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The Election is Rigged After All

Voting rights advocates have won a string of court battles, but state election officials have found ways to restrict early voting anyway—often at the behest of GOP leaders. ----- Rethinking about our two party system and our election system: Ranked-choice voting opens up elections to a broader, more diverse range of candidates and ideas. ----- Modernizing our voter registration system.

People stand outside the Supreme Court before the start of a rally during arguments in the Shelby County, Alabama, v. Holder case on Wednesday, Feb. 27, 2013, in Washington.,AP Photo/Evan Vucci

The Election is Rigged After All -- Against African Americans
This Maine Initiative Could Shake Up the Two-Party System
An Essential Element of Emergency Preparedness: Modernizing Our Voter Registration System

The Election is Rigged After All -- Against African Americans
Eliza Newlin Carney
The American Prospect
October 27, 2016

In the face of Donald Trump’s declarations that this election is “rigged” and his requests to his backers to watch the polls in “certain areas,” voting rights advocates have labored to set the record straight that voter fraud is a myth and that “ballot security” often adds up to intimidation.

But as early voting gets under way in states around the country, the election is starting to look rigged after all—against voters of color. From Georgia to Texas and Wisconsin, election officials are asking voters for IDs where none are required, failing to process thousands of voter registrations, and limiting early voting so drastically that voters are standing in line for hours. Invariably, the voters affected are African Americans or Latinos, who tend to be more likely to cast their ballots in favor of Democrats.

It’s exactly what voting and civil rights advocates predicted three years ago, when more than a half-dozen states mostly controlled by Republicans enacted a slew of sweeping new voter ID and other limits on voting. GOP legislatures around the country sprang into action within days of the Supreme Court’s 2013 ruling in Shelby County v. Holder to toss out key Voting Rights Act protections.

At the time, Justice Ruth Bader Ginsburg dissented that weakening the Voting Rights Act was “like throwing away your umbrella in a rainstorm because you are not getting wet.” Now it’s raining all over African American voters, despite a string of recent voting rights court victories.

Having convinced several lower courts to nullify strict state voting curbs as discriminatory, voting rights advocates have discovered that winning lawsuits is not enough. In many states, election officials have either directly flouted orders handed down by the court, or have found other ways to sabotage access to the polls—often at the direction of Republican Party leaders.

In Texas, a federal appeals court in July explicitly blocked the state from enforcing its voter ID requirement, one of the most stringent in the nation. (The state had approved only a driver’s license or a gun license for voting.) A federal court agreement specified that voters without IDs may still cast ballots if they sign a declaration and show an alternate ID, such as a utility bill.

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But this week, civil rights advocates reported hundreds of complaints from voters turned away from the polls for lack of an ID, and provided documentation of polling places that display signs and flyers incorrectly stating that voters must have IDs. Part of the problem is the nation’s notoriously ill-trained army of mostly volunteer poll workers. But it probably doesn’t help that some Texas GOP officials exhorted election workers in at least one email “to make sure OUR VOTER ID LAW IS FOLLOWED.”

“Across Texas we are seeing local election officials undermine the weight of the Fifth Circuit’s ruling striking down the state’s photo ID law as discriminatory,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law, in a statement. “Instead of changing the rules, some counties across Texas continue to impose the strict photo ID law and are posting signs that suggest to voters that the photo ID law remains in effect. This is simply unacceptable.”

In North Carolina, another July federal appeals court ruling struck key provisions of a far-reaching state law that had restricted early voting, limited registration, and imposed new ID rules. But the North Carolina GOP’s executive director nonetheless encouraged Republican election officials to reduce early voting hours, limit polling sites and close the polls on Sunday.

Now that early voting has begun in North Carolina, the impact on voters is measurable. 

Now that early voting has begun in North Carolina, the impact on voters is measurable. A half-dozen counties have cut early voting, prompting a 50 percent decline in early balloting compared to the 2012 election, according to Liz Kennedy, director of democracy and government reform at the Center for American Progress, which has put out a series of state-by-state issue briefs on preventing problems at the polls.

In Guilford, a county of 517,600 people where 42 percent of the residents are nonwhite, election officials cut early voting sites from 16 in 2012 to one this year, according to Michael P. McDonald, a voting expert at the University of Florida. The upshot is an 85 percent decrease in the number of in-person Guilford County voters on the first Thursday and Friday of early voting this year, compared with the same window in 2012.

In Georgia, a recent Washington Post report pointed to several particularly egregious voter suppression efforts. Election officials in Georgia have failed to process as many as 100,000 voter registration applications. As in North Carolina, one of the state’s largest counties made early voting available only at a single polling place, forcing voters to wait up to three hours to cast ballots. And in Macon-Bibb County, local officials moved a polling place in a largely African American region from a gymnasium that was under renovation to the sheriff’s office.

“When we complained, we were told if people weren’t criminals, they shouldn’t have a problem voting inside of a police station,” Nse Ufot, executive director of the New Georgia Project, a progressive group, told the Post. After activists objected, the polling site was moved to a church.

Led by the Lawyers’ Committee for Civil Rights Under Law, voting rights advocates have set up an election protection hotline and deployed volunteers to monitor voting irregularities around the country, as they do every year. But many new voting laws are still being fought out in court, potentially confusing election officials and voters alike. And the number of polling place watchdogs deployed by the Justice Department will be much smaller this year. That’s because the Shelby ruling concluded that states with a history of discrimination no longer need special federal oversight. As this year’s early voting demonstrates, that finding was woefully premature.

Eliza Newlin Carney is The American Prospect's senior editor

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This Maine Initiative Could Shake Up the Two-Party System
Hendrik Hertzberg
The Nation
October 27, 2016

Say this for the two-party system: At least it’s better than the one-party system.

Apart from that, though, the two-party system doesn’t get much love. Lots of people complain about it, but nobody ever seems to succeed in doing something about it. Attempts to break out of it via third parties eventually trail off into disappointment and futility. Even its defenders typically sound more resigned than enthusiastic. In its unvarying Democrats-vs.-Republicans iteration, it’s been around since the Lincoln administration. We’re stuck with it, goes the received wisdom, so suck it up and live with it. It’s not going anywhere.

News flash: That may be about to change, starting on November 8, in Maine. And you know what they say: “As Maine goes…”

Up in the easternmost state of the Union, an initiative on the November ballot, Question 5, would establish something called ranked-choice voting (RCV) for governor and both houses of the State Legislature. That’s important. It would do the same for primaries as well as for general elections. That’s important, too. But what makes Question 5 of truly national significance is that it would also apply to Maine’s United States senators and its two members of the House of Representatives in Washington. If Question 5 passes, it will be what Joe Biden would call (when he knows there’s a hot mic in the vicinity, that is) a very big deal.

I’ll get to RCV in a moment. First, a caution: The two-party system is not a malevolent conspiracy. It’s not an elite-generated “duopoly” whose designers set out to limit choice, suppress innovative ideas, and marginalize candidates and parties that threaten the comfortable (for some) status quo. It’s not even a system per se. It’s a side effect of a system. The real system is simply the set of electoral rules and customs bequeathed to us from the primitive political technology of powdered-wig days. The two-party pattern is a logical, almost inevitable, maybe even desirable consequence of two main features of that technology: (a) single-member districts, which are inherently winner-take-all, as are elections for executive offices; and (b) plurality elections, otherwise known as first-past-the-post, under which the candidate with the largest vote total wins even if a majority of voters would rather have somebody else. When there are more than two non-negligible parties contending for a single office, one common result is ideological fratricide—the notorious spoiler effect. By voting for the party or candidate you like best, you may help elect the one you like least. Another consequence is to diminish the chances that the outcome will more or less reflect the wishes of a majority. Given these realities, natural selection took its course and, by 1828, gave us roughly what we’ve had ever since: a two-party “system.”

Question 5 leaves feature (a) untouched. But it takes a chain saw to feature (b).

You may already know about ranked-choice voting, also known as instant-runoff voting, but it’s surprising how many well-informed people don’t. It’s pretty simple. Instead of voting for one of three or four or five or a dozen candidates, you rank as many as you wish in your personal order of preference. If one of them gets a majority of first choices, boom: He or she wins outright. If not, the second choices of voters whose first choice was the last-place candidate become those voters’ first choices. Still no majority? The process continues till someone goes over 50 percent.

It would be enough if all ranked-choice voting did was to get rid of the spoiler effect and its lamentable perversities (case in point: Florida, 2000). But the salutary side effects of this system of casting and counting votes go well beyond that. RCV opens up elections, primary and general alike, to a broader, more diverse range of candidates, ideas, and, yes, parties. Because it gives candidates a powerful incentive to be the second (or third or fourth, if the field is big enough) choice of their rivals’ first-preference supporters, it discourages incivility in general, and scorched-earth, zero-sum negative campaigning in particular. By the same token, it incentivizes good manners and a willingness to entertain the possibility of compromise. It guarantees that the ultimate winner will always be someone who’s at least acceptable, however grudgingly, to a majority—and it never yields a winner whom the majority simply cannot abide. It empowers voters to deliver a more nuanced message and allows candidates—who, if the counting goes to more than one round, will know where the votes that put them over the top came from—to receive one.

Maine, not coincidentally, is currently the nation’s most conspicuous example of the perils of first-past-the-post. The Pine Tree State is groaning under the misrule of one Paul LePage, whose tenure as governor has been an uninterrupted tsunami of outrages, substantive and rhetorical. (Earlier this year, the governor declared that the state’s drug dealers are “guys with the name D-Money, Smoothie, Shifty, these type of guys. They come from Connecticut and New York, they come up here, they sell their heroin, then they go back home. Incidentally, half the time they impregnate a young white girl before they leave.” When a Democratic legislator demurred, LePage left him a voice-mail message calling him a “son of a bitch socialist cocksucker,” adding, “I want you to record this and make it public because I am after you.”) How did such a creature get to be governor in the first place? He did it, Trumpishly, by taking 38 percent of the vote in a seven-candidate Republican primary—and then taking 38 percent again in the general, with the rest split mainly between a liberal-leaning Democrat and a somewhat less liberal-leaning independent.

There are related factors that make Maine fertile ground for RCV. The winners of nine of Maine’s last 11 governors’ races were elected with less than a majority. Maine has more registered independents than either Republicans or Democrats. LePage notwithstanding, Maine has a long history of moderate, good-government Republicanism, from Margaret Chase Smith and William Cohen to Olympia Snowe and Susan Collins. One of the US Senate’s two independents is Maine’s former independent governor Angus King, who, like Bernie Sanders, caucuses with the Democrats. And many Mainers are already familiar with how RCV works. The state’s largest city, Portland, is among the dozen or so American municipalities that already use this transformative system to elect their mayors.

As November 8 nears, Question 5’s chances look reasonably good. LePage and the Trumpian rump that loves him are against it, of course, but there has been little organized opposition. On the Yes side, the umbrella Committee for Ranked Choice Voting ( has brought together a formidable coalition of Democratic, Republican, Libertarian, Green, and independent politicians as well as business leaders and civic organizations, including, most prominently, the League of Women Voters. A mid-September poll by the University of New Hampshire for the Portland Press Herald showed a 48–29 lead for Yes, with 23 percent undecided. But success is by no means assured. Undecided voters typically break against ballot initiatives, especially ones they don’t fully understand. Also, questions 1 through 4 are all liberal hobbyhorses: marijuana legalization, a surtax on high incomes, background checks for gun transfers, and a higher minimum wage. By the time even some non-LePage conservatives get to Question 5 (the order was decided by lot), they might just go for No on everything.

But if Maine’s answer to Question 5 is Yes, ranked-choice voting for US senators and representatives is likely to spread to other states. The state-by-state approach has been a seldom-recognized template for electoral reform in our federal system. Well before the 17th and 19th constitutional amendments were ratified, many states were already electing their senators by popular vote and women were already voting, including for president, in nearly half the country, mostly the western half. This time, with any luck, the pioneering laboratory of democracy will be Down East.


Hendrik Hertzberg is a New Yorker staff writer and editorial director of the Nation Institute.

Copyright c 2016 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by Agence Global.

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An Essential Element of Emergency Preparedness: Modernizing Our Voter Registration System
Jennifer L. Clark / Jonathan Hettleman
The Brennan Center for Justice
October 21, 2016

While still recovering from the impact of Hurricane Matthew, citizens in the Southeast had to scramble over the past week to register to vote for this November’s election. Courts in Florida, North Carolina, and Georgia have ruled that these states must extend registration deadlines in certain counties as a result of Matthew’s disruption. And, in Virginia, an overburdened website stymied voters attempting to register online, leading a federal court to extend that state’s registration deadline.

But citizens shouldn’t have to run to the courthouse to protect their eligibility to cast a ballot that counts. While a natural disaster or a technological meltdown highlights the shortcomings of our voter registration system, the outdated and backward process by which we register voters in many of our states creates a perennial headache for voters and election officials around the country. Modernizing our voter registration system to maximize the registration of voters year-round would go a long way to ending disenfranchisement due to natural disasters, technological mishaps, or any of the other things that can and do go wrong in the lead-up to an election.

Online voter registration, in which voters can register to vote and update their registration online, has been a welcome reform, popular with voters and with officials. In fact, 39 states have or will soon have online registration systems in place. However, even with online voter registration, there is a pre-election rush of new registrants, which can crash websites and stop voters from registering. This year in Georgia, anyone who tried to register on the state’s online registration website between the evening of Friday, October 7 and midday on Monday, October 10 was met with an error message. In Virginia on Monday, the last day for the state’s voters to register, the online registration system crashed under the weight of heavy demand. Advocates have estimated that the glitch prevented “tens of thousands” of Virginians from registering. In South Carolina, too, advocates on the ground have reported would-be voters stymied in their attempts to register by the state’s overburdened online voter registration system.

So, while online registration is one essential registration method states should offer voters, it can’t be the only one. In particular, voters need easy and reliable ways to register throughout the year. The best way to ensure consistent and reliably high voter registration is by implementing automatic voter registration. Under automatic registration, eligible citizens who interact with government agencies are registered to vote unless they decline, and agencies transfer voter registration information electronically to election officials. An eligible citizen who visits the DMV in February, for example, will be registered to vote as part of that visit, and won’t need to worry about their registration come October.

We know automatic registration works to steadily grow the rolls because we’ve seen the incredible successes in Oregon and Connecticut, the two states that have implemented automatic registration at their motor vehicle agencies. Since putting its automatic registration system into place this past January, Oregon has on average registered four times more voters per month at the DMV than previously. Connecticut registered more voters at motor vehicles agencies in the first month of automatic registration than in the entire preceding three years.

The good news for voters is that automatic voter registration is becoming increasingly popular. The legislatures in Oregon, California, Vermont, and West Virginia have each passed automatic voter registration, and 21 other states introduced legislation to follow suit in this past legislation session. Connecticut implemented automatic registration through an agreement between the Secretary of State’s office and the DMV.

The next important step for automatic voter registration is expansion beyond motor vehicle agencies. Many would-be voters don’t have a car or a driver’s license, and are unlikely to interact with the DMV. In fact, those populations that are disproportionately underrepresented on our voter rolls — minorities and low-income individuals in particular — are also less likely to drive. Automatic voter registration must be expended to register eligible citizens when they interact with social service agencies, get medical benefits, or register for classes at community college.

Even with online voter registration and automatic voter registration, there will be some would-be voters who fall through the cracks.  For this reason, states should also offer same day registration opportunities, in which eligible citizens can register and vote in one trip. Fifteen states plus the District of Columbia already offer same day registration, allowing eligible citizens to register or update their information at the polls on Election Day. Same day registration also has the benefits of increasing voter turnout by 5-7 percent and decreasing provisional voting, without any increases in voter fraud.

Natural disasters strike and technology is not fail-safe, but democratic participation in elections is far too important to be jeopardized by weather and computer glitches. By diversifying registration methods, voters will have a wider variety of options to ensure eligibility on Election Day. States should implement these systems in order to alleviate last-minute rushes to register and to mitigate the disenfranchisement caused by website crashes, natural disasters, and other barriers to voter registration.


Jennifer Clark is Counsel for the Brennan Center’s Democracy Program, where her work focuses on voting rights and elections. Prior to joining the Brennan Center, she clerked for the Honorable Paul A. Engelmayer of the Southern District of New York and the Honorable Pierre N. Leval of the Second Circuit Court of Appeals.

Jennifer received her J.D. (2011) from Stanford Law School, where she was on the Editorial Board of the Stanford Law Review and a member of Stanford’s Supreme Court Litigation Clinic. She also interned for Senator Charles E. Schumer in his Judiciary Committee Office, at the Policy Division of the Federal Election Commission, and with the ACLU of Northern California.

The 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 laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion.