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    May 06, 2024 ABA Task Force for American Democracy

    Improving Participation in Democratic Processes

    Robert A. Kelly

    Background

    It is axiomatic that voter participation in our democratic processes is one of the keys to the health of such processes. Robust participation by eligible voters imbues election results with greater integrity and creates a self-reinforcing loop encouraging even greater voter participation. While eligible voter participation in the U.S. during the latter half of the 1800’s usually exceeded 80% (albeit at a time when substantial percentages of the population were legally or de facto disenfranchised), eligible voter participation over the last century has been significantly lower and has routinely hovered between 50% and 60%. Voter turnout in the 2018, 2020 and 2022 elections has actually increased from historical trends, driven by the increased polarization of the electorate and hot-button issues such as reproductive health rights. However, notwithstanding these increases, US voter participation still significantly lags behind the rates seen in many other established democracies.

    This Working Paper will, among other things, review historical and current voter participation in the U.S., examine some of the factors influencing and affecting voter participation and discuss steps that are being taken by some states to improve participation (and faith in the democratic processes) and make recommendations for actions to improve eligible voter participation.

    As noted by the University of Florida’s United States Elections Project, eligible voter participation during general elections beginning in the 1840’s was often around 80%. Of course, during this period, African Americans, women and other historically marginalized groups were either legally prohibited from voting or subjected to legal and extralegal measures that made voting difficult if not impossible. Turnout rates steadily declined in the first two decades of the 20th Century and, since then, have consistently been in a range of 50-60%. The most recent general elections in 2018, 2020 and 2022 saw higher-than-normal turnout of eligible voters as a result of, among other things, a closely divided Congress and the Dobbs decision overturning Roe v. Wade. U.S. voter turnout still lags behind a significant number of other developed countries notwithstanding this recent surge. As reported by the Pew Research Center, “in fact, when comparing turnout among the voting-age population in the 2020 presidential election against recent national elections in 49 other countries, the U.S. ranks 31st – between Colombia (62.5%) and Greece (63.5%).”

    Before discussing various actions that could help to boost voter turnout, it is also important to place this issue in the context of the current political and legal climate. The Supreme Court’s 2013 Shelby County decision struck down various provisions of the Voting Rights Act that had previously prevented certain states from implementing laws and regulations that tended to suppress voting among certain groups. Following the decision, a number of states enacted new laws that would previously have been prohibited, most frequently restrictive voter ID requirements. In addition, under the guise of combatting unproven claims of widespread voter fraud, many states have passed new voting restrictions. While it is perhaps too soon to determine what effects these most recent legislative efforts have had on voter participation, it is undeniable that they are counter to the notion of increasing voter turnout.

    Problem Statement

    What can be done to increase voter participation and confidence in our democratic processes?

    Recommendations

    Changes to Election Procedures and Administration

    Although the US’s relatively low voter turnout may be seen as a result of broad societal issues or as a somewhat intractable issue, there are a number of relatively simple election process and administration changes that would all work toward encouraging greater turnout:

    • Automatic Voter Registration: Currently, there are approximately 20 states that have laws providing for automatic registration whenever a state resident interacts with certain state agencies (most frequently, the Department of Motor Vehicles). Many foreign countries automatically register citizens when they reach voting age. Since the US does not have a universal federal identification system, this is probably not feasible at the federal level. However, if the remaining 30 states without a current automatic registration process would adopt such laws, it would tend to increase voter turnout. [In comparison to other developed countries, the US has a very high level of registered voter turnout (i.e., the percentage of registered voters that actually vote in elections). Presumably, this is because a system that requires registration means that the citizens registering are the most motivated voters.]
    • No-Excuse Absentee Voting and Extended Early Voting: Although voting by mail has been the subject of criticism by some as a potential source of fraud (for which there is no credible evidence), approximately 30 states currently allow absentee voting without excuse. Several states actually send absentee ballots to all registered voters. As noted by authors E.J. Dionne, Jr. and Miles Rapoport, in the 2020 general election “the states that had full or close-to-full voting by mail had a 9 percent increase in turnout, compared to a 5 percent increase in states that did not do so.” Clearly, universal voting by mail would thus seem to be a simple way to increase voter turnout. As a corollary matter, a nationwide minimum of 30 days of early voting would, like no-excuse absentee voting, encourage greater turnout. While nearly all states permit early voting, the number of days of early voting varies widely. As mentioned by Dionne and Rapoport, “a 2020 study on the impact of early voting in Ohio by the American Economic Journal found ‘substantial positive impacts of early voting on turnout, equal to 0.22 percentage points of additional turnout per additional early voting day.’”
    • Election Day as a Federal Holiday: The date of federal general elections (the first Tuesday in November not falling on November 1) is prescribed by a statute enacted in 1845. Many countries provide for elections on weekends or make election day a national holiday. Currently a handful of states make election day a state holiday. Making the general federal election day a federal holiday would remove any job-related impediments to voting.
    • Voting Programs on College Campuses: Since the 18- to 35-year-old age group typically has the lowest turnout of any age cohort, more states should implement programs on college campuses to encourage registration and voter turnout. In a 2019 article for CNN, Nicco Mele and Robert Pozen observed that “numerous academic studies and electoral analyses show that voting is habit-forming: once you vote, you are more likely to vote again, and again, and again. The younger you are when you start voting, the more likely you are to continue to vote regularly.”
    • More Polling Locations: Clearly, there is a need for sufficient numbers of polling locations in both urban and rural areas, so that in-person voting is fast and accessible for those who prefer to use it. Since the Shelby County decision, there has been a significant number of polling place closures in jurisdictions that would previously have been limited by provisions of the Voting Rights Act. This has had a disproportionate effect on the ability to vote of people of color in those locations.

    Please note that many of the changes discussed in this Working Paper (as well as other election-related changes) are contained in the proposed federal Freedom to Vote Act. The text of the proposed legislation is contained here.

    Broader Systemic Changes

    In addition to the changes discussed above, there are broader systemic changes that would also encourage greater voter participation and ultimately enhance confidence in the democratic processes (compulsory voting, such as in Australia, is not discussed here because it seems so antithetical to American notions of personal freedom):

    • Independent Redistricting Commissions: Currently, six states have implemented independent redistricting commissions. However, a majority of states still vest the legislature with redistricting authority. In 2019, the Supreme Court ruled that partisan gerrymandering was a political question and not justiciable by federal courts. This has arguably exacerbated the trend of legislatures crafting heavily gerrymandered districts, creating artificial impediments for the then-minority party. Clearly, voter participation is not encouraged if voters correctly perceive that the results will not accurately reflect the overall will of the voters.
    • Nonpartisan Election Administration: States should be encouraged to place election administration in the hands of nonpartisan officials and staff. Although election workers are overwhelmingly committed to making sure that elections are run fairly and that the reported results are accurate, removing any question about partisan preferences of election administrators would encourage greater voter participation and help increase confidence in election results.
    • Ranked Choice Voting: In ranked-choice voting (“RCV,” also known as instant runoff voting), voters are allowed to rank candidates in order of their preference. This generally leads to election outcomes that are more representative of the electorate’s consensus preferences. Although the data is not yet definitive, there are indications that RCV results in greater voter turnout.

    References and Sources for Further Reading:

    • Desilver, D., Per Research Center, “Turnout in U.S. has soared in recent elections but by some measures still trails that of many other countries” (posted on pewresearch.com on Nov. 1, 2022)
    • Dionne, E. and Rapoport, M., Carnegie Corporation of New York, “A Dozen Ways to Increase Voting in the United States” (posted on carnegie.org on Sept. 12, 2022)
    • Frey, E., Ford Foundation, “How to encourage better and more meaningful political participation in the US” (posted on fordfoundation.org on June 24, 2016)
    • Leadership Conference on Civil and Human Rights, “Democracy Diverted: Polling Place Closures and Right to Vote” (posted on civilrights.org)
    • Leaverton, C., Brennan Center for Justice, “Who Controlled Redistricting in Every State” (posted on brennancenter.org on Oct. 5, 2022)
    • Mele, Nicco and Pozen, R., “These simple fixes could boost voter turnout in a major way” (posted on cnn.com on Sept. 23, 2019)
    • Nishizawa, L., Council on Foreign Relations, “How Does U.S. Voter Turnout Compare to the Rest of the World’s?” (posted on cfr.org on Aug. 24, 2022)
    • Riccardi, N and Sanders, L., “Americans are widely pessimistic about democracy in the United States, an AP-NORC poll finds” (posted on apnews.com on July 13, 2023)
    • The websites for FairVote (fairvote.org) and the University of Florida’s US Elections Project (electproject.org) provide additional information and materials regarding potential election reforms and other changes to increase voter participation.

    This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.

      Robert A. Kelly

      Quibi

      Robert A. Kelly served as the General Counsel of Quibi, a start-up online streaming platform from 2018 until 2022. Mr. Kelly joined Quibi as its second employee and, along with its founders, Jeffrey Katzenberg and Meg Whitman, completed two pre-launch capital rounds that raised over $1.75 billion. As General Counsel, he built a team of lawyers that was responsible for all legal matters involving the Company, including intellectual property, privacy, labor and employment, regulatory compliance and litigation. From 2006 until 2016, Mr. Kelly served as the Deputy General Counsel of DreamWorks Animation (now a subsidiary of Comcast NBCUniversal), where he was responsible for securities matters, mergers and acquisitions, corporate governance and general corporate matters. From 1996 until 2005, Mr. Kelly was the Deputy General Counsel of WellPoint Health Networks Inc. (now a subsidiary of Anthem/Elevance Health) and was responsible for, among other things, mergers and acquisitions and securities matters. Previously, from 1990 until 1996, he was a corporate associate with Gibson, Dunn & Crutcher, LLP. He received a B.A. in Economics, with Department Honors and Distinction, from Stanford University and a J.D. from Yale Law School.