News & Politics

Here Are 6 Troubling Trendlines in American Democracy

How will Kennedy's retirement, "blue wave" voters, and the 2020 Census affect our elections?

Photo Credit: Rena Schild / Shutterstock

As the nation marks Independence Day this week, there’s little to celebrate about the health of American democracy and the prospects for improvements to the voting process. A half dozen trends and news developments in the past two weeks have underscored that anti-democratic features of American elections are stubbornly enduring.

While there were some marginally positive developments, such as a federal court giving the Trump Administration a hard time over its efforts to add a citizenship question to the 2020 Census—which critics say will prompt undercounting non-whites, the landscape facing longtime advocates of greater electoral participation is discouraging.

That’s the sad bottom line, despite a few surprising victories in late June’s primaries—notably progressive Democrat Alexandria Ocasio-Cortez winning a congressional primary against longtime party boss in New York City and Ben Jealous winning the same party’s gubernatorial nomination in Maryland. On the other hand, for all the fervor that voters exhibited, overall turnout was still relatively low, the historic pattern in primaries.

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Here are a half-dozen articles from the past two weeks that reflect some of the best reporting or analysis on the most important trends in voting.

1. The Supreme Court’s voting rights rulings were terrible, but the Court could get a lot worse. Years ago, the University of California Irvine law school’s Rick Hasen created the most-respected election law blog, where, among other things, he regularly gives his take on this vast topic. He most recent piece for Slate, How Justice Kennedy’s Successor Will Wreak Havoc on Voting Rights and American Democracy, is a sobering reminder of how the just-retiring justice was the author of some of the most damaging election law decisions in recent decades—damaging if you think that empowering big money and restricting voter participation are harmful. Clearly, conservatives disagree.

“Kennedy was the author or in the majority in three of the worst election law cases the court decided in the last two generations: Bush v. Gore (2000), Citizens United v. FEC (2010), and Shelby County v. Holder (2013). It’s worth looking back at Kennedy’s bad voting rights decisions—and how much worse they could have been—when thinking about his replacement,” Hasen writes. “It’s entirely conceivable that the next justice may become part of a new majority… to hold that voters cannot use initiatives to establish fair redistricting commissions and nonpartisan election rules applicable to federal elections. Further, the court could hold it unconstitutional for state supreme courts to strike down partisan gerrymanders of congressional districts on state constitutional grounds.”      

Hasen’s comments come against a series of recent Supreme Court decisions—as the court ended its term in June—that basically evaded a once-a-decade chance to rein in extreme gerrymanders, or segregating voters by party to engineer likely popular vote majorities. The Court’s conservative majority also gave the green light to partisan voter purges in an Ohio case. In both cases, the conservatives didn’t elevate the principle that votes should carry equal weight, and the right to participate should take precedence, compared to being on the receiving end of partisan gaming of the rules by which people vote.

Hasen noted there were times when Kennedy seemed to agree with liberals, such as a famous 2004 case where he said there ought to be a limit to partisan gerrymanders—and urged potential litigants to document the negative impacts of extreme gerrymanders, or segregating voters by party when drawing districts. But when those gerrymandering suits finally came before the court this past term, Kennedy’s would-be search for reasonable political rules was nowhere to be seen in the majority opinions. And then he resigned.   

2. Meanwhile, the fight over politicizing the 2020 Census continues. On Tuesday in New York City, a federal judge was deeply critical of the Trump Administration’s last-minute push to add a question about citizenship to the U.S. Census. Judge Jesse Furman of the Southern District of New York said the effort was a “strong showing of bad faith” because it “deviated from standard operating procedure” by adding the question without prior vetting by academics and statisticians. Mother Jones’ Ari Berman has reported on the citizenship question since the story broke earlier in the year, where he correctly has tied the use of citizenship status to pre-Civil Rights Movement racial discrimination. More than a dozen states have sued to stop the inclusion of the citizenship question.

“The Census has not asked respondents about their citizenship status since 1950,” his latest report for Mother Jones said. “Civil rights groups say the citizenship question will depress response rates from immigrants, imperil the accuracy of the Census and shift political power to areas with fewer immigrants.” Berman noted that the question comes from the white nationalist corner of Trump’s base—led by former advisor Stephen K. Bannon and Kansas Secretary of State Kris Kobach. But the deeper you look, the full extent of the administration’s cynical power play emerges. As others have reported, Attorney General Jeff Sessions said the citizenship question was needed to enforce a section of the Voting Rights Act of 1965 to protect minority voters. That rationale is beyond dubious when considering how Trump’s Justice Department has gone to court numerous times to oppose more a more open and equitable voting process—switching sides from the stance taken by the Obama administration.

3. America remains two different countries when it comes to voting. It would be wrong to think that the right to vote is under attack all over America—it’s not. It’s been under attack in the swing states that frequently determine the winners in presidential elections. These are the same states where extreme gerrymanders by the GOP, in 2011 following the last Census, created red supermajority U.S. House and state legislative delegations. But as Alan Greenblatt reported for Governing magazine, “Democrats, conversely, are doing everything they can to make voting easier.”

Washington Goy. Jay Inslee and New Jersey Gov. Phil Murphy signed bills last winter creating automatic voter registration—bringing that automatic enrollment to 12 states. Nevada will soon vote on AVR. Maryland, Nevada, and Michigan will soon vote on versions of same-day registration. And Florida will vote this fall on restoring voting rights to non-violent former felons—possibly increasing its voter rolls by 10 percent.

Greenblatt noted that progress might only happen when the process is moved from the legislature to ballot boxes. “Case in point: The Nevada Legislature, which is controlled by Democrats, last year approved an automatic voter registration bill,” he wrote. “But GOP Gov. Brian Sandoval vetoed it, warning that it could expose residents to legal liability if it turned out they weren’t eligible to vote.”

“In recent years, progressives have enjoyed a fair measure of success with ballot initiatives on issues including minimum-wage increases and marijuana legalization,” he said. “They believe they can similarly convince the voters themselves that expanding the franchise is the right way to go, despite concerns about election security.”

4. Cyber securityin voting has gone mainstream. Voter turnout in some of 2018’s primary elections may be up slightly compared to past midterm years, but the focus on securing every step of the process has received unprecedented attention this cycle. Even former president Bill Clinton has weighed in, saying during his most recent book tour that paper ballot-based voting systems are the most transparent and reliable.   

Most of the security work has gone on in relatively closed settings—or technical forums where the government has been reluctant to discuss current threats. But a firsthand report by David Becker at the Center for Election Innovation profiles what Colorado did in its recent primary offers a strong counterpoint to the all-too-common fear-based narratives surrounding 2018 voting doomsday scenarios. While it’s wonky and dry, it’s also real evidence that disrupting the vote is getting harder—not easier.

“In addition, information sharing about potential cyber threats occurs throughout the day,” Becker notes. “Through efforts like the Elections Infrastructure Information Sharing and Analysis Center (EI-ISAC), the federal government (DHS and others) and state and local election officials are sharing information in real-time about any intrusive activity, enabling better coordination and security. These coordinated efforts are layered on top of the cybersecurity that each office maintains on its own, including sophisticated monitoring of all systems, sites, and devices. For example, in Denver County, virtually every voting site, drop-off box, and room in their facility has 24-hour video surveillance.”

5. Meanwhile, about that blue wave. Becker’s biggest point is that the higher the voter turnout, the harder it is for any potential meddler to be effective. “Every additional voter makes it more difficult to successfully interfere with our elections, and provides an early warning system to any potential tampering,” he tweeted after his Colorado trek. “So don’t get mad. Don’t get even. Don’t get despondent. Don’t get sanctimonious. Get active. As in being an active registered voter. And then vote. It’s easier than ever, and it’s the one thing everyone can do to be a patriot. Start the process here. https://vote.gov.”

On the other hand, as ex-Oregon Secretary of State Phil Keisling wrote for Governing, voter turnout is still low—especially among young voters. “Those who are predicting, expecting – or simply hoping for – a surge of voter turnout, especially among younger citizens, in this year's elections need to reflect on these sobering percentage figures: Oregon (34), Idaho (32), Illinois (25), West Virginia (24), Nebraska (24), Kentucky (23), Arkansas (22), Ohio (19), Georgia (19), Indiana (18), Texas (17), Pennsylvania (17) and North Carolina (14).”

“A typical congressional district contains between 400,000 and 500,000 registered voters,” he noted. “Pennsylvania's newly drawn 18 congressional districts generated 21 contested party primaries on May 15, and in 13 of those races the winner received fewer than 25,000 votes.” (Indeed, in Alexandria Ocasio-Cortez’s defeat of Rep. Joe Crowley in New York’s 14th House district, only 27,658 people voted.)

His solution? “The evidence is strong that we should stop asking voters to travel to the polls. Instead, we should bring the ballots to the voters,” Keisling said. “What happened in Nebraska’s May 15 primary is perhaps the clearest evidence of the extraordinary power of mailing all primary voters their ballots rather than requiring them to traipse to the polls or pre-arrange to receive an absentee ballot. Garden County received permission from Secretary of State John Gale to run a vote-at-home election in its May 15 primary. Turnout in Nebraska's other 92 counties averaged 24 percent; among Garden County's 2,000 voters, it was 59 percent.”

Kiesling’s column underscores that if there is the political will, there are ways to increase public participation and investment in voting and the political process. But not every state or their governing classes share that sentiment. Indeed, at the very apex of the American constitutional pyramid, the Supreme Court’s conservative majority has not made voting their foremost priority in election jurisprudence. And the Trump administration, like the GOP writ large, has no problem tinkering with the rules of the process to game partisan outcomes. Still, that hasn’t stopped blue and otherwise purple states from trying to make voting easier and more accessible, and civil servants in every state from taking new steps toward cyber security of voting systems.

But as Becker and Kiesling both note, that leaves one big variable on the table: people still have to cast ballots—whether they are delivered to them or at polling places.

This article was produced by Voting Booth, a project of the Independent Media Institute.      

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Steven Rosenfeld is a senior writing fellow of the Independent Media Institute, where he covers national political issues. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).