Democracy & Justice: Collected Writings, Vol. VII

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FIXING THE VOTEWendy Weiser, Michael Waldman,Myrna Prez, Diana Kasdan

CONGRESS AND THECRISIS IN THE COURTS

Alicia Bannon

REFORMS TO CURBMASS INCARCERATIONInimai Chettiar, Lauren-Brooke Eisen,Nicole Fortier

NATIONAL SECURITY,

LOCAL POLICEMichael Price

PLUS:

DEMOCRACY TODAYBill Moyers

MONEYBALL FORCRIMINAL JUSTICEPeter Orszag

ON POLITICAL POLARIZATIONRichard Pildes, Monica Youn,Robert Bauer, Benjamin Ginsberg

WILL SOCIAL MEDIACHANGE OUR POLITICS?

Walter Shapiro

THE LIES WE TELL ABOUTTHE RIGHT TO COUNSEL

Andrew Cohen

AN INNOVATION MOMENTFOR CAMPAIGN REFORMGov. Andrew Cuomo, AG EricSchneiderman, Lawrence Norden,Rep. Chris Van Hollen, Lawrence Lessig


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2 Brennan Center for Justice

2014. Tis paper is covered by the Creative Commons Attribution-No Derivs-NonCommercial

license (see http://creativecommons.org). It may be reproduced in its entirety as long as the BrennanCenter is credited, a link to the Centers web page is provided, and no charge is imposed. Te paper maynot be reproduced in part or in altered form, or if a fee is charged, without the Centers permission.Please let the Brennan Center know if you reprint.

The Brennan Center for Justice at NYU School of Law

Te Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that seeks

to improve our systems of democracy and justice. We work to hold our political institutions and lawsaccountable to the twin American ideals of democracy and equal justice for all. Te Centers work ranges

from voting rights to campaign finance reform, from racial justice in criminal law to Constitutional

protection in the fight against terrorism. A singular institution part think tank, part public interest

law firm, part advocacy group, part communications hub the Brennan Center seeks meaningful,

measurable change in the systems by which our nation is governed.

About Democracy & Justice: Collected Writings 2013

Te material in this volume is excerpted from Brennan Center reports, policy proposals, and issue briefs.

Weve also excerpted material from public remarks, legal briefs, congressional testimony, and op-ed

pieces written by Brennan Center staff in 2013. Te volume was compiled and edited by Jeanine Plant-

Chirlin, Jim Lyons, Erik Opsal, and Kimberly Lubrano. For a full version of any material printed herein,

complete with footnotes, please email [email protected].


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1

Our political systems long slide toward dysunction tipped into crisis in 2013. Amid shutdowns and debt ceil-ing drama, or the first time, government dysunction ranked highest among Americans concerns about the

well-being o our nation.

So we have to do what Americans have done every time our institutions all short o our values. We cant justcomplain. Despite filibustering and gerrymandering, Super PACs and shutdowns we can do better.

Tats where the Brennan Center or Justice comes in. We start with research. We communicate widely. We crareorms. And we fight or them in court. Tats the way Americans have always made legal change.

Over the past ew years, the Brennan Center has become one o Americas most effective nonpartisan voices ordemocracy and justice. When we have to, we fight to deend our values. Hours aer the Supreme Court guttedthe Voting Rights Act, states across the country erupted in a estival o voter suppression. We are fighting back.

But deensive fights even deensive victories are not enough. More than ever: I we dont fix our systems,we wont solve our problems.

Tis is the Brennan Centers next great mission. We aim to become the dynamic center o a new generation oreorm ideas. And were off to a great start.

Our voter registration modernization proposal would guarantee that every eligible American could vote.Nine states enacted parts o our plan in 2013. Our proposal or an independent oversight or the NYPDis now law. In New York State, we came within one vote o passing small donor public financing and com-

prehensive reorm. And Te Washington Posthailed our smart plan to reorm ederal unding to reducemass incarceration.

Tis volume offers a sample o this great work rom 2013.

We are continuing the fight in 2014. Already, our voting reorms have seen bipartisan consensus in o all places Washington, D.C. In January, lawmakers introduced a bipartisan bill to strengthen the Voting Rights Act.

One week later, President Obamas voting commission released new ideas to improve access to the ballot box. InNew York, Gov. Andrew Cuomo included public financing in this years state budget.

We take our charge rom Justice Brennan and his notion o the living constitution which, at its heart, reflectsthe core values o our Declaration o Independence that we are all created equal. Every day, our works seeksto hold America accountable to that undamental ideal.

Michael WaldmanPresident

Introduction from the

President


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Democracy & Justice: Collected Writings 2013

Table of Contents

Democracy and Justice Today 5

Tat Sound You Hear is the Shredding o the Social Contract 6Bill Moyers

Voting Reform 11

Playing Offense: An Aggressive Voting Rights Agenda 12Michael Waldman

Early Voting: What Works 18Diana Kasdan

Modernizing Voting: States in the Lead 24Wendy Weiser, Hon. Ross James Miller, Hon. Alvin A. Jaeger,Hon. Kate Brown, Hon. Mark Ritchie, and Beverly Hudnut

Breakthrough Reorm in Colorado 28Myrna Prez and Jonathan Brater

Presidential Panel Can Modernize Elections 30Wendy Weiser and Jonathan Brater

Virginias Step Forward on Restoring Rights 36Carson Whitelemons

Money in Politics 37

Will Social Media ransorm Politics? 38Walter Shapiro

Albanys ax Break Racket 40Lawrence Norden and Ian Vandewalker

Bring Small Donor Matching Funds to New York State 42Gov. Andrew Cuomo (D-N.Y.)

Special Interest Spending Swamps Judicial Elections 46Alicia Bannon

Restoring the Voters rust in NYS Government 48Peter L. Zimroth

Sunshine or Nonprofits 50New York State Attorney General Eric Schneiderman


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Bringing Dark Money to Light 53Rep. Chris Van Hollen (D-Md.)

Tink Citizens UnitedWas Bad? Wait. It Could Get Worse. 57

Lawrence NordenUnderstanding rue Corruption 59Pro. Lawrence Lessig

What We Can Learn om Nixons Milk Money 63Ciara orres-Spelliscy

Voting Rights at Risk 65

A Decision as Lamentable as Plessyor Dred Scott 66Andrew Cohen

Voting Rights: Te Courts Must Step In 70

Congress Must Move on Voting Rights Act 74Myrna Prez

Challenging Voter Registration Restrictions 76

Government Dysfunction & the Courts 79

Political Polarization: Te Great Divide 80

Michael Waldman, Monica Youn, Robert Bauer, Benjamin Ginsberg,Samuel Issacharoff, Richard Pildes, and Sean Cairncross

Congressional Dysunction Yields a Crisis in the Courts 85Alicia Bannon

Te Virtual Filibuster 87Burt Neuborne

Why Gerrymandering Doesnt Explain Congressional Extremism 90Walter Shapiro

Why the Senate Went Nuclear on Filibusters 93Victoria Bassetti

A Modest Proposal or Senate Blue Slips 95Andrew Cohen

Te Strange Alchemy o Lie and Law 97Justice Albert Albie Louis Sachs

Mass Incarceration 101

Moneyball or Criminal Justice 102Peter Orszag


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Reducing Mass Incarceration: Move to Success-Oriented Funding 104Inimai M. Chettiar, Lauren-Brooke Eisen, Nicole Fortier,and imothy Ross

Te Lies We ell About the Right to Counsel 108Andrew Cohen

Ending Mass Incarceration is Pro-Growth and Pro-Family 110Inimai M. Chettiar

Incarceration is Only the Beginnning 111Lauren-Brooke Eisen

o Reduce Recidivism, a Bright Idea om Caliornia 112Andrew Cohen

Te Promise o Equal Justice Rings Hollow 114Nicole Austin-Hillery

What Real Drug Reorm Would Look Like 116Inimai M. Chettiar

Moing Beyond Mandatory Minimums 118Jessica M. Eaglin

Liberty & National Security 121

Te Spying on Americans Never Ended 122Elizabeth Goitein

Is the Government Keeping oo Much o Your Data? 124Rachel Levinson-Waldman

Oversight Will Help, Not Hurt, the NYPD 127Frederick A. O. Schwarz, Jr., Victor A. Kovner, and Peter L. Zimroth

Big Brothers Sibling: Te Local Police 128Michael Price

Te NSA Owes Us Answers 130Rachel Levinson-Waldman

Privacy Afer Petraeus 132Faiza Patel, Hon. Danny Julian Boggs, Kenneth Wainstein,Laura Murphy, and David Lieber

Beyond Bradley Manning 136Faiza Patel


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DEMOCRACY AND JUSTICE TODAY


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Imet Justice Brennan in 1987 when I was creating a series or public television

called In Search o the Constitution, celebrating the bicentennial o ourounding document.

By then he had served on the Court longer than any o his colleagues and hadwritten close to 500 majority opinions, many o them addressing undamentalquestions o equality, voting rights, school segregation, and, inNew York imesv. Sullivanin particular, the deense o a ree press.

Tose decisions brought a storm o protest rom across the country. Althoughhe said he never took personally the resentment and anger directed at him, he

did subsequently reveal that his own mother had told him she always liked hisopinions when he was on the New Jersey court but wondered, now that he wason the Supreme Court, Why cant you do it the same way? His answer: Wehave to discharge our responsibility to enorce the rights in avor o minorities,

whatever the majority reaction may be.

Although a liberal, he worried about the looming size o government. When hementioned that modern science may be creating a Frankenstein, I asked, Howso? He looked around the chamber and replied: Te very conversation werenow having can be overheard. Science has done things that, as I understand it,make it possible through these drapes and those windows to get something in

here that takes down what were talking about.

Tat was 1987 beore the era o cyberspace and the maximum surveillancestate that grows topsy-turvy with every administration. How I wish he werehere now and still on the Court!

My interview with him was one o 12 episodes in that series on theConstitution. Another concerned a case he had heard back in 1967 involving ateacher named Harry Keyishian, who had been fired because he would not signa New York State loyalty oath. Justice Brennan ruled that the loyalty oath and

That Sound You Hear is the Shredding of the Social Contract

Bill Moyers

The veteran journalist, in a powerful address, warns that our democracy is at risk.

Moyers received a Brennan Legacy Award, and delivered a version of this

speech at the Brennan Legacy Awards Dinner, November 19, 2013. This

essay first appeared online at TomDispatch.com.


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7Democracy and Justice Today

other anti-subversive state statutes violated First Amendment protections o academic reedom. I trackedKeyishian down and interviewed him. Justice Brennan watched that program and was ascinated to see theactual person behind the name on his decisions. Te journalist Nat Hentoff, who ollowed Brennans workclosely, wrote that He may have seen hardly any o the litigants beore him, but he searched or a sense o

them in the cases that reached him. Now, watching the interview with Keyishian, he said: It was the firsttime I had seen him. Until then, I had no idea that he and the other teachers would have lost everything ithe case had gone the other way.

oward the end o his tenure, when he was writing an increasing number o dissents on the RehnquistCourt, Brennan was asked i he was getting discouraged. He smiled and said, Look, pal, weve alwaysknown the Framers knew that liberty is a ragile thing. You cant give up.

Te historian Plutarch warned us long ago o what happens when there is no brake on the power o greatwealth to subvert the electorate. He wrote: Te abuse o buying and selling votes crept in and money began

to play an important part in determining elections. Later on, this process o corruption spread to the lawcourts and to the army, and finally, when the sword became enslaved by the power o gold, the Republic wassubjected to the rule o emperors.

We dont have emperors yet, but we do have the Roberts Court that consistently privileges the donor class.

No emperors yet, but we do have a Senate in which, as a study by the political scientist Larry Bartels reveals,Senators appear to be considerably more responsive to the opinions o affluent constituents than tothose o middle-class constituents, while the opinions o constituents in the bottom third o the incomedistribution have no apparent statistical effect on their senators roll call votes.

No emperors yet, but we have a House o Representatives controlled by the ar right o the politicalspectrum that is now nourished by streams o dark money unleashed by the gi bestowed on the rich byCitizens United.

No emperors yet, but one o our two major parties is now dominated by radicals engaged in a crusade ovoter suppression aimed at the elderly, the young, minorities, and the poor while the other party, once thechampion o everyday working people, has been so eneebled by its own collaboration with the donor classthat it offers only token resistance to the orces that have demoralized everyday Americans.

Writing in Te Guardianrecently, the social critic George Monbiot said: I dont blame people or giving

up on politics. When a state-corporate nexus o power has bypassed democracy and made a mockery o thevoting process; when an unreormed political system ensures that parties can be bought and sold; whenpoliticians [o the main parties] stand and watch as public services are divvied up by a grubby cabal oprivateers, what is le o the system that inspires us to participate?

Why are record numbers o Americans on ood stamps? Because record numbers o Americans are inpoverty. Why are people alling through the cracks? Because there are cracks. It is simply astonishing that inthis rich nation more than 21 million Americans are still in need o ull-time work, many o them runningout o jobless benefits, while our financial class pockets record profits, spends lavishly on campaigns tosecure a political order that serves its own interests, and demands that our political class push or urther

austerity. Meanwhile, roughly 46 million Americans live at or below the poverty line, and with the exceptiono Romania, no developed country has a higher percent o kids in poverty than we do.

Yet a study by scholars at Northwestern University and Vanderbilt finds little support among the wealthiestAmericans or policy reorms to reduce income inequality.


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Listen! Tat sound you hear is the shredding o the social contract.

en years ago Te Economist no riend o Marxism warned: Te UnitedStates risks calciying into a European-style class-based society.

And in the words o a headline over a recent article in the Columbia JournalismReview: Te line between democracy and a darker social order is thinner thanyou think.

We are this close this close! to losing our democracy to the mercenaryclass. So close its as i we are leaning way over the rim o the Grand Canyon,

waiting or a swi kick in the pants.

When Justice Brennan and I talked privately in his chambers beore thatinterview almost 20 years ago, I asked him how he had come to his liberalsentiments. It was my neighborhood, he said. Born to Irish immigrants in1906, as the harsh indignities o the Gilded Age were flinging hardship anddeprivation at his kinolk and neighbors, he saw all kinds o suffering

people had to struggle. He never orgot those people or their struggles, andhe believed it to be our collective responsibility to create a country where they

would have a air chance to a decent lie. I you doubt it, he said, read thePreamble [to the Constitution].

Lets all go home tonight and do just that.

Just as I asked Justice Brennan how he came to his philosophy aboutgovernment, he asked virtually the same o me (knowing that I had been inboth the Kennedy and Johnson administrations). I dont remember my exact

words, but I told him briefly that I had been born in the midst o theGreat Depression to parents who had to drop out o school in the ourthand eighth grades, respectively, because they were needed in the fields to pickcotton to help support their amilies. I recalled that FDR had been presidentduring my first 11 years, that my ather listened to his fireside chats as i they

were gospel, that my brother went to college on the GI Bill, and that I myselhad been the beneficiary o public schools, public libraries, public parks, publicroads, and two public universities; how could I not think that what had beengood or me was also good or others?

Tat was the essence o my response to Justice Brennan. I wish now that I couldtalk to him again, because I ailed to mention perhaps the most importantlesson about democracy that I ever learned.

On my 16th birthday in 1950 I went to work or the daily newspaper in thesmall east exas town where I grew up. It was a racially divided town about20,000 people, hal o them white, hal o them black; a place where you couldgrow up well-loved, well-taught, and well-churched, and still be unaware o

the lives o others merely blocks away. It was nonetheless a good place to bea cub reporter small enough to navigate but big enough to keep me busyand learning something every day. I soon had a stroke o luck. Some o theold-timers in the newsroom were on vacation or out sick, and I got assigned to

This is the oldeststory in America:

the struggle to

determine whether

we, the people is

a moral compact

embedded in a

political contract,

or merely a charade

masqueradingas piety and

manipulated by

the powerful and

privileged to sustain

their own way of life

at the expense of

others.


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9Democracy and Justice Today

report on what came to be known as the Housewives Rebellion. Fieen women in town all white decided not to pay the Social Security withholding tax or their domestic workers all black.

Tey argued that Social Security was unconstitutional, that imposing it was taxation without representation,

and that heres my avorite part requiring us to collect [the tax] is no different rom requiring usto collect the garbage. Tey hired themselves a lawyer none other than Martin Dies, Jr., the ormercongressman best known, or worst known, or his work as head o the House Committee on Un-AmericanActivities in the witch-hunting days o the 1930s and 40s. Tey went to court and lost. Social Security

was constitutional, aer all. Tey held their noses and paid the tax.

Te stories I helped report were picked up by the Associated Press and circulated nationwide. One day themanaging editor, Spencer Jones, called me over and pointed to the AP ticker beside his desk. Moving acrossthe wire was a notice citing the reporters on our paper or the reporting we had done on the Rebellion. Ispotted my name and was hooked. In one way or another aer a detour through seminary and theninto politics and government Ive been covering the class war ever since.

Tose women in Marshall, exas, were among its advance guard. Not bad people, they were regulars at church,their children were my classmates, many o them were active in community affairs, and their husbands were

pillars o the business and proessional class in town. Tey were all respectable and upstanding citizens, soit took me a while to figure out what had brought on that spasm o reactionary defiance. It came to me oneday, much later: Tey simply couldnt see beyond their own prerogatives. Fiercely loyal to their amilies, totheir clubs, charities, and congregations fiercely loyal, in other words, to their own kind they narrowlydefined membership in democracy to include only people like them. Te black women who washed andironed their laundry, cooked their amilies meals, cleaned their bathrooms, wiped their childrens bottoms,and made their husbands beds these women, too, would grow old and rail, sick and decrepit, lose their

husbands and ace the ravages o time alone, with nothing to show rom their years o labor but the creasesin their brow and the knots on their knuckles. Tere would be nothing or them to live on but the modestreturn on their toil secured by the collaborative guarantee o a saety net.

In one way or another, this is the oldest story in America: the struggle to determine whether we, thepeople is a moral compact embedded in a political contract, or merely a charade masquerading as pietyand manipulated by the powerul and privileged to sustain their own way o lie at the expense o others.

I should make it clear that I dont harbor any idealized notion o politics and democracy; remember, Iworked or Lyndon Johnson. Nor do I romanticize the people. You should read my mail and posts on

right-wing sites. I understand what the politician in exas who said o the state legislature: I you thinkthese guys are bad, you should see their constituents.

But there is nothing idealized or romantic about the difference between a society whose arrangementsroughly serve all its citizens (otherwise known as social justice) and one whose institutions have beenconverted into a stupendous raud. Tat difference can be the difference between democracy and plutocracy.

oward the end o Justice Brennans tenure on the Supreme Court, he made a speech that went to the hearto the matter. He said:

We do not yet have justice, equal and practical or the poor, or the members o minority groups,

or the criminally accused, or alienated youth, or the urban masses. Ugly inequities continue tomar the ace o the nation. We are surely nearer the beginning than the end o the struggle.


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And so we are. One hundred and fiy years ago today, Abraham Lincoln stood on the blood-soakedbattlefield o Gettysburg and called Americans to the great task remaining. Tat unfinished work, as henamed it, remained the same then as it was when Americas ounding generation began it. And it remainsthe same today: to breathe new lie into the promise o the Declaration o Independence and to assure that

the Union so many have sacrificed to save is a union worth saving.

In this unfinished work the Brennan Center or Justice has much to do.


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VOTING REFORM


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One year beore the 2012 election, democracy was playing deense.

Our nation was ounded on an essential premise o political equality, theideal that all men are created equal. In fits and starts over two centuries, we

widened the circle o participation. Te right to vote became over time theundamental embodiment o the American idea.

But suddenly, in state capitals across the country, Republican lawmakers hadmoved abruptly to curb voting rights. In all, 19 states enacted 25 new statutesto cut back on the ranchise, the first major rollback since the Jim Crow era.Measures ranged rom harsh new voter ID requirements (in Pennsylvania,

Wisconsin, and elsewhere), to an end to same-day registration (in Maine),to strict limits on early voting (in Florida and Ohio), to barriers that madeit nearly impossible or outside groups to register citizens (in Florida). TeBrennan Center or Justice calculated the new laws would make it ar harderor at least 5 million citizens to vote.

No unexpected crisis impelled this wave o action only a shi to RepublicanParty control in statehouses. Te new laws bore an unmistakable partisan tint.Pennsylvania GOP leader Mike urzai seemed tipsy on truth serum when hebragged that his new voter ID law is gonna allow Governor Romney to winthe state o Pennsylvania. Tey also bore an unmistakable racial tint. O the

10 states with the highest black turnout in 2008, the legislatures o eight passedmeasures making it harder to vote laws that hit hardest minority, student,

poor, and elderly citizens.

Ten something remarkable happened. Citizens ought back. A high-octanecommunications effort by voting-rights groups brought the issue to the centero political debate. Te Justice Department lived up to its responsibility, too,and blocked many laws using the Voting Rights Act. Lawyers or democracyorces anned out to courtrooms across the country. Judges, regardless o party,acted as a counterweight to partisan manipulation.

Playing Offense: An Aggressive Voting Rights Agenda

Michael Waldman

Those who support voting rights must move onto offense. We need to learn the lessons of recent

victories and defeats. We must win the fight for public opinion. And we need a commitment to

continued innovation including, critically, a pro-voter election integrity agenda.

This article appeared in Democracy: A Journal of Ideas, Spring 2013.


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13Voting Reform

Startlingly, by Election Day, every single oneo the worst new laws had beenblocked, blunted, postponed, or repealed. It was a heartening victory arare, distilled triumph o public-interest law and citizen activism. But publicattention shone a klieg light on deep underlying problems. Te sel-proclaimed

worlds greatest democracy tolerates a voting system that is ramshackle, rie witherror, and prone to manipulation. Long lines are just one visible symptom. Incentral Florida, waits as long as seven hours turned away an estimated 49,000

voters. As conservative columnist David Frum wrote, Americas voting systemis a disgrace.

Tis time, these flaws did not prove dispositive: Te election was not close. Buti Florida 2000 was an electoral wreck, America 2012 was a terriying near-miss. On election night, President Obama waxed eloquent describing people

who waited hours to vote, then blurted out, By the way, we have to fix that.Mr. President, to invoke a amiliar phrase, Yes, we can. But how?

Just possibly, the voting brawl will launch a new era in the fight to strengthenAmerican democracy. Many voters were urious. Arican-American turnoutincreased, partly in reaction to attempted disenranchisement. But deensive

victories, no matter how vital, are not enough. As Winston Churchill said,Wars are not won by evacuations. Progressives must embrace ambition andinnovation the next generation o reorms cant just rehash old victoriesor end off assaults rom the other side. We must put orward an agenda thataddresses public concern or election integrity without disenranchising voters.And we must be ar more strategically ambitious about building a politically

potent movement or change. Tat starts with an insistence that policy elitesand political allies again put democracy reorm at the center o their concerns.

Lessons Learned

As we move to seek reorms, we would do well to draw some basic lessons romthe fights o the past two years.

Problems are undamental; reorms must be undamental. Many culpritsproduced long lines on Election Day. Certainly, national standards to assure

adequate early voting periods would help. So would rules to make sure thereare enough voting machines per precinct. But new technologies offer thepossibility to leap orward to shi the paradigm o how we run elections.Reimagining voter registration is the key.

odays system o individualized, sel-initiated voter registration was firstcreated a century ago in an explicit effort to keep ormer slaves and newEuropean immigrants rom voting. It has barely been updated since. It relieson paper records, administered by thousands o local jurisdictions. Te PewCenter on the States reports millions o names o dead people or duplicates clogthe records, while tens o millions o eligible citizens are missing. inkering

alone will not fix voter registration.

Rather, the United States should plunge orward to modernize its voter-registration system. States should be required to take responsibility or

Progressives must

embrace ambitionand innovation the

next generation of

reforms cant just

rehash old victories

or fend off assaults

from the other side.


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15Voting Reform

But research by pollster Celinda Lake drew a powerul conclusion: Despitepublic skepticism about voting rights, it is still possible to tap a deep well opatriotism to garner support or them. Te American creed o political equalitystill holds totemic power.

Armed with these insights, voting-rights groups waged a sophisticatedmedia campaign in 2012. Research reports garnered wide coverage; mediaoutlets even comedy shows devoted huge amounts o attention to

voter disenranchisement. Te new laws became widely understood as anillegitimate drive to twist the rules to benefit political insiders. Under pressure,the Republican governors o Michigan and Virginia blocked harsh changes.Significantly, the transormed issue terrain likely helped advocates win court

victories as well. In previous years, judges saw these laws as arcane election-administration matters. In 2012, they understood the rules as part o anationwide partisan push. As ederal judge Brett Kavanaugh a ormer KenStarr deputy! wrote in partially striking down the South Carolina voterID law, Te Voting Rights Act o 1965 [has] brought America closer toulfilling the promise o equality espoused in the Declaration o Independenceand the Fourteenth and Fieenth Amendments to the Constitution.

Progressives must have an election-integrity agenda. Progressives will need todo much better, too, at making clear our commitment to election integrity.O course, the voter raud claimed by Heritage Foundation ellows and WallStreet Journaleditorialists does not exist. A person is more likely to be killedby lightning than to commit in-person voter raud the only kind o raud

blocked by a voter ID requirement. Te entire conservative push is premisedon an easily discredited urban myth. Snopes.com could solve the problem.

But progressives look Pollyannaish i we belittle concerns about electionintegrity. Aer all, politicians have been trying to stuff the ballot box sincesenators wore togas. It was progressive reormers who ought or decades toimprove the honesty and integrity o elections.

In act, experts confirm two areas o genuine risk. Both involve electionmanipulation by politicians. Electronic voting machines, aer all, could behacked. Te remedy paper records, an audit trail to rustrate raud has now been adopted by nearly every state. Tis anti-raud victory should beembraced by voting activists. Te other real raud risk comes rom absenteeballoting. (Most raud examples actually describe abuse o absentee ballots,as when a nursing-home worker fills out all the orms or infirm residents.) Ocourse, requiring voter ID does little to prevent this abuse. Rather, expandedearly voting offers an alternative to absentee ballots.

I believe progressives must take one more step. We should unambiguouslyembrace an election-integrity agenda that protects against genuine risks

without disenranchising legitimate voters. Te Republican demand or voter

ID laws is not the problem per se. Te problem comes rom laws requiring IDthat many people do not have. About 11 percent o voters lack a drivers licenseor another current government photo ID. Rhode Island, in contrast to thestricter ID laws conservatives avor, passed a law that accepts nongovernmental

Progressives should

unambiguously

embrace an election-

integrity agenda that

protects against

genuine risks without

disenfranchising

legitimate voters.


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ID such as insurance cards, credit or debit cards, even health-club cards. Tisapproach has caused little disenranchisement or raud.

Nevada Secretary o State Ross Miller, a Democrat, has an even more exciting

idea. He suggests that drivers license photos be included in polling placesignature books. I voters dont have the ID, a photo would be snapped, which

would serve as their ID going orward. Details o such a plan would mattergreatly. But done right, that too could point to an end to the divisive voter IDbattles o recent years.

Acclimating ourselves to the need or some orm o ID will be hard or voting-rights advocates. In the heat o battle, it can be difficult to bend. But mostcitizens see voter ID as simple common sense. Only i we show them we sharethat understanding will they listen to our arguments that some orms o ID

would lock millions out o the ballot box. ellingly, voting-rights advocateswon a significant victory in Minnesota, where voters rejected a proposedconstitutional amendment establishing a restrictive ID regime. Te mosteffective ad showed a ormer Republican governor and the current Democraticincumbent implying that some orm o ID might be appropriate, but that this

particular proposal needed to be sent back to the legislature.

A plausible election-integrity agenda will give legislative allies firm ground onwhich to stand. Tey can insist that only eligible citizens can vote but everyeligible citizen must be able to vote.

A Political Strategy

In all, the exhilarating victories o 2012 offer ample lessons on how to win.But we have seen moments o possible reorm arrive and dissipate beore. Te

potential o this moment will vanish too unless democracy advocates becomear more relentless in demanding action. Democracy reorm must become acentral political strategy. Conservatives understand this. As soon as they gotso much as a pinkie on a lever o power, they used it to cut back on democraticrights. (In the state legislatures, they curbed collective bargaining as well as

voting. In the Supreme Court, they quickly undid decades o doctrine throughCitizens United.) Te right understands these issues actually address power,not process.

By contrast, when the Democrats had the White House, 60 votes in the Senate,and an iron grip on the House o Representatives, they did nothing to advancedemocracy. In act, Barack Obama ormer Project Vote organizer andconstitutional law scholar has done less to advance political reorm thanany Democratic president since the 1940s.

Perhaps that will change. But the first step must come rom outside pressure.Here, there is hope. For the first time in memory, major progressive

organizations have decided that democracy reorm must become a centralstrategic objective. Major environmental groups (led by the Sierra Club andGreenpeace), unions (led by the AFL-CIO and SEIU), and traditional civil-rights groups (led by the NAACP) have organized a new and rambunctious

Nobody ever

marched

for election

administration.

But millions have

marched for

democracy. Thanks

to the voting wars,

they may be ready

to do so again.


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17Voting Reform

Democracy Initiative. Tese groups, boasting millions o members, have come to recognize that they havelittle chance to achieve their objectives unless the political system changes. Tey are now fighting or voter-registration modernization, or small donor public financing o campaigns, and or filibuster reorm. Hereis one response to Citizens Unitedthat needs no constitutional amendment or change in Court personnel.

I conservatives want to flood the system with money, we need to flood the system with voters. I thisinitiative takes hold, it could mark a major turning point.

We need nothing less than an eruption o creative policy, a groundswell o innovative advocacy, and anunflinching insistence that democracy reorm again be at the heart o the progressive agenda. Nobody evermarched or election administration. But millions have marched or democracy. Tanks to the voting warso 2012, they may be ready to do so again.


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All seven recommendations discussed below share two primary criteria:

1) they track the policies set orth by statute, regulation, or statewideguidance in at least a majority o the nine states with the highest use o earlyin person voting (EIPV) and 2) the election officials interviewed includingthose outside o the highest usage EIPV states overwhelmingly identified the

policies as among the key ingredients or successul administration o EIPV.

Early Voting: What Works

Diana Kasdan

Much of todays election system was developed more than a century ago. Confining voting to a

single 8- or 12-hour period simply does not reflect how most Americans live. To modernize the

system, we must expand early voting.

Excerpted from Early Voting: What Works,October 2013.

Laws in States with the Highest EIPV Rates, as of 2012

EIPV Laws Arkansas Florida Georgia Nevada NewMexico

NorthCarolina

Tennessee Texas Utah

Must begin EIPV a

two full weeks beforeElection Day

Must offer weekendvoting

Sets minimum dailyhours and allowsextended weekday hours

Allows both public andprivate voting locations

Sets standards forquantity or distributionof EIPV locations

Counties must updatecounty poll book or statevoter file daily duringEIPV

Must educate theelectorate about the EIPVschedule

able 2:Te laws regulating EIPV statewide are based on each states requirements for general elections. In some states, thesestandards do not apply, or are different, for primaries or special elections. Additionally, this chart only captures the minimumrequirements of state law. As discussed in the report, in several of the states and counties interviewed, common practices meet orexceed these standards even if not mandated by state law. Tis is particularly true with respect to the daily updating of countywidepoll books or the state voter registration file.


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19Voting Reform

1. Begin EIPV a Full wo Weeks Before Election Day

Currently, nearly hal the states with early voting laws speciy that early votingbegin between two and three weeks beore Election Day in a general election. All

nine states with the highest EIPV rates in both 2008 and 2012 ell within thisrange or both o those election years, with the exception o Florida, which hadonly eight days in 2012. By contrast, states offering significantly more or less timeto cast an early ballot have not seen greater use o early in person voting.

According to election officials interviewed all o whom had implementedEIPV periods beginning two to three weeks beore recent general elections this period was an effective minimum duration or generating theadministrative benefits described above. Tey consistently said less time wouldbe insufficient, and significantly more time was unlikely to increase voter use oEIPV or administrative benefits. Michelle Parker, assistant director o electionsor ravis County, exas, stated: I cant imagine us starting [early voting]much sooner. I think its about right, two ull work weeks and a weekend. Icant imagine it being any longer. ... Making it shorter would be difficult in ourbig elections because we would increase wait times and crowding. Likewise,Scott Gilles, Nevadas deputy secretary or elections, believes a two-week

period is optimal: []he counties essentially run the election or two weeksin advance o Election Day, not as i they are gearing up or just one big day. It

provides them the ability to get their system in line or Election Day, which isstill the biggest day.

Conversely, Floridas 2012 debacle, when it cut EIPV rom two weeks to one,shows holding early voting or less than two weeks is not wise policy.

2. Provide Weekend Early Voting, Including the Last Weekend BeforeElection Day

Weekend voting can help maintain a more manageable and even distributiono voters over each day o EIPV. It also has the potential to increase overallusage o EIPV by drawing voters who are less likely to vote during weekdaysdue to work schedules, or might otherwise wait until Election Day but or

the convenience o weekend voting. Indeed, in some jurisdictions, weekendsare peak voting days, and the last weekend beore Election Day oen sees thebiggest day o EIPV turnout.

Not surprisingly, the majority o states with early voting require some weekenddays or give local election officials discretion to offer weekend voting. In eighto the nine states with the highest EIPV turnout in 2008 and 2012, there arestatutory mandates or at least one weekend day o early voting. In three othose states, the final Saturday beore Election Day is the last mandated day oEIPV. Notably, weekend voting hours were offered in 2008 and 2012 in all the

jurisdictions we interviewed, even when not required by state law.

Policies or practices that make weekend voting equally accessible as weekdayvoting can also help increase its usage. In New Mexico, state law requires eighthours or each weekday and Saturday voting, and Bernalillo County goes even

Weekends are peak

voting days, and the

last weekend before

Election Day often

sees the biggest

day of early voting

turnout.


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urther, offering 12 hours on every day o early voting. Tis approach has madeSaturday voting a meaningul option in New Mexico and election officialsreported Saturday is one o the most popular voting days across the state.

3. Set a Consistent Number of Minimum Daily Hours for Each Day ofEIPV and Provide Extended Hours Outside Standard Business Hours

Election officials can reduce lines during EIPV, enhance access or many voters,and even increase EIPV turnout by maximizing daily hours and including aregular set o nonbusiness hours.

State laws generally are less specific in mandating that minimum hours o EIPVbe offered outside o usual business hours. A minority o states with early voting,14 o the 33 jurisdictions, explicitly require early voting locations remain openoutside regular business hours or explicitly grant local jurisdictions discretionto offer additional hours. In contrast, as with weekend voting, such policiesand practices are standard among the states with the highest EIPV turnoutin the last two presidential elections. All nine o these states have statutesthat set minimum daily early voting hours and most explicitly authorize local

jurisdictions to set at least some early voting hours beyond the minimumsspecified. In two o the nine states, Arkansas and Nevada, the statutoryminimums are 8:00 a.m. to 6:00 p.m., automatically establishing one hour atthe beginning and end o the day outside standard business hours.

Te number o hours o EIPV per day is a significant contributor to EIPV usage.

According to our research, in states with some o the highest rates o EIPV,like New Mexico, ennessee, and exas, election officials chose to offer EIPVor significantly more hours than the statutory minimum. In MontgomeryCounty, ennessee (pop. 184,468), or example, early voting typically occursrom 8:00 a.m. to 6:00 p.m., well beyond the daily three-hour minimum set bylaw. In Bernalillo County, New Mexico (pop. 673,460), the county provides12 hours o EIPV or general elections. Tis 12-hour daily schedule is 50

percent more than the legally mandated eight hours. And in ravis County,exas (pop. 1,095,584, which includes the state capital, Austin), one early

voting mega center is open until 9:00 p.m., an additional two hours beyondthe statutorily required 12-hour day. In describing the choice o extendedhours, two common rerains were the importance o making hours consistentover several days to encourage use, and including evening hours or those morelikely to vote outside work hours, or on their commute home.

4. Allow Counties to Use Both Private and Public Facilities

Because early voting locations typically operate as vote centers serving allregistered voters in a county and must remain open several days, electionofficials need the flexibility to choose acilities that can meet unique logistical,security, and capacity needs. Election officials can best address these needs

when they are able to use a mix o public and private acilities. A handul ostates limit early voting to the county clerks office. Notably, many o these arestates in which early in person voting is the same as, or little more than anextension o, no-excuse absentee voting. In contrast, most states with EIPV,

Election officials

can reduce lines,

enhance access,

and even increase

early voting turnout

by maximizing daily

hours and including

a regular set of

nonbusiness hours.


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21Voting Reform

including most o the nine states with the highest EIPV rates, permit election officials to use a range ovoting locations, both public and private.

Most election officials confirmed the benefits o using a variety o voting locations. County-owned

libraries, recreation centers, and community centers were commonly selected voting locations among allofficials interviewed. With the exception o election officials in Illinois and some smaller counties withonly one voting location, all other state and county election officials we interviewed reported that non-government acilities were valuable early voting sites. Private sites included malls, shopping centers, unused

vacant commercial spaces, churches, and corporate office centers. Daniel Burk, ormer registrar o voters inWashoe County, Nevada, reported that or 15 years EIPV turnout never reached more than 15 percent ovoting until we switched over to commercial voting locations in 2004.

Even when state laws mandate a preerence or government buildings, officials oen supplement them withprivate locations. In Utah, state law directs that early voting locations must be government acilities unless theelection officer determines that ... there is no government building or office available that meets certain criteria.Tis exception is invoked requently. Utah Director o Elections Mark Tomas estimates more than hal thestates early voting locations are in private buildings. One challenge or EIPV supervisors is finding locations thatare willing to hand over their space and relinquish security control to election officials or several nights. Butin North Carolina, local election officials can demand that a public acility suspend conflicting uses during theentire early voting period. Not only does such a requirement give election officials enormous leverage in dealing

with their public sector counterparts, it also reduces the need or private acilities. Nonetheless, private buildingsmay offer better space to accommodate large numbers o voters and voting machines.

5. Distribute Early Voting Places Fairly and Equitably

Fair and equitable siting policies are critical to the successul administration o EIPV, just as they are onElection Day. An extensive body o academic literature addresses the ways siting policies can impact, andeven increase, turnout. Further, the laws and practices in states with the highest EIPV rates many o

which attempt to address the issue o equal access o EIPV sites suggest more specific standards on thispoint can improve EIPV usage.

As is true with other early voting policies, most state laws say little about the distribution o early voting acilities.In contrast, laws in those states with high rates o EIPV are more likely to set rules either about the number oearly voting locations per county, how they are to be distributed within each county, or both. Georgia, NewMexico, and exas all mandate a minimum number o early voting locations based on county population.New Mexico has an additional provision requiring equitable distribution o voting sites based on populationdensity and travel time. While Florida and North Carolina impose no population-based minimum numbero EIPV locations, they do have laws requiring equitable distribution o discretionary satellite locations. AndUtah requires early voting locations in its most populous county, Salt Lake (which represents nearly 40 percento the states population), be proportionately distributed based on the county population.

Not surprisingly, standards or the number and placement o early voting locations vary widely. Forinstance in New Mexico, any county with 250,000 or more voters must establish at least 15 additional early

voting locations beyond the clerks office. Across the border in exas, counties with populations between120,000 and 400,000 must establish at least one additional early voting location or each commissioners

precinct covered by the election, and those with a population o more than 400,000 must establish at

least one additional early voting location or each state representative district covered by the election. Andin Georgia, only counties with populations o more than 550,000 must make any branch o the countycourthouse or courthouse annex available or early voting purposes.


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6. Update Poll Books Daily

Daily and electronic updating o poll books can help election officials managetwo challenges related to early voting implementation. First, i a countywide

poll book is updated daily by each early voting site, administrators will not acethe crunch o having to manually update and prepare accurate precinct-specific

poll books just days, or less, beore Election Day. Second, officials will have areal-time mechanism to veriy that a voter has not already cast an early ballotat another early voting location, or absentee. Absent such contemporaneousrecord keeping, it is theoretically possible that a voter could cast ballots atmultiple sites during the early voting period and on Election Day and notbe discovered until aer Election Day. Although this has not been a serious

problem anywhere (especially since it is easy to get caught aer the election),there is no reason not to eliminate any risk.

Plainly these issues are important to election integrity, but or the most part,early voting laws do not clearly require daily updating o countywide poll books.

Just over hal o the early voting states have general requirements concerningmaintenance o poll books at early voting sites, or or providing the names othose who already voted early or absentee to local precincts in time or ElectionDay. And very ew Colorado, Florida, Illinois, Maryland, ennessee, exas,and West Virginia mandate the specific technology or procedures to enabledaily updating o countywide poll books or use o a statewide registrationdatabase. Among states with the highest EIPV rates, however, over hal havelaws or statewide policies that specifically require or encourage systems to ensure

daily updating o poll books during early voting. While we ound no evidencethat the lack o specific laws mandating daily, countywide updates to the pollbooks created problems, our interviews confirmed the benefits o a system in

which each early voting site has the capacity to daily, and electronically, accessand update the voter rolls during the EIPV period.

In practice, the election officials we interviewed uniormly ensure dailyupdating during EIPV. Using electronic poll books or computers at each

voting site networked to the countywide or state registration database,administrators access and update voter rolls at least daily i not more. Electionofficials overwhelmingly agreed that in addition to easing the management o

poll books, particularly in preparation or Election Day, electronic systems alsoenhanced the integrity o the voting system.

7. Educate the Electorate About Early Voting

States should ensure counties provide sufficient advance notice and widespreadpublic education about EIPV opportunities. Tis will achieve two goals. First,it gives voters the specific inormation they need to determine when and wherethey can most readily vote in light o their work and amily schedules and traveloptions. Second, according to election officials we interviewed, and academic

research, counties can increase EIPV usage by widely publicizing its availabilitythrough a range o public communications.

States should

ensure counties

provide sufficient

advance notice

and widespread

public education

about early voting

opportunities.


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23Voting Reform

About hal o the early voting states have laws specifically requiring some orm o public announcement othe early voting period (distinct rom generally applicable notice requirements).

Not surprisingly, most states with the highest EIPV rates six o the nine have such public notice

requirements. Laws in Georgia, Nevada, New Mexico, ennessee, exas, and Utah require that localelection officials urnish all voters with notice o EIPV schedules. Still, even these rules vary widely on thetiming o when voters are notified. In Georgia, or example, it need only be reasonable, while in otherstates in can be as short as 72 hours (exas) or as long as 25 days beore Election Day (ennessee). And thespecificity o the orm o notice also varies considerably. In another two o the highest perorming EIPVstates, Florida and North Carolina, all counties must submit their schedule or EIPV to the state electionauthority in advance. While these laws do not explicitly require advance notice provided directly to voters,they do create a publicly accountable process or establishing schedules in advance o the EIPV period.In general, however, most o these statutory requirements all short o providing the necessary guidanceto ensure adequate voter education. Interviews confirmed that, or the most part, public education effortsdepend on the initiative o local election administrators. For example, in the 2012 election, BernalilloCounty, New Mexico, truly adapted to the needs o its constituents by offering a mobile app that allowedearly voters to find the nearest polling place, learn approximate wait times, and get directions.

In ravis County, exas, election officials anticipated heavy turnout in 2008 and conducted a widespreadmedia campaign encouraging early voting, including engaging in multiple media interviews or both printand television. Administrators in both believe these efforts resulted in greater use o EIPV. In additionto encouraging EIPV, officials also emphasized that voter education is important or preventing voterconusion between the early voting and Election Day locations and times.


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Wendy Weiser, Democracy Program Director, Brennan Center for Justice

Any serious effort to improve our voting system and to reduce long lines at thepolls has to address our voter registration system. Other critical reorms areexpanding early voting and setting minimum standards so that no voter hasto wait in line or more than an hour, but or todays purposes, we are going toocus on the key problem o the voter registration system, which is currentlythe biggest barrier to ree, air, and accessible elections in the United States our paper-based, outdated voter registration system.

Te system is currently ull o errors which create needless barriers to voting,opportunities or abuse and raud, and long lines on Election Day. Te scaleo the problem is enormous. More than 50 million Americans, 1 in 4 eligiblecitizens, are not registered to vote. While some choose not to register, artoo many try to register and either ail or are knocked off the voter rolls. AHarvard-MI study in 2008 ound that up to 3 million eligible voters thoughtthey were registered, showed up at the polls to vote, only to be turned awayor told their votes wouldnt count. An earlier study ound a ull one-third ounregistered citizens were previously registered, and then moved, and their

voter registrations did not move with them, and they didnt update them.

Our voter rolls arent only incomplete, theyre also filled with errors. A study

by the Pew Center on the States ound 1 in 8 o the registration records on ourvoter rolls is invalid or has serious errors in it. And these problems beget otherproblems. When a voters name cant be ound on the rolls, she cannot vote aballot that will count. When poll workers have to spend their time searchingthrough poll books to find names that have been improperly knocked off that have been misspelled, that are at the wrong address and when they hadto help voters cast provisional ballots, we end up with long lines at the polls.

We can and should fix that. When a citizen takes responsibility to vote, thegovernment has a responsibility to make sure the system will work, that she canbe registered and vote on Election Day.

Modernizing Voting: States in the Lead

Secretaries of state play the lead role to ensure an efficient and inclusive voting system. Innovators

from both parties, without fanfare, are advancing reforms to modernize the antiquated electoralsystem. The Brennan Center brought together leading state officials to discuss how to improve

voting. The conversation touched on whats right, whats wrong, and how to expand access to

the polls.

These remarks are excerpted from a Brennan Center-sponsored event at the

National Press Club in Washington, D.C., January 24, 2013.


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25Voting Reform

Hon. Ross James Miller, Secretary of State, Nevada, Democrat

In Nevada, this has been my highest priority, making sure that the pollinglocations are as accessible and convenient or people to be able to cast ballots

as possible. In Nevada, weve had a couple o tough elections since Ive been thechie elections officer, and overall, Ive been proud o the elections that weve run.

Weve had a very robust early voting system in Nevada. Last election, 61percent o Nevadans voted early, along with 9 percent who voted absentee.In our early vote system, its a little bit different. We have literally dozens olocations throughout some counties where any voter can cast ballots. Tereare hundreds o hours, and we put them in locations that are convenient or

people, be it at shopping centers or libraries, even supermarkets.

We have also worked very aggressively to try to upgrade our voter registrationprogram, notably through online voter registration, which we had statewideor the first time this last election. It saw a tremendous usage and a tremendousspike rom 2010 where we had a pilot program in just one county.

But our major initiative that were looking orward to this session, to try to pushor the 2014 election and beyond, is an upgrade into an electronic poll book.

We still have an antiquated poll book on Election Day its paper-based, yousign in, you have to provide your signature, they have to compare the signaturethats on file. I that signature does not match, the voter is required to producea government-issued photo ID. I they dont produce it or the photo doesnt

appear to match, then theyre given a provisional ballot, which in Nevada onlyallows you to vote in ederal races. Over 60 percent o those ederal provisionalballots last cycle did not count. I believe firmly that by upgrading to theelectronic system, we can displace this very antiquated system.

Hon. Alvin A. Jaeger, Secretary of State, North Dakota, Republican

North Dakota, in case you dont know it, is the only state that doesnt havevoter registration. Some people find that somewhat odd. Some reporters inthis city have talked because we had a very high-profile Senate race about

our lax voting laws. And it puzzled me, and quite rankly, even rustrated mea little bit, because as I understand it, to vote, you have to be a United Statescitizen, you have to be 18 years o age, and to the best o my knowledge in moststates, you have to have been a resident or 30 days. So we automatically assumethat everybody over 18 meets those qualifications. Teyre voters. Tey maynot come to the polls, but theyre voters, theyre eligible voters.

In recent years, our state adopted identification requirements. We accept avariety o them. And so a voter comes to the polls, they show some type oidentification. Teyre allowed to vote. Now, when you vote, and I wouldsuspect this isnt any different in any other state, your name is recorded in a

poll book. And we have a centralized poll book or all 53 counties. All o thatinormation as to who has voted in their respective counties is recorded there.And so there is a record o who has voted, and so i I come in to vote, I showmy identification, we have electronic poll books, my name pops up. Are you

When a citizentakes responsibility

to vote, the

government has

a responsibil ity

to make sure the

system will work.


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still here, there, whatever? And Im allowed to vote. It is not a requirement that your name is in there. Iyou show the identification and you provide all o those things that we need, youre allowed to vote. I yourname isnt in the system, guess what, it will be entered in, at that time, as a record that you have voted.

Hon. Kate Brown, Secretary of State, Oregon, Democrat

As the secretary o state o Oregon, my mission is to make voting as accessible as possible or all eligibleOregonians. I believe that your vote is your voice and that every single voice matters, and or me, this isa very personal mission. When I ran or the state house a ew years ago back in 1992, I had a very hotlycontested primary that I won by seven votes. I dont pretend that every single vote doesnt matter. InOregon, I think many o you know, we were the first state in the nation to move to all vote by mail werecalling it Universal Ballot Delivery and the system has been very successul. In the 2012 election cycle

we saw 82.7 percent o registered voters turn out. Its because we make it simple and accessible by putting aballot in their hands through the mail.

Our challenge has been on the registration side. Like my colleague in North Dakota, I dont believeregistration should be a barrier to participation, and so weve been working to make it easier to register to

vote in Oregon, and obviously, with vote by mail, we need a voter registration database in order to be ableto send you your ballot. So its really important or us that our voter registration database be up to dateand as accurate as possible, both to save money and obviously provide greater efficiency or our voters. Sothree years ago, we moved to an online voter registration system. Weve had over 240,000 Oregonians usethat system.

Hon. Mark Ritchie, Secretary of State, Minnesota, Democrat

Te state is known primarily because we are an Election Day registration state. We like to say we were thefirst. Te truth is Connecticut had Election Day registration in the 1880s, the first hour in the morning.I think Wyoming had Election Day registration in primaries in the 20s. Election Day registration isextremely popular in the states its in. Its popular with those o us who administer it because it exemptsus rom Motor Voter (National Voter Registration Act). Tere are other advantages to Election Dayregistration. For example, seven to eight points higher turnout, that kind o thing. Sixty-one percent oMinnesotans have used Election Day registration. Lots o us have used it with our kids or because wevemoved. Hal a million or more people use it every time in a big election cycle. Its quite important.

It also has been challenged dramatically. Last year it was challenged in the courts and I would reer you to the

Eighth Circuit Court, Donovan Frank was the judge. It was put to him that Election Day registration andanother part o our law was unconstitutional. Te argument being that voting isnt a right, its a privilege,and you have to jump over certain things to have that right. He wrote a dramatic opinion saying oh, thatsactually not true, its a right, and only a court, a judge, can take away your right. And that applied both toElection Day registration but also to questions that had to do with guardianship. It was also challengedin the legislature. It was also challenged on the ballot, o course, there was a constitutional amendment

placed on the Minnesota ballot. Election Day registration went up on a straight up-or-down vote inMaine a couple years ago, 61 percent o the citizens said no, we want to keep Election Day registration. InMinnesota, theres quite a dramatic debate about this, but in the end, the citizens voted to keep our system.

Beverly Hudnut, Special Counsel, Campaign Legal Center

Every our years aer a presidential election, theres a window o opportunity to address things that workedwell in an election process, and to try to bring Republicans and Democrats together to try to think aboutwhat went wrong and what we can do to improve the system.


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27Voting Reform

Ill tell you what we learned in our conversations on Capitol Hill with over 25 offices, mostly on the Senateside, both Republicans and Democrats. I think everybody agrees: I youre deceased, your name should notbe on a voter registration list. Everyone agrees: I you move rom one jurisdiction to another, particularly

within a state but also rom state to state, that it should be relatively easy to move your voter registration

with the appropriate saeguards so that you can vote. I think everybody agrees that only U.S. citizens shouldbe on voter registration lists and that everybody who is eligible to vote should be able to register to vote.

It makes sense to do everything we can to minimize errors on these voter registration lists to reduce litigation.Some advocate or automatic registration. I youre eligible to vote in a particular jurisdiction, your nameshould automatically be added. Tere are variations o that automatically added to a list, but with theability to opt in, or opt out. Some hold sincere belies that each person has an obligation as a citizen to takethe affirmative step to register to vote, as is required with our current opt-in system. Tere are concernsabout privacy and security issues with government private databases who accesses and controls the data.And, o course, where is the money going to come rom to implement any changes. So even though there

are lots o little problems identified there, we did come away rom this process the last our years eeling asthough there is a lot o common ground. We have heard rom both Republican and Democratic Senate andHouse staff that its important to keep these conversations going.


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Breakthrough Reform in Colorado

Myrna Prez and Jonathan Brater

In 2013, as many legislatures passed laws to improve voting as to curb rights a shift in

momentum. The most sweeping bill: Colorado passed comprehensive election reform, joining

Maryland, Oklahoma, Virginia, West Virginia, and others to expand rights.

This article appeared on The Huffington Post, May 16, 2013.

State legislatures across the country are hard

at work expanding the right to vote. Already,more than 200 bills to improve voting access havebeen introduced in 45 states in 2013. Friday inDenver, Gov. John Hickenlooper made Coloradothe latest to expand rights, joining Maryland, NewMexico, Oklahoma, Virginia, and West Virginia.More legislation is awaiting signature in Florida.o be sure, some states continue to push needlessrestrictions on the ability o citizens to participate inelections, and voters and their advocates must remain

vigilant against any such efforts. Still, the trend isunmistakable: Aer years o backsliding, states areembracing ree, air, and accessible elections.

In many cases, the bills have enjoyed broadbipartisan support, another encouraging trend.Legislators are expanding access to the ballot in a

variety o ways, rom reducing the burden o voteridentification requirements, to modernizing voterregistration, to expanding early voting.

Colorado provides a great example. Te VoterAccess and Modernized Elections Act includesa number o provisions that would make it easierto register and vote. With the governors signatureFriday, Colorado is now the 11th state to enactElection-Day registration, which leads to higherregistration rates and turnout. Te bill institutes asystem o portable registration, so that when votersmove they can still cast a ballot which will count. Italso establishes a bipartisan election modernizationtask orce, paving the way or uture reorms.

Further, the bill eliminates the problematic

inactive ailed to vote status that led to votersbeing denied ballots in certain elections simplybecause they had ailed to vote a single time.

Te Voter Access and Modernized Elections Actis truly a comprehensive election reorm bill. Andthe most promising development is the bipartisan

way it was conceived. Te Colorado CountyClerks Association the officials who actuallyrun elections, and come rom both political parties worked with lawmakers, community groups,and election officials to hammer out a compromisethat expands voting access and works or electionadministrators as well.

Te Colorado example and the broader trend o

expansive legislation are a welcome change romthe 2011-12 legislative session, when partisan statelegislatures across the country passed a wave orestrictive voting laws. Beore the 2012 election, 19states passed 25 laws and 2 executive actions that

would make it more difficult to register and vote. Butdespite this effort to restrict voting rights, voters andcivil rights advocates eventually prevailed. Tanks tothe actions o citizens, courts, and the Departmento Justice, by November 2012, all the worst measureshad been reversed, blocked, or blunted.

After years of backsliding, states are

embracing free, fair, and accessible elections.


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29Voting Reform

Yet problems persisted on Election Day. Our outdatedvoter registration system, insufficient saeguards orvoter access, and inadequate standards or votingmachines and poll workers led to hours-long lines in

many polling places. Commenting on the voters stillwaiting in line to vote as he gave his victory speech onelection night, President Obama remarked, we have tofix that.

Te positive developments in 2013 show this message isgetting through. Even in Florida, which saw some o the

worst voting restrictions and the longest voting lines,legislators passed a bipartisan bill aimed at decreasing

wait times. Better than merely stemming the tide orestrictive laws, voters and election officials are nowenjoying a positive wave o their own as more and morestates move to expand voting access.

Unortunately, some state legislatures continue toinsist on making it harder or people to vote. Amongthese dubious outliers is North Carolina, which is

considering bills that would reduce the early votingperiod, end same-day registration, make it harder orcitizens who have completed their criminal sentencesto regain their voting rights, and increase the powers

o untrained challengers to try to prevent registeredvoters rom casting ballots. Others would make thestates voter ID law more restrictive by limiting the typeso acceptable IDs and impose a tax penalty or parentso students voting in their college communities. Tesesuppressive voting laws are exactly the type o backward-looking, partisan, and anti-participation moves that

were rejected in 2012.

North Carolina is out o step with the times, and i itdoes not reverse course, it risks finding itsel on the

wrong side o history. Te story o 2013, at least thusar, has been one o lawmakers moving to make it easier,not harder, or voters to participate in our democracy.Hopeully, the states not yet part o that story will startmoving in the right direction.


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Harnessing technology to improve voter registration alls squarely within

the Presidential Commission on Election Administrations charge to makerecommendations or the efficient management o voter rolls and pollbooks.

We urge the Commission to recommend that states use electronic systems tomodernize, simpliy, and enhance the security o voter registration and voterrolls. By managing voter rolls with updated technologies and tools, states willalso better ensure that all eligible voters have the opportunity to cast theirballots without undue delay, as well as eliminate many o the obstacles votersace when attempting to cast ballots.

Te need or reorm is great. Voter registration is the single biggest electionadministration problem in the United States. A 2012 Pew study ound that 24million registrations nationwide are invalid or have serious errors, such as anincorrect address. A system in which 1 in 8 records has serious errors raises the

prospect o raud and manipulation. Further, more than 50 million Americans,or 1 in 4 eligible citizens, are not registered to vote. Tis leads to problems onElection Day. Stephen Ansolabehere examined election data and determinedthat in 2008, up to 3 million eligible citizens could not vote because o problemsrelated to registration. Recent data suggest this problem has not abated. Inthe 2012 election, 2.8 percent o in-person voters experienced registration

problems, up rom 2.0 percent in 2008.

Te paper-based voter registration system used in many jurisdictions is the principalsource o the problem. It relies on orms with illegible and incomplete inormation,

which election officials must then transcribe. Tis leads to urther errors stemmingrom misreading orms or making typos. Registrations are difficult to update,meaning voter registration addresses do not match actual addresses. Tis outdatedsystem is wasteul and inefficient, and relies on 19th-century technology that isout o step with the kind o electronic transactions citizens have increasingly cometo expect in all other aspects o modern government, business, and lie. Tis createsneedless barriers to voting, opportunities or raud, and delay and conusion at

polling places which in turn leads to long lines on Election Day.

Presidential Panel Can Modernize Elections

Wendy Weiser and Jonathan Brater

After long lines marred the 2012 election, President Barack Obama created a bipartisan

commission to improve voting. The panel held a series of public hearings last year. Below is

a summary of the Brennan Centers key recommendations. The commission report, issued in

January 2014, embraced many of the Centers proposals.

Excerpted from written testimony submitted at a public hearing of the

Presidential Commission on Election Administration on September 4, 2013,

in Philadelphia, Pennsylvania.


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31Voting Reform

Registration errors contribute to long lines in two significant ways. First, poll workers waste time searchingpollbooks or names that have been improperly le off the rolls or misspelled, or when they attempt todetermine whether a voter is registered elsewhere. Second, voters with registration problems oen mustcast provisional ballots, which take extra time and orce poll workers to divert their efforts rom assisting

other voters.

Based on our research, we recommend states upgrade their registration systems in our specific ways:

Use Electronic Registration: When eligible citizens interact with state agencies, they should have theopportunity to register seamlessly, and the agencies should electronically transer the inormationcollected rom consenting applicants to election officials without relying on paper orms.

Make Registration Portable: Once an eligible citizen is on a states voter rolls, she should remainregistered and her registration should automatically move with her as long as she continues to residein that state.

Provide Online Registration: Allow eligible citizens to register to vote, and view, correct, and updateregistration inormation online.

Ensure a Safety Net: Eligible citizens should be able to update and correct their registrations up toand on Election Day.

Not surprisingly, these reorms are popular and enjoy bipartisan support. Te majority o states at least43 have already implemented at least one element in recent years. Te momentum has continued inthe 2012-2013 legislative session. At least 25 states introduced bills to modernize registration in whole or

in part. Several bills passed, including a wide-ranging modernization bill in Colorado, a bill in Marylandto expand same-day registration during early voting, electronic registration in New Mexico, and onlineregistration in Illinois, Virginia, and West Virginia.

A. States Should Implement Electronic Voter Registration at Government Agencies

States should electronically collect and transer voter registration inormation rom citizens applying orservices at state agencies to election officials. Since the passage o the National Voter Registration Act(NVRA), states have provided voter registration opportunities at departments o motor vehicles, publicservice and disability agencies, and other designated agencies. In many cases, agencies continue to rely on

ink-and-paper voter registration orms, limiting both the effectiveness o, and compliance with, ederallaw. But there is no reason or the registration process to generate new paperwork when an individual hasalready provided inormation to obtain, or example, a drivers license or veterans benefits. Instead, uponconsent, the agency can electronically transer the already-collected inormation much o which is thesame as that needed to complete a voter registration application, along with the inormation specific to theregistration process to election officials.

States with electronic registration consistently find it creates more secure and accurate rolls. Electronicsystems reduce problems stemming rom paper orms, such as incomplete and illegible inormation anddata entry errors. In 2009, Maricopa County, Arizona, examined registration orms containing incomplete,inaccurate, or illegible inormation and ound that although only 15.5 percent o registrations were done

on paper, these accounted or more than hal the flawed orms. Tis means electronic records were fivetimes less likely to contain errors.


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Electronic registration also increases registration rates at the agenciesimplementing it and improves NVRA compliance. Virtually every state thathas adopted electronic registration at DMVs experienced a sharp jump in voterregistrations (including updates) at those agencies. For example, in South

Dakota, electronic registration led to a sevenold increase in DMV registrationsbetween 2003 and 2008. When Kansas and Washington began electronicallytranserring voter inormation in 2008, DMV registrations nearly doubled.

Finally, electronic registration is more efficient, saving money and reeing upresources or other election administration needs. Maricopa County ound itcosts only 33 cents to collect and process an electronic registration, as opposedto 83 cents per paper orm. And other states have reported low one-timestartup costs that are quickly offset by the savings Delaware saved $200,000

with electronic registration, and Washingtons Secretary o States office saved$126,000 in the first year alone, with additional savings to counties.

For all these reasons, electronic registration at voter registration agenciesis increasingly popular. At least 23 states have some orm o electronictransmission o voter inormation at DMVs, and in some states at other voterregistration agencies as well. Full implementation o electronic registration atevery appropriate state agency can build upon this progress.

1. Incorporate Electronic Registration at as Many AppropriateAgencies as Possible

We recommend that states build upon the progress made at DMVs byexpanding electronic registration to as many state agencies as possible. Tis

will maximize the effectiveness o agency-assisted registration by expandingit beyond the DMV population. Tere is movement toward expandingelectronic registration at other agencies, including in Kentucky, where socialservice agencies use a partially electronic system, our research ound. And bothCaliornia and Oregon recently considered legislation to implement electronicregistration at all NVRA agencies.

Appropriate agencies or electronic registration include all agencies legallyrequired to provide voter registration services, those that serve the largestnumber o eligible citizens, those that serve populations not captured on otheragencies lists, those with computerized records, and those that already capturemost o the inormation required or voter registration.

2. Minimize the Use o Ink-and-Paper Forms

States should design their electronic registration systems to minimize the useo ink-and-paper or mail orms during the course o electronic registration.Te optimal approach is a ully electronic transer model. Tis would involveagency employees transerring an applicants inormation in an electronic

ormat that election officials can review and directly upload into the voterregistration database. Less optimal is a partially electronic system, in whichinormation is sent electronically, but the agency must still print and mail theregistration orm or other inormation to election officials. Electronic transer

States shouldelectronically

collect and transfer

voter registration

information from

citizens applying

for services at state

agencies to election

officials.


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33Voting Reform

is better because it requires less paper and eliminates another level o data entry two outcomes thatreduce costs and errors.

At least 17 o the 23 states with some level o electronic registration at DMVs have a ully electronic

transer process. Tese states demonstrate the myriad options agencies can use to electronically transervoter inormation to election officials. Arizona includes a voter registration questionnaire on its paperDMV orm. I an applicant is eligible and consents to register, the DMV transers the inormation in anelectronic ormat to a secure site. Te statewide voter registration system then retrieves the inormationand distributes it to county election officials or verification. Maricopa County reports this has led to costsavings and increased reliability, and other states have successully emulated Arizonas model. Pennsylvaniaintegrates the registration application with an electronic DMV application orm. DMV users enterinormation at sel-service computer terminals, using an electronic application that includes questionsabout voter registration. Pennsylvanias model also helps reduce data-entry errors and protects individualsrom having to share potentially sensitive inormation, such as party affiliation, with agency employees.

3. Use Mechanisms or Signature Collection

States should use efficient mechanisms to collect a registrants signature during or aer the course o theelectronic registration process. Tere are multiple methods and points in time or capturing an applicantssignature beore her vote is cast. Tus, the inability to capture a hard signature at the time o electronicregistration should not render the process incomplete. Whether election officials capture a signature rom

pre-existing records, at the time o electronic registration, or at some other point beore voting, that stepshould not interere with a registrants ability to cast a ballot that counts. States have had success with a

variety o approaches.

Te majority o states with electronic registration transer a digital copy o each individuals wet signaturerom the individuals DMV record. Tis is an efficient approach or registrants already in the DMV system.Other registration agencies, such as social services and veterans agencies, could implement a similar systemby collecting electronic signatures during transactions. Some states, such as Delaware and New York, use a

pad and stylus to capture an electronic signature. Jurisdictions can also consider other methods o electronicsignature capture, such as touch-screens at government offices, tablets, and smart phones.

B. States Should Make Registration Portable

Te second key improvement to voter roll management is making registration portable. We recommendthat states have policies that ully effectuate portable registration. Portable registration means that as longas an already-registered voter resides within the state, she remains registered and her registration moves

with her there is no need to fill out a new registration orm at a new address. o accomplish portableregistration, states should capture address changes beore and up through Election Day. Te methodsor accomplishing this include automatic address and name changes through electronic registration atgovernment agencies, online address and name updates, and mechanisms to enable voters to update theiraddresses and names and vote on Election Day.

Making registration portable will substantially reduce one o the major sources o inaccuracy in the rolls:incorrect addresses. According to Pews 2012 study, o the 24 million registrations that are significantlyinaccurate, hal contain an incorrect address. Better mechanisms or keeping registration addresses up to

date are critical in our mobile society, in which 11-17 percent o Americans move in a year. Better managingchanges in registration addresses would alleviate a potential threat to election integrity.


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Studies also suggest that making registration

Documents

Democracy & Justice: Collected Writings, Vol. VII