The Section of Civil Rights and Social Justice began work on its Fair Elections and Voting Rights Initiative with a Workshop at its Fall Council Meeting in Atlanta on October 25, 2019. To assist Council members and Committee leaders, Section Director Paula Shapiro and Program Associate Ruchika Sharma prepared and distributed a list of ABA resolutions related to voting or elections (see Appendix), together with a preliminary classification of legal issues pertaining to voting and elections. At the Workshop, a group of experts with on-the-ground experience in election law practice presented examples of challenges to voting and fair elections in Georgia and suggested potential methods for improvement. Council members and Committee leaders engaged the speakers in small group discussions to identify a range of activities that CRSJ might pursue to fill gaps in law and practice governing voting and election procedures. Each small group presented its ideas and recommendations for general discussion.
The Council continued the discussion at its meeting the next day to prioritize recommendations for action. The Council concluded that some recommendations can be undertaken during this bar year, while others will require a more sustained effort over a much longer period of time.
Criteria for prioritizing specific activities are:
- All Section activities should advance the mission of CRSJ and the ABA
- CRSJ should engage in activities that are within its areas of expertise and where it has a comparative advantage over other entities and organizations to undertake those activities
- CRSJ should collaborate with other organizations or ABA entities on relevant activities
- Resolutions for submission to the ABA House of Delegates should focus on important gaps in the law
- Where the ABA lacks policy on an important issue, CRSJ should develop programs to study those issues and programs to educate the legal profession and the public
- Practice standards and guidelines should be developed to improve and standardize voting and election processes and procedures that currently are highly variable in ways that discourage voting or undermine fair elections
- CRSJ should prioritize activities that are likely to have the largest impact
- CRSJ activities do not preclude members from engaging in activities in their individual capacity independent of the ABA
This report summarizes highlights of the presentations, small group discussions, challenges to voting and fair elections and options to improve both.
Estelle Rogers, CRSJ Delegate and Chair of the ABA Standing Committee on Election Law, opened the Workshop and served as Moderator.:
- Andrea Young, Executive Director, ACLU of Georgia
- Helen Butler, Executive Director, Georgia Coalition for the People's Agenda
- Harvey Soto, Policy Analyst & Program Coordinator for Civic Engagement, Georgia Association of Latino Elected Officials (GALEO)
- Marcus Ferrell, Chief of Staff, New Georgia Project
- Sara Totonchi, Executive Director, Southern Center for Human Rights
Challenges to Voting
The Workshop was held in Atlanta, Georgia, because Georgians have experienced a wide range of obstacles to voting and difficulties in organizing fair elections. Our speakers and their organizations confront these challenges in a professional capacity. They offered first-hand accounts of their experiences.
The speakers described many ways that Georgia officials place the burden of proof on voters to demonstrate that they are citizens entitled to vote. Those whose right to vote is questioned or denied are most likely to be people of color, Spanish speaking, and/or low-income, and least likely to be white males.
Three days after the Workshop, Georgia's Secretary of State Brad Raffensperger announced that he would purge 330,000 voters from the registered voter list. This represents 4% of Georgia's 7.4 million registered voters. Like Georgia, other states have removed those who have not voted in recent years, arguing that they may have moved or died. This raises the substantive question of whether voters should be delisted solely because they have not voted in the past. (The issue was complicated further by the Supreme Court's 2018 decision in Husted v. A Philip Randolph Institute.) Procedural issues include how to confirm that a voter is no longer at a specific address or in the state. Where the state presumes that a voter should be removed from the rolls unless the voter affirmatively confirms his present status, problems arise with the adequacy of notice to the voter and of the opportunity to confirm one's address. It invites error. (And people of color and low-income people are most likely to move frequently.) Alternatively, the state could presume that everyone who is registered is entitled to vote and only remove a voter if and when that person notifies the state of any change in address.
The United States has an unacceptably low percentage of its citizens who are registered to vote. Registration requirements are often a barrier to registration. Limitations on the days and times a person can register to vote makes it difficult, if not impossible, for many people to register at all. Online registration and registration concurrent with registering a vehicle or obtaining a driver's license have positively affected voter registration. A prime example of a barrier to voter registration is the requirement for a permanent residence address. The homes of many Native Americans and rural citizens have not been assigned a street address. Homeless persons also have no traditional address. Some states have allowed those without a street address to designate a nearby central site, such as a tribal or community center, as their address for purposes of registration.
Incarcerated pre-trial detainees and prisoners in correctional institutions who are eligible to vote are sometimes unable to register or to vote even if registered because the institution fails to provide registration or voting materials in a timely fashion, if at all. Even in states that permit voting by persons who have served their sentence, disputes have arisen over when they have completed their penalty. For example, if a person has served the time imposed for incarceration but has not paid a fine and cannot afford to do so after release, he may be denied the right to vote; many cannot afford to do so, leaving them without a vote. More clarity is needed on what should count as completion of a sentence.
Efforts to encourage registration have been successful when conducted in locations where unregistered citizens are most likely to congregate. Individuals and organizations that try to assist citizens in registering to vote in Georgia have been criminally charged for mistakenly listing someone who was not eligible to vote as an eligible voter. Examples of such an error are offenders who have served their sentences and Green Card holders who mistakenly believe that they are entitled to vote. Most of these mistakes are innocent and unavoidable, resulting from lack of information about voter eligibility, so that criminal punishment serves no purpose, either punitive or deterrent.
Limits on the number, location, and hours of polling places can create obstacles to voting, especially when the limits oblige people to travel long distances to vote. In recent years, polling places have been removed in neighborhoods where the majority of the population is predominantly of color and/or low-income. Low-income voters are particularly disadvantaged. Some must take public transportation (often several links) to the polls and not all polling places are accessible by public transportation. Others are unable to leave work to vote or cannot arrive at the polls before they close. Consider single mothers who must take several buses or trains to arrive at work by 7:00 am and pick up her children by 5:00 or 6:00 pm; they cannot get to a distant polling place, often one that is many miles from home and work. In Georgia, people often wait 2 to 3 hours to vote. Locating polling sites in places, such as police stations, which appear threatening to some citizens, deters people from participation in elections.
Many of those who get to a polling location find that they are refused the right to vote for a variety of reasons. These include not being listed as a registered voter on the voter roll, the fact that the spelling of their name differs slightly from the registered name, or not having specific, required documents to confirm their identity. People with Spanish names are particularly vulnerable to transcription errors; they may use either or both paternal and maternal surnames in different documents, resulting in slightly different versions appearing in different records. Misspellings of names can easily occur when a person other than the voter writes a name. These mistakes can make it impossible for voters to exercise their right to vote. However, the presence of trained lawyers at polling locations has diminished the frequency of unfounded challenges to the right to vote.
Some of these obstacles have been challenged successfully in court. Such challenges, however, can neither change the results of an election in which not all eligible voters could vote, nor necessarily prevent future unlawful practices. Measures to prevent voter suppression and enable voting are needed.
Opportunities to Increase Voting
The Workshop and Council discussed the following policies to encourage and enable all citizens to vote without encumbrance:
- Encourage individuals and groups to educate the population about their eligibility to vote, the importance of voting, how to register, when and where to vote, and voting procedures.
- Develop and disseminate a standard bipartisan curriculum in basic civics, civic engagement, and voting rights for K-12 schools.
- Develop and disseminate educational materials on voting rights in multiple formats (in-person, online apps, in video games, on Facebook, Instagram, etc.). See, e.g., New Georgia Project app.
- Encourage voter registration among eligible people by in-person educational sessions in locations where they are most likely to congregate (e.g., high schools, community colleges, parks, malls, barber shops, naturalization ceremonies)
- Develop evaluation methods and collect data on which methods of encouraging registration and voting result in increased numbers
- Simplify requirements for voter registration (or eliminate registration requirements altogether, as is the case in North Dakota)
- Require corrections departments to provide voter registration materials and online access to voter registration to all incarcerated detainees and prisoners eligible to vote
- Prohibit imposing civil or criminal liability on community organizers who assist persons to register to vote for mistakes in listing a non-citizen as eligible to vote.
- Authorize Election Day registration
- Authorize online voter registration
- Authorize automatic voter registration or pre-registration with driver's license registration
- Authorize voting at any polling location in the state, regardless of registered residence
- Eliminate specific requirements for identification of eligible voters and accept all forms of evidence of citizenship
- Allow voters without a fixed street address to use a central location or P.O. Box as a residence address
- Standardize the definition of sentence completion to clarify when a person released from incarceration is entitled to vote
- Eliminate non-payment of fines and fees as a condition of sentence completion
- Prohibit removing anyone from the roll of registered voters without authorization from the individual voter or proof of death of the voter
- Publish election information, ballots, and voting instructions in Spanish for Puerto Rican citizens
- Enact federal preclearance requirements for the implementation by states or political subdivisions of changes in prerequisites to voting, or standards, practices, or procedures that have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group
- Declare a state of emergency in voting rights. See ABA Resolution 2008A119A, Election Administration Guidelines, sponsored by the ABA Standing Committee on Election Law
- Disseminate best practices among the states
- Encourage ABA members to present information and recommendations to state and local bar associations and organizations of bar presidents and bar executive directors
- Coordinate relevant activities with other ABA entities, such as the Standing Committee on Election Law, the Standing Committee on Pro Bono and Public Service, the Government and Public Sector Lawyers Division, the Section of State and Local Government Law, the Young Lawyers Division, and the Senior Lawyers Division <\/ol>
- Develop and publish a timeline of the voting process, identifying each place where legal or practical problems can arise
- Make Election Day a paid holiday
- Authorize voting for a reasonable number of days before Election Day
- Authorize several days for voting to allow people to vote when they are able to
- Contact businesses, non-profit organizations, and associations to encourage them to encourage their employees to take Election Day off and vote
- Establish regulations or guidelines to ensure that funds for elections are allocated on the basis of population
- Require boards of election to make their meetings open to the public, hold them at times when members of the public can attend, and provide reasonable notice to the public
- Establish task forces to monitor public meetings of election departments and officials to ensure that they abide by the law and do not abuse their authority
- Allocate and locate polling places in proportion to the population, so that everyone has equitable access
- Ensure that polling places are accessible by public transportation
- Locate polling places in non-threatening places, such as schools and community centers
- Prohibit law enforcement presence at polling locations, unless there is a legitimate law enforcement issue, and then only for as much time as is necessary to resolve it.
- Require that the number of voting machines at each polling location be proportional to the number of voters it serves.
- Keep polling places open from early in the morning until late in the evening
- Require corrections departments to provide ballots to incarcerated detainees and prisoners eligible to vote in a timely manner
- Require corrections departments to submit to boards of election, on a timely basis, voter registration forms and ballots of incarcerated detainees and prisoners eligible to vote
- Develop uniform standards for electronic voting machines
- Require paper audit trails for electronic voting, conducted by independent entities before voting results are finalized
- If a voter is not on the list of registered voters, the poll worker must allow the person to vote by provisional ballot.
- Ensure that a voter whose registration is in question can provide documentation within a specified time after a provisional ballot is cast in order to have that ballot counted.
- Require extensive training of election officials and poll workers, in person and on the Internet, to ensure that they allow all eligible persons to vote, without imposing unauthorized preconditions
- Encourage lawyers to be poll watchers
- Establish a national database of lawyers who are willing and able to either travel to assist with election monitoring or offer expertise by telephone
- Encourage ABA members to offer guidance to legislative sessions on redistricting
- Develop and disseminate model legislation <\/ol>
Challenges to Fair Elections
Voters who manage to register and intend to vote often face additional obstacles when exercising their right to vote. The organization and operation of elections varies greatly, largely because local boards of election typically govern the election process. Many boards of election operate with minimal resources. In the absence of regulations or guidelines for resourcing elections, the funds may be allocated unfairly among a state's districts, precincts, and wards, either deliberately or inadvertently. This can leave some precincts - typically low-income areas - with fewer polling places and staff to accommodate voters than other precincts. Standards for distributing resources on a more equitable basis, such as a fixed dollar amount per voter, would better serve the entire population.
Lack of transparency in election board deliberations and actions can breed public distrust. Some election boards, however, may conduct business in closed meetings. Others may schedule and hold public meetings without adequate notice to the public or at inconvenient times and places, which can hide abuses of power. Election board meetings should be public meetings. When civic organizations and members of the public appear at public meetings, officials are less likely to take actions that would deprive voters of the opportunity to vote.
Problems with voting machines disrupt the voting process. In Georgia, voting machines have been delivered without electric power cords, making the polling site non-functional. Older voters and people with disabilities can find electronic voting machines challenging to use. Assistants should be able to help people who need aid simply in using the machines without being charged with voter fraud. Voting machines themselves can be controversial, in the absence of transparent software and auditing mechanisms. Voting machines should be auditable, with audits conducted before results are finalized. Paper ballots provide a more secure method of voting, in light of concerns about manipulation and hacking from foreign and domestic sources. Paper back-ups should be required even if electronic or touch-screen machines are used.
Redistricting can change the weight of one's vote. As seen in recent court decisions, legislatures have redrawn election districts, distributing ("cracking and packing") voters in order to achieve outcomes favoring a particular political party or racial mix. Georgia has experienced this frequently, since the state legislature redraws election districts every year. Voting districts should be drawn by an independent entity to prevent partisan manipulation of district boundaries.
Opportunities to Improve Elections
The Workshop and Council discussed the following policies to ensure that elections are conducted as fairly as possible, enabling all citizens to vote without encumbrance:
The Council endorses activities to prevent obstacles to voting and encourage fair election processes and will pursue as many of the recommendations as feasible in this and future bar years.
Appendix: ABA Resolutions related to voting rights and fair elections