckenmiller, who
succeeded Riley as county clerk in 1987. “I thought this was going
to be nothing but corruption. I said, ‘It stinks, sir,’ and he still
hired me.”
VOTE-BY-MAIL
In Multnomah County, in a vote-by-mail election on ballot issues,
including term limits, voters set a record for a special election:
More than 55 percent of the 289,680 voters actually sent in their
mail ballots.
Despite the early successes of vote-by-mail in limited local elections,
it took years for the idea to take hold statewide.
At the end of the eighties, there was an effort to pass a bill extending
the vote-by-mail law beyond special elections to both primary and
general elections. One of those who voted against it was a young
Democrat from Portland, a former journalist, State Rep. Phil
Keisling. Looking back on it now, he recalls that his vote was based
on “just sheer sentimentality,” a devotion to autumn rituals: the
crunch of leaves underfoot on the way to the polls, the chance to
chat with neighbors. But in the nineties, after he became Oregon’s
secretary of state, he became not only a proponent of vote by
mail, but a fierce advocate.
The crucial year was 1995.
“In June 1995, we got the legislature to pass a vote-by-mail
bill, only to see it vetoed by our Democratic governor,” Keisling
recalled. “The Democratic National Committee was lobbying
to get it vetoed. They saw it as a Republican effort.” President
Bill Clinton is even reported to have weighed in against it. In
the end, Keisling suspected, Gov. John Kitzhaber’s veto was rooted
in some of the same crunch-of-autumn-leaves sentimentality
that had motivated Keisling to vote against a vote-by-mail bill
as a legislator.
That September, a flash of political lightning shed a whole new
light on vote-by-mail. After months of stories about sexual
harassment allegations against him, Oregon Sen. Bob Packwood
resigned. That set the stage for a special election. The
vote-by-mail law, as it then existed, gave Keisling the power
to push for the special election to be held by mail. The result
was the first balloting in congressional history held entirely by
mail, and the first opportunity for Oregonians to vote that way for
a statewide candidate.
The final election, between Rep. Ron Wyden, a liberal Democrat,
and Gordon Smith, a conservative Republican businessman,
allowed Oregonians to vote by mail between January 9 and January 30.
The result was a narrow win for Wyden and an overwhelming
turnout—better than 65 percent of registered voters—that set a
record for a special election in Oregon. The vote-by-mail also saved
the state about $1 million, compared to what a normal election
would have cost.
Then, in 1998, Keisling and other supporters of broadening the
vote-by-mail law managed to get a vote-by-mail question on
the ballot. By then, Oregonians were pretty well accustomed to
limited vote-by-mail, one way or another. “In 1998, when we were
actively seeking signatures to get it on the ballot, we’d reached the
point where 60 percent of the votes were coming in by absentee
ballots,” Keisling said. “Poll workers were about as lonely as the
Maytag repair people.”
So 70 percent of the voters approved vote-by-mail, which effectively
did away with the system of local polling places and made Oregon
a fully vote-by-mail state. It had taken almost two decades from
the germination of the idea in the minds of Del Riley and Norma
Paulus. But now it was the law of the state. And Keisling,
who once voted against widening vote-by-mail in the Oregon
legislature, can’t restrain his enthusiasm for it.
“Election reforms are seen through highly partisan lenses. ‘Is this
good for my tribe or bad for my tribe?’ ” said Keisling, who is
now the director of the Center for Public Service in the Mark O.
Hatfield School of Government at Portland State University. “The
reason I think it has really taken hold in Oregon is we were able to
get people on both sides to say, ‘This is about me and my right to
vote, and my being able to cast a quality vote, an informed vote.’ ”
. 26 .
“It saves money,” Keisling said. “What people will tell you is,
‘I can vote a more informed ballot, I can sit down. I can go to the
Internet.’ They can sit at their kitchen and dining room table and
look at it.”
Oregon now has no voting machines, aside from a few for voters
with disabilities. About 2.2 million voters receive ballots in the
mail 15 days before the election. That expectation, that citizens
are entitled to have the government deliver their ballots to them,
is the feature of the system that Keisling now emphasizes. He calls
it “universal ballot delivery,” more than vote-by-mail. The vast
majority of voters send their ballots back by mail. Some choose to
drop them off in person at a county elections office.
The state has a robust system for validating the authenticity
of vote-by-mail ballots. “We collect signatures from the voter
registration card (or the DMV if they register online) and compare
every single signature to every ballot,” said Josh Goldberg, the
current secretary of state’s policy assistant. “The same firm
that trains the Oregon State Police in identity theft and fraud also
trains our elections workers.”
Goldberg points out that those who administer Oregon’s vote-by-
mail ballots rely on a central voter registration database. “We need
to be able to confirm the mailing address and ensure that each
person receives one ballot and votes once,” Goldberg said. “The
way this works in Oregon is through a bar code. Each ballot has
a unique bar code, so we can confirm who each ballot was sent to.
We compare it with the signature we have on file.”
Still, some have raised a concern about “ballot parties,” mass voting
directed by interest groups. “They raise the specter of the union
leaders calling people into the union hall and saying, ‘Bring your
ballot, and I’m going to tell you how to vote,’ ” Keisling said. The
same suspicion can be voiced about other entities, such as corporations
or nursing homes. “In my nine years as secretary of state, I heard
a lot of these urban myths, but I didn’t get a single complaint.”
There are also concerns that spousal abuse could affect voting.
“They’re easy to allege, and you can’t disprove a negative,” Keisling
said, but he can’t recall a case where something like this has even
been alleged. For Del Riley, the theoretical threat of ballot parties is
no more than “a bunch of baloney.” Goldberg simply calls it a myth.
What has been real about vote-by-mail is sharply higher voter
participation. We’ve already cited the vote in one school district
where a grand total of two persons turned out to vote on a fiscal
issue, and it passed. In another district, Riley said, residents voted
five different times on a tax levy. In the first four, voters went to
their precincts to cast their ballots, but many stayed home. So the
turnout was light. And in those first four elections, the levy went
down to defeat. In the final election of the five, the method of
balloting was vote-by-mail. It produced a 92 percent turnout, and
the voters approved the levy. Nobody likes taxes, but there’s little
question that a tax levy approved by 92 percent of the voters in one
district, with the aid of vote-by-mail, is distinctly more democratic
than spending approved by only two voters at a single polling place
in another district.
The current clerk of Linn County, who deeply distrusted vote-
by-mail when he was joining Riley’s staff, looks back now at the
system that Riley pioneered two decades ago and sees a historic
innovation. “He changed the face of Oregon elections for the better,”
Steve Druckenmiller declared, happily admitting the error of his
original skepticism. “When I am wrong,” he said, “I am wrong really
big.” In March 2013, he completed his 116th vote-by-mail election,
and he said that’s “the most conducted by anyone anywhere.”
Still, it’s not a perfect system in Oregon. “Oregon has 25 percent of
its population who don’t even register,” Keisling said. “In Oregon,
we’ve got to do a better job of understanding how many people
aren’t registering.” And some regret the loss of privacy involved
—and the accompanying risk of coercion—but not enough to give
up a form of voting that they have come to like.
. 27 .
Miles Rapoport of Demos, who served as secretary of state in
Connecticut, has shared his concerns with Keisling. “Vote-by-mail
is obviously a wonderful convenience for people who have already
registered and are at the same address,” Rapoport said. “But that’s
a partial and skewed fraction of the eligible voters. Two classes of
people it doesn’t help: people not registered and people who move
frequently.” His own experience with frequent movers dates back
to his days going from door to door. “There were plenty of doors that
don’t have names or mailboxes.” But Keisling points out that Oregon
has developed a system for forwarding bounced-back ballots to voters
who have moved—in time for the election. Rapoport also argued
for a broader effort on registration. “What I said to Phil is that
the only thing you can do is to accompany it with an early voting
period and have same-day registration,” Rapoport said. “He sort
of generally agreed.”
Though same-day registration is still over the horizon, current
Oregon Secretary of State Kate Brown has championed legislation
that would modernize the voter registration system in another way.
Under that bill, whenever a state agency, such as the DMV, receives
three pieces of information—proof of citizenship, residency, and age
information—as well as a digital copy of a signature, the secretary
of state will automatically register that person to vote and send
a postcard informing the citizen how to affiliate with a party. If
people prefer to opt out, they can simply sign the postage-paid
card and send it back in. Brown anticipates that this would register
approximately 500,000 Oregonians who are eligible but not yet
registered to vote.
Those who actually are registered and regularly using vote-by-mail
in Oregon are happy with their system. But it hasn’t gotten as
much traction outside the state as Keisling would have liked.
“No one has followed our lead, other than Washington—and now
Colorado,” Keisling said. “In some states, it has come close but has
been rejected. Republicans understand why they really hate universal
ballot delivery. Democrats haven’t figured out why they ought to
be champions of it. This fascinates me.”
But vote-by-mail has taken another step forward. In May 2013,
Gov. John Hickenlooper signed the Colorado Voter Access
and Modernized Elections Act, which provides for mailing ballots
to all voters. They can either send the ballots back by mail or return
them to vote centers. It also allows for Election Day registration.
In Oregon, Secretary of State Kate Brown—like her predecessor,
Bill Bradbury, and Keisling before him—is a strong believer in
vote-by-mail. “Actually, we’re in conversations with other states
now, like Hawaii, who are considering vote-by-mail,” said Goldberg,
her policy assistant. Brown wrote a letter in support of the idea in
2011, when the Tucson City Council was considering moving from
a hybrid system to complete vote-by-mail. The council adopted
the idea, and the Arizona city held its first election under the new
system later that year.
The prospects for vote-by-mail in New York are not good. First,
there’s the language in the constitution describing the conditions
for getting an absentee ballot. It can be argued that vote-by-mail
is, in effect, excuse-free absentee ballot voting and that adopting
it here would require a constitutional amendment to remove
the conditions. But Druckenmiller said that isn’t necessarily so.
Oregon does have absentee ballots, which can be mailed to voters
earlier than the normal mailed ballots go out, but he doesn’t
consider the system as a whole an absentee ballot system.
So he suspects that, if New York lawmakers crafted vote-
by-mail legislation the right way, it could be drawn so as not to
conflict with our state constitution.
Another obstacle to vote-by-mail might well be political leaders,
who enjoy giving out poll worker jobs as minor plums. Vote-
by-mail clearly poses a threat to this source of patronage, since it
drastically reduces or eliminates polling places. Still, as Robert
Stein of Rice University said, voters like their convenience. That
makes it an idea worth keeping an eye on for the long term.
. 28 .
. 29 .
Voting rights advocates clearly want people to be able
to take advantage of the speed and accessibility of the
Internet for such purposes as keeping their registration
up to date and checking on the location of their polling place. So
it would seem logical that we’d also want people to be able to use
the Internet for the ultimate voting purpose: returning a completed
ballot to election officials.
Not so fast.
Two national voting-rights organizations, Common Cause and
Verified Voting, are working hard to stop the march toward online
voting, because they believe the Internet is not yet a secure enough
environment to make sure that votes get counted properly, without
any possibility of elections being hijacked by tampering.
The simple-sounding argument in favor of online voting is this:
“If we can bank online, we should be able to vote online, shouldn’t
we?” Actually, no. Banking and voting are fundamentally different.
For bank customers, online banking undeniably provides
convenience—the opportunity to do a transaction as easily
from a golf course as from a bank building. For the larcenously
computer-savvy among us, however, electronic banking provides
a wide-open opportunity for electronic fraud. Banks and online
retailers don’t like losing money to cyber thieves, but they
pretty much expect a certain amount of this theft as a cost of
doing business. In other words, banking is a function of our society
that can live with insecure systems. Voting is not. There has to be
absolutely zero tolerance for electronically manipulated elections.
“If our voting systems fail us, voters lose heart in the whole
process,” said Pamela Smith, president of Verified Voting, a
nonpartisan, nonprofit organization whose aim is to safeguard
elections in our digital age. “Here’s the thing: Voting just has
to work.”
But there’s pretty good evidence that electronic voting won’t
work. Edward Felten, director of Princeton University’s Center for
Information Technology Policy, cited a 2010 experience in the
city of Washington, DC. The district’s Board of Elections and
Ethics wanted to try out electronic voting for overseas voters. To its
credit, the board decided to start with a mock election, essentially
inviting hackers to do their worst, in an election that would not
count. A former student of Felten, J. Alex Halderman, an
assistant professor of electrical engineering and computer
science at the University of Michigan in Ann Arbor, took up
the challenge.
It didn’t take long for Halderman and his team to subvert that
election. “Within 48 hours of the system going live, we had gained
near complete control of the election server,” said a scholarly paper
that Halderman and three associates wrote. “We successfully
changed every vote and revealed almost every secret ballot. Election
officials did not detect our intrusion for nearly two business days—
and might have remained unaware for far longer had we not
deliberately left a prominent clue.” The clue was “The Victors,”
the University of Michigan’s fight song, playing on the system’s
confirmation page. It was, in effect, an anthem for a stolen election.
Happily, that election didn’t count. But the experience led
Halderman to conclude that trying to conduct a real election
online—now or at any time in the near future—would be a
perilous enterprise.
“It will probably be decades, if ever, before we can program
voting safely over the Internet,” Halderman said. For a fuller idea
of Halderman’s views, see his online course, “Securing Digital
Democracy,” at https://www.coursera.org/course/digitaldemocracy.
ONLINE VOTING
Despite the dangers, 31 states have adopted some sort of
electronic voting, for overseas and military voters. “The vast
majority of those 31 states merely allow for ballot return by
email or fax under some circumstances,” Halderman said.
“Either method raises serious security and privacy concerns,
but I think those dangers are somewhat less severe than in
the case of full-blown, website-based Internet voting.”
The Department of Defense’s Federal Voting Assistance
Program has been a major factor in that expansion. The
FVAP wants to improve the ability of military voters to
cast their ballots—a laudable goal. Unfortunately, the
agency chose to reach that goal by nudging states toward
Internet voting, and sweetening the deal by distributing $50
million to buy the systems. That gives Internet voting
a virtual DoD seal of approval, leading proponents of this
method to argue: “If it weren’t safe, they wouldn’t do it.”
Of course, vendors are eager to sell these systems to the
states, and many in the public want Internet voting, based
in part on the false and dangerous banking-voting analogy.
So, even though the FVAP has backed down to some extent,
the drive for Internet
voting is still alive.
Despite the problems,
the understandable
desire to “help the
troops” and the
aggressive marketing
of vendors keep
it breathing.
To protect public
confidence in our
voting system,
advocates are going to
have to find a way to
slow down this trend
until someone actually devises a truly secure method of
delivering completed ballots on the Internet. As Halderman’s
hijacking of an entire election in Washington demonstrated,
that day is still a long way off.
. 30 .
VENDORS ARE EAGER TO SELL THESE SYSTEMS TO THE STATES, AND MANY IN THE PUBLIC WANT INTERNET VOTING, BASED IN PART ON THE FALSE AND DANGEROUS BANKING-VOTING ANALOGY.
. 31 .
Whatever Albany may or may not eventually agree to
do about expanding voter participation, there are
things that the counties can do to make the voting
experience better. Here are a few of the items that should be on a
county-level agenda.
SETTING PERFORMANCE BENCHMARKS. In the New York City Council,
Councilmember Brad Lander has sponsored legislation that
would require the New York City Board of Elections to make annual
reports on its performance. The reports would be in the framework
of the Mayor’s Management Report, a tool mandated by the City
Charter to measure the effectiveness of city agencies. The Board of
Elections has balked at this accountability measure, maintaining
that it is a state agency, not answerable to the mayor, but only to
the City Council. But Section 3-212 of the New York State Election
Law provides: “Each board of elections shall make an annual report
of its affairs and proceedings to its local legislative body once every
twelve months and no later than the last day of January in any
year.” There should be room within that provision for local
legislative bodies, such as the New York City Council and county
legislatures across the state, to specify the metrics they want the
required annual report to contain.
BETTER TRAINING FOR POLL WORKERS. In the City of New York,
Citizens Union argues, “The courses for poll worker training
rely on an instructor largely reading for six straight hours from
an overly lengthy 200-page manual. The City Board should hire
educational professionals, create an interactive online course
that enables prospective poll workers to go at their own pace
through the manual, with intermittent testing to ensure compre-
hension before proceeding to the next chapter.” Clearly, the way
to go is to use a request for proposals process to identify and hire
highly competent professional trainers, with no connection to the
political parties, ask them to analyze the tasks of poll workers and
produce suitable training and testing to make sure workers can
accomplish those tasks. The testing needs to be fair and rigorous,
screening out those who don’t have the aptitude for the work. Once
poll workers are better trained and better able to run elections
smoothly, the public won’t oppose paying them better, which will
further enhance the quality of those willing to do this work.
BETTER POLLING PLACE ORGANIZATION. The bottlenecks that cause
delays often involve the entry to the polling place, the point where
voters go to learn where to find their specific election district within
the larger polling place.
BETTER VOTER
NOTIFICATION.
If boards of elections
make a stronger effort
to collect voters’ email
addresses, on registration
forms and through
a variety of outreach
methods, they will be
better able to keep voters
aware. The boards could
send out routine email
reminders about the date
and voting times of an
approaching election. In
the case of an emergency, such as superstorm Sandy, the boards could
use email to notify voters of any change in the location where they
will be voting. For those voters who don’t have email, the boards
should make a similar effort to acquire their phone numbers, so that
boards can call them with changes and reminders.
COUNTY AGENDA
ONCE POLL WORKERS ARE BETTER TRAINED AND BETTER ABLE TO RUN ELECTIONS SMOOTHLY, THE PUBLIC WON’T OPPOSE PAYING THEM BETTER, WHICH WILL FURTHER ENHANCE THE QUALITY OF THOSE WILLING TO DO THIS WORK.
Given New York’s retrograde position on voting
issues, it’s easy to be pessimistic about the chances
for voting reform. But at the start of 2013, there
was some hope for campaign finance reform.
“The bigger opportunity has been elsewhere, not in New York,
outside of campaign finance reform,” said Steven Carbó, the state
advocacy director at Demos. The bulk of its advocacy is national
in scope. But Demos and other advocates invested a lot of hope
in the real possibility of reducing the corrosive power of money
in politics. “I think there’s a good chance on a public campaign
financing bill,” said Miles Rapoport, president of Demos, early in
the 2013 legislative session. “Beyond that, I’m not sure.”
There was a palpable sense of that hope at a gathering sponsored
by the Piper Fund in January 2013 to strategize about campaign
finance reform. It brought together funders, advocates for voting
rights and civil rights, and key public officials, including the
state’s attorney general.
“We have never had an opportunity as good as the one we have
right now to make a difference in the national debate,” New York
Attorney General Eric Schneiderman said at the Piper event. “It
was always difficult to get people really agitated about this.
Legislators were told it’s not a lunch-bucket issue. Incumbents in
both parties do not like to change a system that they’ve had success
in. We’re in a very different position now.” And Michael Waldman
of the Brennan Center for Justice, who has been working on election
issues for three decades, put it this way: “We’re really on the
knife’s edge here.”
Gov. Andrew M. Cuomo, Speaker Sheldon Silver and Sen.
Jeffrey Klein, the leader of the Independent Democratic Conference,
have all said they want to do campaign finance reform. In fact,
Cuomo has said it in all three of his State of the State messages.
Unlike voting rights issues such as ballot redesign and early voting,
which appeared in the book accompanying the State of the State
but didn’t get mentioned in the speech itself, the words “campaign
finance reform” actually emerged from the governor’s mouth as he
stood before the legislators and laid out his program for 2013.
Cuomo assured a group of emissaries after the Piper Find event that
campaign finance reform was a top priority for him, after passage
of the state budget. And in March, on a conference call with more
than 1,300 activists, the governor repeated his commitment
to finance reform. “To me, it’s one of the most important issues
to complete,” Cuomo said. “We’re trying to get it passed this year
in the legislative session.”
Another sign of hope was a possible shift in public attitudes,
which some advocates detected in the results of an upstate election
for State Senate. The candidates were a Republican member of
Assembly, George Amedore, and a Democrat, Cecilia Tkaczyk
(pronounced CATCH-ik), a first-time candidate. In redrawing
Senate district lines, the Republican majority tailored this district
specifically to benefit Amedore. It should have been an easy win.
Then something totally unexpected happened: The pivotal issue
in the race became public campaign financing. The Friends of
Democracy PAC had weighed in on Tkaczyk’s side, which annoyed
her opponent. “The real gift came from George Amedore, who
spent the last weeks attacking her for her support for citizen-funded
elections,” said Jonathan Soros, of Friends of Democracy. “The real
distinction between them became citizen-funded elections.”
In the end, Tkaczyk won by 18 votes. Soros, Marc Caplan of the
Piper Fund, and others saw in that outcome dramatic significance
for the whole issue of public campaign financing. “What it shows is
that this idea that there isn’t hunger out there for this issue is just
wrong,” Soros said.
So, an unexpected election outcome, repeated pledges of support
from the governor, and the enthusiasm of advocates made 2013
seem like a year when real, meaningful public campaign finance
. 33 .
MONEY IN POLITICS
. 34 .
would be possible in New York. But everyone knew it wouldn’t
be easy. “This is the heaviest lift there is in politics,” said
Dan Cantor, executive director of the Working Families Party.
An equally heavy lift may be the effort to coordinate the energy of
advocates so that the struggle for one reform—money in politics
—does not stand in the way of other voting rights reforms, such as
early voting and pre-registration.
Many believe that reforming the way we vote will take time.
“Voting rights is a longer-term piece,” said Karen Scharff,
executive director of Citizen Action of New York, early in the
year. “Even if they do something on early voting this year, it will be
something small. We should put together an ambitious voting
rights coalition that gets organized and formed this year for next
session. It will take a strong and broad coalition to win real reform.”
Long-term planning is vital. But it seemed critically important
that we seize the opportunity that lay in front of us right now, in
2013. “We’re at this different moment now,” Scharff said, speaking
specifically of public campaign financing. Michael Waldman of
the Brennan Center for Justice put it this way: “We’re really on the
knife’s edge here.” Miles Rapoport called this “a new moment.” The
Greeks would call it a kairos, a hinge time, propitious and ripe for
healthy change. Sadly, as it turned out, the 2013 legislative session
produced nothing in the way of real reform in the areas of registration
and expanding voter participation. So what’s needed is to build
momentum for the longer-term effort to make it easier for New
Yorkers to register and vote.
That’s the challenge to the New York Civic Engagement Table: to
weigh the political realities of the moment, see clearly the long-term
changes that are needed in the way New Yorkers choose their leaders,
and put together a smart, cohesive plan for getting there. That exercise
requires that advocates keep in mind big ideas—such as a national
right-to-vote constitutional amendment, Voter Empowerment Act
legislation at the federal and state levels, and national and state
standards for how election boards should perform.
There’s so much that needs doing—a challenging, exciting agenda
for both voting rights advocates and reform-minded legislators.
We need to make ballots simpler to read and mark; to train and test
poll workers better; to apply meaningful metrics to the performance
of boards of election; to come up with rational state or federal
standards for the equitable
distribution of voting
machines; to find a way
of replacing the partisan
duopoly at boards
of elections with
professional, apolitical
civil servants. That
would be a huge step
toward making elections
run more smoothly, to
honor with efficiency
and dignity the
commitment our citizens
make by turning out
to cast their ballot.
And advocates should
also make a commitment
to the voting rights of a population that doesn’t get discussed
much: persons who have been convicted of felonies and have
served their time. Happily, New York is not one of the four
nasty states that forever disenfranchise anyone convicted of a
felony. Unfortunately, though, New York is not as enlightened
as Maine or Vermont, which never deprive convicted felons of
the right to vote. Our state law says you get to resume voting as
soon as you finish your parole. What’s needed is a change in that
law so that those convicted of a felony regain their right to vote
as soon as they leave custody—instead of having to wait until they
complete their post-custody parole obligation. And we have to do
a better job of making sure that workers at our boards of election
WHAT’S NEEDED IS A CHANGE IN THAT LAW SO THAT THOSE CONVICTED OF A FELONY REGAIN THEIR RIGHT TO VOTE AS SOON AS THEY LEAVE CUSTODY—INSTEAD OF HAVING TO WAIT UNTIL THEY COMPLETE THEIR POST-CUSTODY PAROLE OBLIGATION.
actually understand what the law is. A Brennan Center for Justice
study by Erika Wood and Rachel Bloom in 2008 showed that too
many election workers simply don’t understand what the law is,
and they unnecessarily deprive eligible people of their actual right to
vote. As the study put it:
“De facto disenfranchisement has devastating long-term effects in
communities across the country. Once a single local election official
misinforms a citizen that he is not eligible to vote because of a past
conviction, it is unlikely that citizen will ever follow up or make a
second inquiry. Without further public education or outreach, the
citizen will mistakenly believe that he is ineligible to vote for years,
decades, or maybe the rest of his life. And that same citizen may
pass along that same inaccurate information to his peers, family
members and neighbors, creating a lasting ripple of de facto
disenfranchisement across his community.”
We’re not helping people who have committed serious crimes to
become functional parts of the community if we needlessly delay
their full participation in the community’s electoral decisions about
its future. We need them to vote.
That group, of course, is just a tiny subset of the broader population.
But the basic principle is the same: We need more people voting,
not fewer. That means making the whole process more voter-friendly,
from registration to casting the actual ballot.
That’s the work that lies ahead of voting rights advocates in New
York—a work that requires strategic thinking, hard bargaining,
and a long-term persistence that emulates the people of Oregon
and their long march to vote-by-mail. That may not be the form of
voting New Yorkers choose, but there’s a useful lesson in the way
Oregonians kept at it for years, until they got the kind of balloting
they wanted.
It’s also important to remember the persistence of Judith Browne
Dianis and her neighbors at the Oxon Hill Library in Prince
George’s County, standing in line for up to seven hours, huddled
against the cold, discussing the issues of the day, and making voting
a communal activity, filled with care for one another and with a
sense of mutual responsibility.
That should be a consoling vision for voting reform advocates,
at a time when the state is coping with the latest Albany scandals
—from a corrupt attempt to buy the Republican line in the
election for mayor of the City of New York, to good old-fashioned
embezzlement to raise money for a run for district attorney. What
we know is that this story is profoundly unsettling. What we also
know is that the scandal did not provide enough motivation to
produce voting rights reform—for now.
It’s sadly symbolic that the only major bill on voting that the full
State Legislature passed in 2013 was not a bold leap into the future,
but a timid return to the past. The roots of this action lay in
fears about the September 10 mayoral primary. The legion
of mayoral candidates made it seem likely that no one would
win 40 percent of the votes in the primary. So the city would
have to hold a runoff two weeks later. But the city’s Board
of Elections felt it could not count optical scanner ballots after
the primary fast enough to be ready for the runoff election. So the
legislature voted to postpone the runoff one week, to October 1,
and to authorize the board to drag the old lever machines out
of storage and use them. During debate on the bill, the Senate
narrowly rejected an amendment that would have created a state
public campaign financing system.
In summary, that is all the legislature really did about voting this
year. Whatever it may be, it is clearly not reform.
At this moment, as advocates reflect on a deeply disappointing
legislative session and prepare for a long-term struggle to overcome
the forces of inertia on these issues, the words of Tova Andrea Wang
are important. We said it above, but it’s worth repeating:
“Our democracy will only be a true democracy when the full range of voices
and interests have an equal opportunity to be heard and heeded.”
. 35 .
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