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How to Stop Voter Suppression… Permanently

Over 250 bills to restrict voter access have already been introduced

Key Points

March 20, 2021 — Since the election of Democrats Joe Biden as President of the United States and Raphael Warnock and Jon Ossoff as Senators from Georgia in a runoff election, the Republican Party has been in a scramble. Despite the massive amount of gerrymandering to have a higher proportion of control than their numbers would normally allow, the trends continue to move away from the Republican Party’s favor. Areas that were Republican strongholds are becoming competitive; areas that were were competitive are becoming Democratic strongholds. Demographics are changing at a rapid pace, even during the COVID-19 pandemic.

In order to reverse these losses, the Republican Party has two avenues. The first is a grassroots movement to find more voters and turn them to their cause either by demonstrating the superiority of the Republican platform or by changing the platform to get disinterested people involved. They are going about this with the latter by becoming more populist and moving away from positions that would be considered sacrosanct to a Republican of just a decade ago. Standing by a long-held belief and letting the chips fall where they may is not the policy of the modern Republican Party.

Still, drumming up support from new and reluctant voters will take time and will not guarantee victory in the short term. Unfortunately, the Political Parties in the United States only care about one thing: getting more votes than their opponents (Democrats are no different in this regard). The margin of victory around the country are razor thin in these competitive areas and races. Thus, if their opponents are getting ever so slightly more votes than they are and they cannot find enough people to vote, the logical solution is to get less people to vote at all, especially people likely to vote for their opponents.

Photo by Jennifer Griffin on Unsplash

In order to accomplish this, at the time of this writing Republicans in 43 States have proposed or filed over 250 different pieces of legislation to restrict access for voters. These take many forms — from limiting the ability to get a mail-in-ballot to restricting the availability of polling stations. Says Cinde Weatherby of the League of Women Voters Texas, “If you can name an improvement, there’s a bill that’s been filed to try and eliminate it.”

To be fair, there are efforts going on to fight these restrictions. For instance, on March 5, 2021 I received an email from Representative David Cicilline (D-RI) that stated in part:

Earlier this week, the House passed the For The People Act (H.R.1), a sweeping reform package that returns power in Washington to the American people.… This landmark legislation will fix what is broken in our democracy. It expands access to the ballot, reduces the corrupting influence of corporate money in political campaigns, and restores ethics and integrity in government. I’m especially pleased that it includes my proposals to make it easier to vote, require greater transparency from presidential candidates, and limit the influence of corporations over our government.

You can listen to Representative Cicilline’s speech on the House floor here:

As noble as the ideals of this legislation are, they are simply not enough as there will be a continual tension between it and the States attempting to limit access to the ballot box. If this act somehow passes in the Senate (it will not with current filibuster rules and no Republican support), it will most likely face lawsuits that will attempt to overthrow the provisions. The problem comes back to one simple truth:

You do not have a right to vote.

Sure, Amendments to the Constitution say that your right to vote cannot be restricted due to race (15th), sex (19th), failure to pay a poll or any other tax (24th), or being over 18 years old (26th) — the Constitution does not explicitly give the people the right to vote. We will not get into the history of why that is here, but the ability for people to vote pretty much comes from the 10th Amendment that notes that any power the Federal Government does not claim as its own belongs to the States. Over the past couple of centuries and as recently as this past election, the Supreme Court has held up again and again that voting is a power vested in the States in part because it is not a power vested in the Federal Government.

As such, there is no choice of the matter. In order to avoid someone taking away our access to voting, we first need to have a right to vote! And the only way we can have a right to vote is if we have a Constitutional Amendment so that it becomes a directive of the Federal Government.

Below is an excerpted and modified version of the articles Electoral College Graduation and Vote Early, Vote Often… Or Pay the Fine, which in turn are derived from the book NEW & IMPROVED: THE UNITED STATES OF AMERICA. Learn more at https://www.jpprag.com

Gaining the Right to Vote

There are several places in the Constitution that will actually need to be modified in order for people to gain the right to vote. For simplicity’s sake, let us look at how we elect the President and Vice President. As it is well known, the Electoral College actually selects the President and Vice President and there is very little standing in the way of Electors doing anything they want despite whatever the vote results in a State may be. In order to alleviate this, we should eliminate Article 2, Section 1, Clause 2 and Amendment 23, Clauses 1 and 2 and replace them with:

The President and Vice President of the United States shall be directly elected by the people of all States and Territories here within.

There it is! That is it! The Constitution does not have to be complicated, but a single sentence saying all people have a say in selecting the President and Vice President is enough. Something similar will have be done with the House of Representatives. The Senate is a slightly different story since it is supposed to controlled by the States, but the idea would be same.

Yet, this is still not enough because just saying you can vote does not guarantee access to voting. Nor does it eliminate reasons you may have that right taken away from you or roadblocks put in your way. In order to do that, we will need an array of new Amendments.

Per the Constitution, Congress controls what day the election falls on and there is no recommendation to change that here. Many people complain that the day — by law “the first Tuesday after the first Monday in November”— is stuck in a 19th century mentality of market days and when agrarians would be available to vote. Others point to the fact that almost all other western representative democracies have their election on a holiday or a weekend. Of course, all these people are right!

So are the people who say that elections that are on a weekend would disproportionately eliminate poorer Americans who work Saturdays, Sundays, and “off hours” at a far higher rate that more well-to-do Americans. One way or another, some group of people is going to be negatively impacted by a single day election. Therefore, the problem is not the day, but the timeframe in which the election happens. We need to build on what is law with an Amendment to get more people involved, and we do that by managing the timeframe of elections:

Elections for Senators, Representatives, and the President and Vice President shall start at least three weeks before the Day chosen by Congress for holding Elections. The Election timeframe may be extended by law but shall not be shortened for any reason. Election polling must be made available as most convenient for the People of the United States and include hours and days in which the majority do not make labor.

Elections being on one day is truly the issue at hand because it limits the options for people voting in person. Instead, elections should happen for at least 3 weeks before whatever day is chosen as the “official” election day. Based on the current system, this would put elections starting in mid-October and would go through several weekends. That is also where the second part of this Amendment comes into play to have polling stations available at a time that is “most convenient” in that it is the time that “the majority do not make labor”, in other words: off-hours.

One of the issues in the past has always been pegging government functions to the behaviors and customs of the time, but those do change over the decades and centuries. The voting laws were set up with an agrarian society in mind and a much more limited voting pool. Our country now is a mostly service economy with a greatly expanded pool of voters (age, gender, race, etcetera), so the current setup does not completely make sense. Flexibility is key, so if Congress sets polling stations to be open between 12pm and 8pm every weekday and 10am and 4pm on the weekend, then it should cover the vast majority of Americans without as much interference in the workday. Potentially, Congress or a local polling authority could also alternate days with different hours to allow more flexibility for different groups of people.

The important thing is the plasticity of having voting available and good timeframes to get as many people involved as conveniently as possible. For those who scoff at the cost of doing this, my question for you then is: what should the government spend money on that is more important than having an active, engaged and represented populace? What is the point of having a government at all if it is not spending its funding on being involved with the people who are the true rulers of this country?

And do note that this Amendment does allow Congress (or any other local municipality) to expand the timeframe even further. Thus, if it makes sense to vote for two months, then that is what will happen; just at a minimum there should be three weeks. During that time, though, there might be a desire to release preliminary results, and this must be stopped at all costs:

The governing body of each election — Federal or otherwise — shall maintain the secrecy of ballot results until at least seven full days have passed from the Day of Election. This timeframe may be extended by law or in order to have the appropriate time to verify the results, but shall not be shortened for any reason. No member of the governing body of each election may share results or estimates of the elections during this timeframe under penalty of treason.

This may seem odd while discussing the right to vote, but voter suppression comes in many forms. The turnout rates in Hawaii are far below the other States and Territories. While one part of this is definitely the “my vote does not matter” impact of having an area solidly with one political party, the other is the time-zone differential of the elections. Hawaii is six hours behind the East Cost of the United States and as the years have gone on news outlets have been declaring winners of elections within seconds or minutes of polls closing. If the President is already decided before you get a chance to go vote after work, why would you even bother to do so?

Photo by Arnaud Jaegers on Unsplash

This plays out all over the country and even within States. Releasing even tentative polling results discourages people from going out and voting because there is a feeling of uselessness. While there is nothing that can be done to stop the press and other pundits from making estimates, taking polls of their own, and making projections, the government does not and should not be part of the process. Additionally, trying to put out election night results puts undo strain on workers that can create mistakes and misunderstandings. The process of counting votes should be slow, deliberate, and careful such that by the time the official results are given they are 100% accurate, or as close to that as humanly possible.

Since the elections are in early November and the government does not take its positions until early January for Congress and late January for the Executive Branch, what is the rush to get the results out the door? The only reason is because we are in a society that demands instantaneous satisfaction and information. Patience is a lost concept in a world where every bit of media is available by saying a few words to an Artificial Intelligence living inside of a hockey puck. To be fair and safe, ballots should be protected for a detailed count, re-count, and verification process. And there may be times to extend this process in incredibly close races or if absentee ballots have been delayed (such as when troops are deployed in a war zone or the Post Office is overwhelmed). Every vote should have a fair chance, and every voter should have the feeling that their vote matters.

You will notice here that we have added the penalty of treason for violating this Amendment — treason being the only crime defined within the Constitution. Doing anything to undermine the election, even the simple act of releasing polling information early, is an attack upon America. This release causes (at least in part) a suppression of voters and depresses turnout, and that should be discouraged at all cost — including the cost of being accused of treason. This penalty and all the other rules around election results would extend to all levels of government, ensuring that this same level of scrutiny would be applied to the local sheriff race as equally as the President of the United States.

However, there are other key elements that are used to stop people from voting, not the least of which is getting and staying registered:

All eligible voters of the United States shall be automatically registered to Vote and be provided all necessary materials and information in order to give their vote.

Why does anyone need to register to vote at all? There is nothing in the Constitution that says voter access should be restricted; quite the contrary, as previously noted the 15th, 19th, 24th, and 26th Amendments all deal with removing restrictions on voting in one form or another. The 24th Amendment, Clause 1 in particular states:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

It could be (and has been) argued that registering to vote is yet another type of tax. Tax does not have to be money, but it can be time or meeting criteria that States set up. There are active lawsuits that deal with States setting up restrictions for voter registration, for purging voter rolls, and other forms of refusing people to vote due to so-called discrepancies. Voting should not be abridged in any way and the Constitution already does not give any leeway in this. Now, this Amendment would codify that certainty and not just sustain it implicitly.

Photo by Obi Onyeador on Unsplash

The easier it is to register, the higher the turnout. Looking at the Voting Age Population (VAP) turnout percentages for 2016, the eight States with the highest values all had same day voter registration (Maine, Minnesota, New Hampshire, Wisconsin, Iowa, Colorado, Vermont, and Michigan). Among all the States with same day voter registration, the VAP was 56.1% compared to 54% of those States without. If we exclude California and Hawaii — two of the three lowest VAP (Texas being the other) because of reasons of their geography and lack of competition — that value jumps to 61.7%. Those numbers are clear: the easier it is to register and vote without restriction, the higher turnout is. It is so clear that since the 2016 election, four more States had added the same option in time for the 2020 election.

In order to be an informed voter, the government often prints out materials to explain particular items or what is being voted on — in other words, a voter’s handbook. All of this should be readily available to the people. That is not the only material that should be provided, though. One of the best ways to understand what is going to be on the ballot is to have the ballot, and as such the following Amendment should be added:

All eligible voters of the United States shall be provided a ballot at the commencement of the Election timeframe. This ballot shall be able to be submitted by all methods as have been made available by law during the Election timeframe.

There are not a lot of examples in the United States, but the three States that do have automatic mail ballot voting (Colorado, Oregon, and Washington) have a combined VAP of 61.2% compared to the rest of the States with 54.3%. It should be noted that Colorado also has same day registration and is a “battleground” State, so it is hitting all the right checkboxes. Additionally, another 19 States have laws that allow counties or other municipalities to have entirely vote-by-mail elections if they so choose, but it is up to each area. Altogether, the data is probably not enough to base a statistical analysis on, especially since that is not the complete point of this Amendment.

States like Colorado do not just force everyone to vote by mail. While the ballots are sent out to all eligible voters, the voters can then mail it back, drop it off at a designated polling box, or vote in person at a polling station. And that is what the second part of this Amendment is taking about. Today, the ways to vote might consist of by mail, by a drop-box, early in person at designated location, or directly at the polling stations. In the future, though, maybe elections via the Internet will be safe and secure. Perhaps there is another method we have not quite figured out how to implement yet that would be easier and more accurate. In any case, all methods should be made available for the people to vote.

Therefore, sending out the mail ballot ahead of time could be considered just another piece of election material. In the (at least) 3-week timeframe that voting would happen, voters could use any of the methods available to them, not just the mail ballot itself — which then could just be informational in that case. It will give voters the opportunity to be informed and no excuse that every opportunity was not granted to get their vote in.

That said, there is one last measure that can be used to increase turnout and participation.

All eligible voters within the United States are required to vote in Federal elections unless unable to physically or mentally do so or have been granted an exception by law. Congress shall lay a levy on those who fail to submit ballots without meeting an exception.

You did not think you were going to get away without having a responsibility in all of this, did you? Yes, for all of this article the onus has fallen on the government to change, but that does not mean there are not civic duties for the people.

Compulsory voting would be impossible in the United States right now because it would violate the 1st Amendment. One could easily argue that forcing someone to vote is a type of speech that someone may not want to give. Because of that, an Amendment would be needed to make it part of the Constitution in order to have equal weight.

Others think of compulsory elections like those used in North Korea. Yes, everyone must “vote”, but there is only one item to vote on and the answer is “Yes” no matter what, so it is not a real democracy. However, countries closer to our own like Australia, Belgium, Brazil, and others do have a compulsory system and see voter turnout rates in the 90% or above range. One of the key difference makers is the fine for those who fail to vote. Many countries that have compulsory voting do not have a fine or do not enforce it, and the rates of participation are noticeably lower.

Photo by Janine Robinson on Unsplash

Some may fear the idea of an uneducated or uninterested class of people being involved in the voting process who would not otherwise do so. Studies show, however, that because of the compulsion, interest in the political process and desire to have one’s views be heard increases. And yes, the correlation is there that those who are more disadvantaged are less likely to vote and thus perpetuate the cycle. Just giving people the ability to have their voice be heard is one step, but it is another entirely to fuse their voice to the chorus.

There are exceptions, of course, that must be accounted for. Being in a physical state where voting is impossible or having a mental debilitation could be reasons for exclusion. Others may have religious reasons for not voting, or there are laws that restrict certain classes of people (think people in prison). As such, Congress would be allowed to create and maintain that list of exceptions.

Plus, nothing is stopping someone from returning their ballot blank or filling it in with nonsense. Nothing is stopping people from doing that now! There were over 763,000 write-in votes for President in 2016, and a large number of votes were for fictional characters like Mickey Mouse and Elmer Fudd, or non-humans like the deceased gorilla Harambe. At the time of this writing, details have not been released for the 2020 election, but you can expect more of the same. Again, though, studies have shown that while disengaged people may start off this way, over time they tend to vote for real candidates. Consider the reason for many of these joke votes — even among the limited constituents — as a response to living in an area where their vote makes no impact on the outcome.

Of course, there will always be jokers, anti-establishment types, and general protesters, but that is their right. Should we find that compulsory voting in actuality is not effective, Congress could always lower the fine to $0 and therefore there would be no compulsion mechanism. That is one of the reasons for allowing Congress to control the rate as opposed to building it into the Constitution.

The government has a responsibility to the people of the United States; but how can the government be responsible if the people do not fulfill their duty to it? And the duty of the people is to vote.

J.P. Prag is the author of NEW & IMPROVED: THE UNITED STATES OF AMERICA. Is there a way to save America and ensure justice and freedom for all? There is… if you are willing to rethink and rebuild the entire Constitution! You can read an excerpted version here on Medium:

NEW & IMPROVED: THE UNITED STATES OF AMERICA
NEW & IMPROVED: THE UNITED STATES OF AMERICA

Over 15 years as a consultant, solutions architect, and trusted partner for some of the largest organizations in the world. Learn more at https://www.jpprag.com

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