Justin Levitt is an Associate Counsel in the Democracy Program of the Brennan Center for Justice. Levitt staffed an election protection hotline on Election Day responding to voter problems.
With the national direction, control of the Congress and thousands of state races and ballot questions on the line, America voted on Tuesday.
Sort of.
It will take time to know exactly how many Americans cast a ballot. Initial estimates weigh in at about 40 percent. This is consistent with turnout in past recent midterm elections. That is: In every midterm in my lifetime, more than half of the eligible Americans have not voted.
Why so little participation in our most fundamental collective act?
I spent Tuesday with a nonpartisan election protection hotline, helping voters of every conceivable stripe cast a vote. That experience only confirms my hypothesis: Exercising one of our most treasured constitutional rights has become a tutorial in frustration.
Consider Mary Williams—a composite of hundreds of calls received this year and thousands of voters in a variety of states. Mary’s path may seem absurdly difficult. But each individual problem is not unknown—or even atypical. As Mary struggles, so struggles the country.
• Mary moved this year, and has to register to vote anew. In the past, Mary had registered through the venerable League of Women Voters. But new laws, with criminal penalties and crippling fines for the innocent mistakes of volunteers, have shut down the League’s registration drives in Mary’s state for the first time since 1920.
• Mary can try to find a registration form at her local Medicaid office. But because her state still hasn’t complied with federal law more than a decade old, the forms aren’t there.
• Eventually, Mary makes time to visit her county board of elections. Where Mary lives, however, she has to show proof of citizenship. Mary hasn’t needed her birth certificate in ages, and though she thinks that it’s around the house somewhere, she does not have it with her. Or maybe she wasn’t born in a hospital, and never received a birth certificate. Or maybe she’s a naturalized citizen who got married and changed her name, and she’s waiting the year for a replacement certificate. Without the paper, Mary is out of luck.
• So Mary brings the registration form home, unearths her birth certificate, makes a copy and mails in the forms. Let’s make Mary one of the lucky ones: she doesn’t miss a redundant checkbox, her form is on the right kind of paper, her form is entered without a typo, her name and date of birth match Social Security records, the confirmation notice is sent to the right address and all of this is finished before the registration deadline.
• Lucky though she may be, Mary expects trouble at the polls. So she applies for an absentee ballot; fortunately, she lives in one of the states that doesn’t require a particular excuse to vote absentee. The ballots, however, are mailed out late, and do not arrive before Election Day.
• For all of Mary’s travails, she is still relatively fortunate: Her state allows her to vote in person if the absentee ballot does not arrive in time. So on Election Day, she heads to the polls—but aims for the fictional poll site address in the fraudulent message left on her answering machine.
• When she realizes the address is wrong, Mary calls her county board of elections, and eventually finds the correct location. But when she arrives, she discovers that the poll site has only three machines. One seems to be broken. The line to vote is around the block, and growing. No emergency paper ballots are available. Mary has to leave to get to work.
• At lunch, Mary tries again. This time, she’s stymied by a new identification law. Mary hasn’t driven a car for years now, and has been using her expired driver’s license as ID. Although there is no doubt that she is who she says she is, Mary does not have the right form of ID to vote, and is turned away. It is no consolation that even a passport would not have sufficed.
• After work, Mary hurries back to the poll site—now with the right kind of ID—and barely makes it into line by the 7 p.m. cutoff. The line moves—slowly. Pollworkers try speeding the process by strictly enforcing a law allowing voters only three minutes to complete their votes. But with several complicated initiatives and referenda on the ballot, Mary notices that several voters being hurried out the door seem quite frustrated. Still the line drags on.
• Two hours later, Mary is finally near the front of the line. The partisan challenger who is waiting looks down at a list on a clipboard, and challenges the eligibility of the gentleman in front of Mary. The gentleman votes a provisional ballot. There’s a 65 percent chance it will count—which seems fair enough. When we deposit a paycheck, we’ll take 65 percent odds that it goes into our account, right?
• Mary’s up next. The pollworker looks for her name in the register, but it is not there, and Mary has to vote a provisional ballot as well. She later discovers that the state had compared the voter rolls to the Social Security’s “Death Master List,” and found another Mary Williams with the same birthdate. Mary—who is very much alive—has been purged.
Whew. And that, of course, is just a sample: On Tuesday, election protection hotlines received a flood of calls began at 5:30 a.m., and did not let up until well past 9:30 p.m. We don’t yet know the total number of calls. Our hotline used three shifts of 24 volunteers, all running without a break for 16 hours, and we were covering only a fifth of the country.
Maybe a particular Mary makes it all the way through the obstacle course; maybe not. If history is any guide, Mary may merit a brief personal interest segment on the day’s evening news. But the difficulties she has faced will be forgotten until Election Day two years hence. And then they will be repeated.
The number of steps—and the number of potential barriers—between a citizen and her vote has become truly staggering. There is no reason to tolerate this state of affairs. We can—and must—place voting at the center of our democracy. We make it start with a shift in worldview: By treating voting as a treasured right rather than a dispensed reward, a ritual chore or a partisan tactic. We make it meaningful by deploying systems and tools to facilitate and protect the franchise, with adequate funding and ample transparency. And we make it last by remembering that the election apparatus exists to serve us, rather than the other way around.
Tuesday’s voters spoke out for change. But I heard the biggest call for change from the voters who were not able to speak at all.
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