Voting Rights at the Crossroads

A constitutional lawyer dissects two competing trends in voting rights—and explains why automatic voting registration is the “biggest, immediate” solution for voting reform.

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The November election will be the first presidential contest to take place since the U.S. Supreme Court ruled to strip some of the major protections of the Voting Rights Act of 1965, which required states with a history of voter discrimination to get federal clearance before changing their voting laws. Seventeen states will have new voting restrictions in place for the first time. Among them, Wisconsin, Texas, and North Carolina have tightened their photo ID requirements; Kansas now requires proof of citizenship to cast a ballot; and Arizona has made it a felony for people to collect ballots from others and take them to the polls.

Some people—mostly Democrats—say these laws disenfranchise poor and minority voters. But others—mostly Republicans—defend the stringent requirements as part of an effort to prevent voter fraud (an occurrence scholars largely consider to be a myth, and in some states, is more rare than a lightning strike).

But just as some states are making it more difficult to vote, others are passing legislation to make it easier.

The Illinois House and Senate approved a measure on Tuesday to register people to vote automatically when they renew their driver’s licenses at the DMV (with an option to opt out). If Illinois Governor Bruce Rauner signs the legislation—something he has shown support for in the past—the Prairie State will be the fifth state to enact automatic voter registration, after Oregon, California, Vermont, and West Virginia. Dozens of other states are considering similar legislation.

The convergence of these two competing trends has brought the issue of voting rights to a boil in the United States, and Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law and the author of the new book The Fight to Vote, says America has reached a “tipping point” in its democratic process.

I talked with Waldman about this tipping point, why he thinks automatic voter registration is the best solution, and why every state doesn’t already have it. Our conversation has been edited and condensed for clarity.

Elaine Godfrey: Is voting a privilege or a right?

Waldman: Americans have grappled for centuries over whether voting is a right or a privilege. But in fact, it is viewed as a core right of citizenship and membership in the American community. The ‘right to vote’ phrase did not appear in the original Constitution, and the states were left with the task of deciding who could vote. But over time, the right to vote has been added to the Constitution repeatedly, and it’s now recognized as a real right. The question is, how do we give life to that right? How do we protect it? How do we make that vote meaningful?

Godfrey: Has voting always been a partisan issue?

Waldman: One of the lessons of history is that it shouldn’t be surprising that voting is a partisan issue. There have always been some people pushing to expand the right to vote. Right now, the most restrictive voting laws are being passed by Republican legislatures, and other times it’s been Democrats. What’s encouraging is that we now see both parties engaged in the fight on this issue.

Godfrey: Your book covers the evolution of voting rights throughout the past two centuries. Why did you write this book now? Where is America on the timeline of voting rights?

Waldman: This is a time of great and intense pressure on many of the core institutions of American democracy. We’re seeing battles over who can vote, over the rules of how we run elections, of the kind we haven’t seen in years and years. Seventeen states will have new laws on the books for the first time in a high turnout national election that make it harder for people to vote. It’s the first presidential election in half a century without the full protection of the Voting Rights Act.

In the last election, voter turnout had plunged to its lowest level in 72 years. So American democracy is facing real stresses, and people are having to fight for their right to vote. And it turns out that these fights are intense, and they are consequential, but they’re not new. The fight to vote, it turns out, has been at the heart of American politics from the very beginning.

Godfrey: Is it counterintuitive to you that every American doesn’t have an automatic right to vote? Why don’t we already have automatic voting in every state?

Waldman: It’s one of the anomalies of the American system. We’re one of the only democracies that places the burden of registering to vote on the individual principally. All the other modern democracies do it differently: Canada, England, Germany, wherever you look. The concept behind automatic registration is to shift the presumptions: For the first time, the government takes on the responsibility of ensuring that everybody who’s eligible to vote is on the rolls. It’s probably the single most significant change in how we run voting that could be made right now.

Back in the beginning, there wasn’t voter registration because people voted in villages where everybody knew each other. It was first introduced in the late 1800s, and it’s understandable why you’d want to have strong lists of who could vote. But the way it was instituted was done in a way that made it much harder for immigrants, working people, and non-English speakers of the time to vote.

Godfrey: What’s the argument for automatic voter registration?

Waldman: If automatic registration were implemented across the board, you would add 50 million eligible voters to the rolls, it would cost less, and it would curb error and the potential for abuse.

There’s encouraging bipartisan support for it. After the long voting lines in the 2012 election, President Obama appointed a bipartisan national commission chaired by Mitt Romney’s lawyer and [Obama’s] own lawyer. This panel came up with a bunch of really good reforms that pointed [toward automatic registration]. It was tremendously bipartisan and respected.

One of the things I like about automatic voter registration is that, in a sense, it solves the problems articulated by the left and right. It enfranchises tens of millions of people who are not on the rolls. For people who say they’re worried about voter fraud, it helps address that, as well.

Godfrey: Tell me about the new laws being implemented in states like Texas and Wisconsin to prevent voter fraud. What do those look like?

Waldman: These new laws take a variety of shapes, but they’re all crafted carefully, in a way that makes it harder for some people to vote, especially voters of color, students, poor people—often poor people. Some of them are voter ID laws. I’m not against voter ID; I think it’s fine for people to have to prove who they are. But the problem is requiring ID that lots of people do not have.

Texas has perhaps the harshest voter ID law in the country. You cannot use your University of Texas student ID as a government ID, but you can use your concealed-carry gun permit. The mischievous part of the intent of that law is pretty plain. A federal court found that there were 608,000 registered voters who didn’t have the ID, and it could be expensive, sometimes up to hundreds of dollars to get the paperwork needed.

Then there are cutbacks on early voting. One of the reasons turnout is low is that you have elections on the first Tuesday after the first Monday in November. That’s very inconvenient in the modern age, especially for working people, people who have to care for their children. So, one positive development has been expanding opportunities to vote in different ways: About one-third of voters now don’t vote on Election Day.

Very few of these new laws say in the manner of the brutal repression of the past, “You no longer can vote,” but they make it very, very hard for many people to vote. And that can have a really significant impact. We’ve seen already plenty of reason to be worried about the impact of these laws.

Godfrey: Some people would defend those laws on the premise that there need to be certain barriers to voting, that participating in the voting process is an “earned right.” How would you respond to that?

Waldman: You have a lot of people saying, “It should be a little hard to register to vote.” Voting is a core element of citizenship. The idea that we should erect barriers to it because it somehow builds character is at odds with the most basic tenets of American democracy, especially barriers that are harder for some people than for other people.

All men have to sign up for selective service. Everybody has to pay taxes. Everybody has to serve on juries. Why would we say that when it comes to voting, the most fundamental of rights, you need to work a little extra hard to make your voice heard?

James Madison, behind closed doors at the Constitutional Convention indicated that he thought maybe a property requirement wasn’t a bad idea, but when it came time to selling the idea to the public, he was eloquent in his defense of the right to vote. In Federalist 57 he wrote:

“Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.”

That’s as good and elegant a credo for American democracy as anyone’s come up with since.

Godfrey: Why are voting rights such a pressing issue right now?

Waldman: You’re right that there’s a lot of ferment. You have some states making it harder to vote and other states enacting bold pro-voter reform. They’re doing both. It’s not all headed in one direction or another.

These issues of the rules of democracy are most intensely contested when there’s a great deal of change in American society. We have surging demographic change and new groups rising in numbers, and existing political forces fear the change and think that they need to change the rules to slow it down. It also comes at a time when people feel that the institutions of government are not working or representing their interests. This is a time of demographic change, of widening economic inequality, and of a sudden and profound recognition of both of these facts.

Godfrey: Are there past examples of what we’re going through now?

Waldman: Through American history, those are times when these fights over the right to vote are the most intense. Just like in 1800, when the Federalists realized the new states coming into the Union were full of small farmers who would vote for Thomas Jefferson, and they tried to change the voting rules so that people couldn’t vote for president anymore in a few states.

In the late 1800s in the South, the Jim-Crow laws were put into effect in part because the elites were worried that white populist farmers and black voters would make an alliance. And in the North, in cities filled with immigrants, there were efforts to make it harder for them to vote.

Now, we have surging participation rates by African Americans, Latinos, and Asian voters and the election of first African-American president. And the states with the fastest-rising voting rates of black and Latino voters are the states most likely to have laws in place to make it harder to vote.

In the late 1800s, democracy really was in retreat, you had voter suppression and Jim-Crow laws in the South that took away the right to vote for African Americans, and you had efforts to curb voting by immigrants and working people in the North; you had for the first time, the new role for big money in American politics, from the robber barons of the time, and voter turnout started to go down. American democracy really went backwards.

But after that was the Progressive Era, this period of reform where you had direct election of U.S. senators, and women won the right to vote. It was significant political reform in reaction to what happened in the Gilded Age.

Godfrey: Are we about to enter a new Progressive Era?

Waldman: I feel as if we’re at a tipping point right now. We could really slide backwards with less participation, making it harder and harder for people to vote, with a bigger role for big money. Or this could be a period of rekindled optimism and renewal of the institutions of our democracy. Just in the law year or two, automatic voter registration is passing, redistricting is passing, and there are new forms of creative public financing to improve campaign finance.

There’s a lot happening, but we could go either way.

Godfrey: Will the November presidential election affect which way we go?

Waldman: This election will be a big part of the story. First of all, it’s clearly going to be very hard-fought, and these issues are part of the fighting. We saw already in the primaries that these voting law changes could have an impact.

In Arizona, there were long lines in heavily Hispanic Maricopa County. That would not have been allowed if the Voting Rights Act was still in full effect. We saw lines in Wisconsin and hundreds of thousands of people dropped from the rolls in New York. Who knows why? But it is, at the very least, incompetence.

This is the first election in a long time where how American politics works, how American government works, who it’s working for, are major topics of debate—not just what policies should be enacted.

Godfrey: Would automatic registration actually ensure that more people will vote?

Waldman: There are a lot of reasons why voter turnout is so low in the United States. Registration is only one of them, but there’s starting to be great new evidence that automatic registration will lead to higher turnout. In Oregon, the first state that has put this into effect, they tripled registration at the DMV, and there’s good reason to think it’s one of the reasons voter turnout was so high [in the Oregon primaries].

There are a lot of things that have to happen, but automatic registration is the biggest, immediately available change that can make the biggest immediate difference.