Addressing Negative Partisanship with Mobile Voting

Political scientists cite numerous causes for the crisis. The rise of social media and the corresponding loss of local news have left Americans without trusted sources of information. The flood of dark money following the Citizens United decision has eroded our faith in who elected officials really serve. And institutional flaws in the Constitution have created anti-majoritarian effects that further contribute to the loss of trust in our democratic institutions.

But perhaps the biggest cause of our current crisis is the rise of negative partisanship. Americans increasingly view those with different political views as "immoral," "dishonest" enemies who want to hurt the country. These views have contributed to rising political violence, including the attack on January 6th and subsequent examples in the last few years, and pose a dangerous threat to the future of our democracy.

All of the political incentives favor this trend. Most politicians care only about reelection, which is most often decided in a primary election when only the most engaged partisans vote. As a result, they too often feed this negative partisanship through the politics of division and obstruction in order to stave off primary challengers from the respective flanks of their parties.

So how do we emerge from this crisis? Numerous democratic reforms are needed, from redistricting reform to end partisan gerrymandering, to electoral reforms like open or nonpartisan primaries, including top two or final five primaries, and ranked choice voting. Each of these reforms would help, by diluting the power of hyper partisans in primaries to increasing the number of districts that are competitive in general elections.

But we also need to dramatically increase voter participation, especially in primary elections. Turnout currently averages around 20% in congressional primaries, meaning roughly 80% of eligible voters do not vote in the election that often matters most. Such low turnout means that the voters who are participating are more partisan and less representative of the broader electorate. This is hurting U.S. democracy in several critical ways.

Since most members of Congress and state legislatures are effectively elected in primaries, they are more sensitive to the electorate that votes in primaries and are driven by a belief "that they can reduce their vulnerability [to a primary challenge] by focusing on the issues about which their primary constituency cares," according to Elaine Kamarck and James Wallner in a 2018 Brookings Institution study. This impacts leadership in Congress and state legislatures, who focus their legislative agendas in order to amplify the differences between parties and make the opposing party appear more extreme. And the threat of primary challenges discourages compromise because lawmakers fear primary voters will punish them for it.

Higher turnout in primaries should "be a national priority," according to the Bipartisan Policy Center's Commission on Political Reform. If higher turnout in primaries is needed, how can we achieve this?

Some, including the Bipartisan Policy Center, recommend reforms like open and nonpartisan primaries, such as top two or top five primaries, as a way of boosting primary turnout. But studies have shown that primary election reform alone yields only very modest increases in turnout. For example, the Bipartisan Policy Center found that in 2022, turnout in states with open and semi-open primaries saw turnout jump by just two percentage points, and in states with nonpartisan primaries, turnout increased by just three more points.

This evidence suggests that primary election reform alone does not increase primary turnout enough to help us overcome the current crisis. Let's consider another variable impacting voter participation: the availability of convenience voting options.

Convenience voting includes any voting option that permits a voter to vote outside of a polling place on Election Day. This includes early in-person voting, no-excuse absentee voting, permanent vote by mail, and automatic vote by mail. Research into the effects of convenience voting on turnout has yielded mixed results. Most academics have found at least a modest positive impact on turnout in general elections when states have added convenience voting options, particularly vote by mail.

The evidence from the 2020 presidential election, when the majority of Americans had access to convenience voting options, affirms that increasing options and making voting more convenient can positively impact turnout. One study found that turnout was an average 5.6% higher in states that automatically mailed every voter a ballot. Pew similarly found that of the ten states with the highest increase in turnout in 2020 over 2016, seven conducted the November election entirely or mostly by mail. Still other research showed that convenience voting had a particularly positive impact on low-income voters.

Evidence from primary elections shows convenience voting has an even larger impact on turnout. This chart shows congressional primary turnout as a percentage of eligible voters. The data shows turnout in states that have little to no convenience voting options (e.g. polling place-only, excuse required absentee), some convenience voting options (e.g. early voting and no-excuse absentee), and predominantly convenience voting options (e.g. automatic and permanent vote by mail). In states with predominantly convenience voting, turnout was an average eight points higher than in states with no convenience voting options, showing these options have a larger impact on turnout in primaries. And of the five states with the highest average primary turnout between 2014 and 2022, all but one (Oregon) had open primaries, suggesting that convenience voting options combined with open primaries can significantly boost turnout in primary elections.

This data provides promise, but there are millions of voters for whom voting access remains difficult if not impossible under current options, including vote by mail. These voters continue to have wide turnout gaps and the lowest participation rates, particularly in primary elections.

For example, military and overseas voters face tremendous obstacles getting and returning a ballot by mail and consequently vote at some of the lowest rates. Just 47% of eligible active duty military voters and a mere 8% of eligible overseas voters cast a ballot in the 2020 presidential election. Participation in primaries and local elections is far worse. The Federal Voting Assistance Program found that in 2020, 21% of military voters and nearly 40% of eligible overseas citizens wanted to vote but were unable to do so due to the obstacles they faced.

Similarly, voters with disabilities continue to face barriers to voting and are too often unable to exercise their right to vote. In the 2020 general election, for example, voters with disabilities voted at a 7% lower rate than voters without disabilities of the same age, a gap representing over two million fewer voters. Voters with disabilities were also twice as likely to report difficulties voting as voters without disabilities, and 17% were unable to vote independently without difficulty, including voters casting a ballot in person and by mail. Current Census data estimates that there are 38.3 million eligible voters with a disability, representing a nearly 20% increase since 2008, and meaning voters with disabilities now make up a larger share of the electorate than voters who are black (29.9 million) and Hispanic (31.3 million). Accessible voting options are increasingly needed to ensure all voters can access and cast a ballot successfully.

Other voters are also disproportionately impacted by barriers that impede access to in person and by mail options. Tribal voters, for example, face tremendous barriers to voting. In fact, the Native American Rights Fund noted in a recent report that "every barrier imaginable is deployed against Native American voters," who may live as many as 150 miles from the nearest polling place and lack home postal delivery to access mail voting options. Consequently, Native American voters have the lowest voter turnout rate of any racial or ethnic minority group in the U.S.

Young voters and voters of color face similar barriers, from inflexible schedules to long lines and confusing absentee voting rules that contribute to wider turnout gaps. The Brennan Center for Justice recently reported that the gap in turnout among nonwhite voters has grown in every election cycle since 2013 and reached 18 percent in 2022, meaning 14 million more ballots would have been cast in 2022 if no gap in turnout existed. Among young voters under 25, the gap in turnout in 2020 was 16 percent compared to voters 25 and older, according to Census data. Other research shows that young voters are much less likely to vote in primaries, leading to a much older electorate in the election that matters most.

Addressing barriers to access, particularly for voters who have been historically disenfranchised, must be an important consideration as we look to increase primary election turnout and solve our current crisis.

Mobile Voting as the Solution

To dramatically increase voter turnout in primaries and thereby change the incentive structure that is fueling our broken politics, we must remove barriers and make voting easier and more convenient by adding mobile voting options. Mobile voting solves a range of access issues by enabling voters to cast a ballot on the device they use for nearly every other daily activity. Military and overseas voters would no longer be forced to use unreliable postal mail or unsecure electronic return methods like email or fax. Voters with disabilities would be able to use their own assistive technology to cast a ballot independently and privately. And voters in tribal communities would no longer be forced to travel hundreds of miles to cast a ballot. Voting would be as easy and convenient as we've now made shopping, paying bills, or accessing health care. All voters would benefit from the increased convenience.

Mobile voting is already an option available to some voters in advanced democracies around the world, including in Australia, Canada, Estonia, France, New Zealand, and the United Kingdom, among others. In the United States, mobile voting has been piloted in over 330 jurisdictions across ten states since 2018, primarily for a mix of military and overseas voters and voters with disabilities. In King County, Washington, a special district has offered mobile voting options to all 1.2 million eligible voters in annual elections since 2020, over which time turnout has tripled.

Imagine if we were able to triple the number of voters who participate in primary elections? Turnout would rival general elections with potentially more than half of eligible voters participating. This would completely transform the current incentive structure by diluting the influence of hyper partisan voters.

These benefits would be felt even in a closed primary, which is arguably the worst culprit fueling the crisis since it limits primary participation to just voters affiliated with the respective parties. In the last three congressional primaries, closed primary turnout averaged about 18%. That means roughly 9% of eligible Democrats and 9% of eligible Republicans voted in their primary election. Since politicians only care about reelection, and reelection is effectively decided in those primaries when just 9% of party members are voting, those politicians only need to avoid upsetting that tiny fraction of the electorate to hold onto their seat. Meanwhile, they can completely ignore the other 90% of voters who don't vote or don't vote in their party's primary.

Now imagine voter turnout in that primary was over 50%, or roughly a quarter of Democrats and a quarter of Republicans voted. Even if only affiliated voters are able to vote in that primary, politicians now must be accountable to a much wider base of voters in their party in order to secure their reelection. The increased turnout would help to dilute the power of the hyper partisans who oppose all compromise, ensuring politicians are incentivized to actually work well with others and solve real problems.

Now consider the impact in an open or nonpartisan primary in which all eligible voters can participate. For example, California has used a top two nonpartisan primary since 2012. Under this model, all candidates run on a single primary ballot, and the top two vote-getters move on to the general election. All eligible voters in California are able to vote in the primary, and the state has used automatic vote by mail since 2020. In the most recent congressional primary in 2022, voter turnout in California was nearly 29%, well above the national average and nearly five points higher than primary turnout in 2010, which was the last primary before California implemented the top two model. But it still means over 70% of voters did not participate in the primary.

If mobile voting had been an option and turnout had doubled, turnout in the primary would have jumped to nearly 60%, rivaling even presidential level turnout. There is little question that such a large jump in participation would force politicians to be responsive to all voters, and not just the minority of hyper partisan voters who currently vote in primaries.

Mobile voting as an added option, even if only in primary and local elections, has been proven to dramatically increase voter participation by making voting much easier and more convenient and removing barriers that leave far too many voters out. This increased turnout has the potential to dramatically change the incentive structure that currently rewards politicians for negative partisanship and dysfunction and return power to all voters.

Next Steps

Before mobile voting is more widely adopted here in the U.S., it is critical that systems used for mobile voting meet strict security requirements to protect the integrity of the election. Those requirements must ensure that only eligible voters can vote, that ballots are cast and counted as the voter intended, that voter privacy is protected, and that any threat is detectable.

Mobile voting as implemented works as a form of absentee voting and therefore carries some of the same risks as traditional paper mail voting, including the risk that someone may impersonate a voter and attempt to vote in their place. Like absentee voting, mobile voting mitigates the risk of voter impersonation or fraud through the use of signed absentee affidavits, which are then verified by election officials to ensure the eligible voter cast the vote. But mobile voting can also enhance voter verification with digital tools, such as the use of multi factor authentication, biometrics, and digital identity verification, to provide even greater protection against the risk of voter impersonation or fraud.

Mobile voting also helps mitigate other risks inherent to traditional absentee voting, such as the risk that a voter mismarks or under-votes their hand-marked paper ballot. Voters routinely make errors when marking a paper ballot by hand, sometimes due to human error and other times due to poorly designed ballots. For example, a poorly designed paper ballot in Broward County, Florida in 2018 resulted in tens of thousands of voters failing to vote in the Senate race, an effect that may have cost one candidate the election. Errors and undervotes often result in votes being tossed or even incorrectly counted in ways that do not reflect the voter's intent. These errors can be prevented with digital marking tools like mobile voting, which prevent overvotes and provide voters with warnings when they miss or undervote a contest.

Despite these improvements, mobile voting introduces other risks not present in other voting options. Any data transmission over the internet carries risk, but those risks can be mitigated with the proper security controls. Standards for mobile voting should require that any system used to transmit ballots over the internet be end-to-end verifiable. This means that voters must be able to independently verify their ballot is cast and counted correctly, replicating and even exceeding the evidence available to voters casting a ballot in person. End-to-end verification helps to mitigate the risk that a voter's ballot can be compromised without detection, protecting the integrity of each voter's ballot and giving voters independent evidence that their ballot is secure.

End-to-end verifiability also offers the public a tool to verify that the election system is working correctly and all valid ballots are included in the tally, increasing the transparency and verifiability of our elections. This verifiability is unavailable in current voting options, and consequently, we have seen how easily faith in our democracy can be challenged with false or misleading claims. With end-to-end verifiable mobile voting, all activity in the mobile voting system is publicly viewable and auditable, in real time, giving the public a direct view into the election system and enabling them to independently verify everything is correct.

The latest Voluntary Voting System Guidelines adopted by the Election Assistance Commission include standards for end-to-end verifiability, and end-to-end verifiable voting systems have been piloted for in-person voting as recently as November 2022. End-to-end verifiable mobile voting systems are currently used in other countries, and developers are at work on similar systems for U.S. elections. These systems address many of the security challenges with mobile voting and mitigate the risk that an election can be compromised without detection.

As these systems become available, they should be piloted for smaller groups of voters, such as military and overseas voters and voters with disabilities who need those options in order to vote successfully. As the technology and security is proven in those trials, mobile voting options can be expanded to wider groups of voters, particularly in primary elections where the addition of mobile voting can dramatically shift political power and disincentivize negative partisanship and political dysfunction.

This document has been submitted to the ABA 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.