Given the ongoing standoff between Congress and the White House, it’s becoming clearer each day that the “tiebreaker” will be the 2020 election.
So it’s encouraging to learn that the prospects for voting reform are not as bleak as some stories might lead us to believe. Amid voter apathy and voter suppression efforts, there are leaders and activists in some states and local communities across the country who are successfully working to bring more people to the polls.
In this week’s WhoWhatWhy podcast we talk with Joshua Douglas, a professor at the University of Kentucky College of Law and an expert on state constitutions and election law procedure. He is also the co-author of an election-law case book and co-editor of Election Law Stories.
Douglas argues that change best happens locality by locality and that, in spite of all the bad news, he is seeing many new efforts at voter expansion. Promising local experiments, mostly in blue states but some bipartisan efforts as well, include felon re-enfranchisement and lowering the voting age.
Douglas views voting reform as a two-pronged approach. Herculean efforts are necessary to fight back against the harsh tactics of voter suppression. At the same time, uncompromising resistance has to go hand-in-hand with proactive efforts to extend the franchise. If we are only engaged in the fight against suppression, he says “we are only doing half of what’s possible.”
Some examples: lowering the voting age to 16 — coupled with different kinds of civics education —and the availability of modern voting systems that still provide paper back-up. Citing the positive results of automatic and same-day voter registration, he shows why these efforts are increasing turnout.
Douglas points out that even in Kentucky and Iowa, two of the states aggressively engaged in voter suppression, some progress is being made. He details some inspiring stories of voting reforms that give hope for the future of democracy in the US.
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| Jeff Schechtman: | Welcome to Radio WhoWhatWhy. I’m your host, Jeff Schechtman. Right now, a full 19 months away from the 2020 elections, they are front and center. Every day new polls, new candidates, and obsessive media-focus on the horse race seem overwhelming. But with it all, we still have some of the lowest voter turnout among Western democracies. We have voter suppression reaching new levels in states like Georgia and Kansas. We have state officials whose job it is to oversee elections, working hard to keep people from the polls. Add to this the fear of electronic voting, growing distrust in institutions, and more money than ever in politics, it all creates a kind of anti-democratic stew. |
| But my guest, Professor Joshua Douglas, sees light at the end of the ballot. Joshua Douglas is a professor at the University of Kentucky College of Law. His most recent scholarship focuses on the constitutional right to vote with an emphasis on state constitutions. He’s written extensively on election law procedure, and he’s the co-author of an election law case book, and co-editor of Election Law Stories, also the author of the recent book, Vote For US. It is my pleasure to welcome Joshua Douglas to the program. Joshua, thanks so much for joining us. | |
| Joshua Douglas: | Thanks, Jeff. It’s great to be on. |
| Jeff Schechtman: | We do seem to be in a time where there are story, after story, after story that really don’t paint a positive light of what’s happening, but really look at some of the problems that we’re facing today in terms of voting rights. Talk a little bit about that first. |
| Joshua Douglas: | Yeah, that’s right. There is a lot of doom and gloom out there when people talk about the right to vote. I think that’s rightfully so because we have elected officials, in particular those who run our elections in some places, that are making it harder for people to vote, whether it’s through passing strict photo identification laws that studies show are going to cut out a certain segment of the election with no raw producing benefit to the laws, whether it’s cutbacks to early voting, whether it’s with respect to drawing electoral districts, the practice of gerrymandering, which both sides engage in when they are in power. It’s hard not to feel a lot of doom and gloom about our system right now. |
| Jeff Schechtman: | Is part of the overlay to this that voting, itself, the process of voting, like everything else today in our politics, has become so extremely partisan and that the right to vote, itself, has become a partisan political issue? |
| Joshua Douglas: | It is, and that’s really unfortunate. It’s likely an outgrowth of the 2000 presidential election and the Supreme Court’s Bush v. Gore decision, which really showed political operatives how election rules could dictate election outcomes. But I think there’s this universal feeling in our society, or at least there should be, that the right to vote is such a precious, important part of democracy that everyone should participate. A lot of these solutions actually do have bipartisan support so while the voting wars, as one scholar has called it, is really become a partisan issue in so many areas, it shouldn’t be or, at least, doesn’t have to be, when we think about what the ideals are with respect to our democracy and the fundamental right to vote. |
| Jeff Schechtman: | Of course, beyond partisanship, the other thing that enters the equations is a kind of cynicism about the electoral process and about politics today that keeps people away from voting. |
| Joshua Douglas: | Yeah, there’s a lot of voter apathy. There’s a lot of to his sentiment that my vote doesn’t matter, or won’t count, or the system, for lack of a better word, is rigged on either side. There is a lot of reasons why people want to throw up their hands and say, “The heck with it.” But I don’t think that’s the right answer, and that’s certainly not the right way to fix our democracy. |
| Jeff Schechtman: | Staying on that cynicism for the moment, there’s a kind of distrust in institutions that seems to be filtering down into the voting process today. |
| Joshua Douglas: | Yeah. I think that’s right as well, but again, that’s a product of structural barriers to the ballot box. It’s a product of the way we vote and the way we select candidates. It’s a product of the extreme polarization that has entered the national debate on every issue. It’s a product of this voter apathy that we just talked about. But again, it doesn’t have to be that way. There is so much doom and gloom, and doom and gloom is what drives media stories and whatnot, but we don’t have to settle for that being the storyline of our democracy. That, to me, is really the key to how to move forward is to reverse this notion of negativity and look for actual solutions that are happening on the ground in various places all around the country. |
| Jeff Schechtman: | What is the common thread, and you talk about many of these positive developments and many of these positive things that are happening in communities all across the country? We’ll talk about some of those, but is there a common thread to these positive efforts that you see? |
| Joshua Douglas: | I think the common thread is that it’s being driven by everyday Americans. Our elections are being improved not from top-down solutions, not from the elected officials themselves or the political elite, but it’s really everyday Americans that most people have never heard of that are working in their local communities. That’s, I guess, the second key takeaway is that change happens locality by locality. If we look, historically, at different voter expansions, whether it’s women’s suffrage or the fight for civil rights and African American expanded access to the ballot. Although there were top-down solutions eventually with a constitutional amendment or the Federal Voting Rights Act, the groundwork for that was all laid by everyday Americans in localities, in their own communities, through a grassroots effort. I think that is a common theme that we see, even today, with the new voter expansions that we’re experiencing. |
| Jeff Schechtman: | Is it positive or negative, in your view, that we have a voting system that is so decentralized, that is so bifurcated, that it’s not only the states but local communities that control how voting takes place? |
| Joshua Douglas: | Oh, I think it’s a mixed bag, Jeff. I mean, on the one hand, you have the ability to experiment locality by locality, to try something new, see it work, and then allow it to spread to other places. That’s, I think, a virtue of decentralization of election administration. US Supreme Court justice Louis Brandeis once said that states can be laboratories of democracy, that one state can try something innovative and new, and if it works, it’ll spread to other states. I like to say that if states are laboratories of democracy, then cities and localities can be test tubes of democracy that try things out on an even smaller scale. But there are some downsides to the decentralization, which is that sometimes it’s harder to achieve reforms, if we know they’re working, and get them to spread to other places, especially when there’s political resistance to it. So I think it’s a mixed bag. It’s the system we have, and so we can find ways to work within it to improve our elections. |
| Jeff Schechtman: | How much of the reform that you’re seeing, and some of these experiments that you’re seeing, are happening in red states or blue states? Is that a factor? |
| Joshua Douglas: | Well, there’s certainly a skew. I guess more of the reforms that I highlight in the book are in so-called blue states or so-called blue cities, but there are a handful of them that are happening on a bipartisan basis. I point to those, and we can talk about some of them, things like felon re-enfranchisement, automatic voter registration, easing convenience on election day, that are happening all over and have bipartisan support. But you’re right that the majority of the reforms are in so-called left-leaning areas, but I think that’s okay. That doesn’t mean it’s a product of partisanship. It’s simply that the politics are ripe in those places, and they can lay the groundwork to have these ideas spread to other places once we prove that they’re working well. |
| Jeff Schechtman: | Yet you look at a situation like Florida, where the electorate voted overwhelmingly for felon re-enfranchisement, and there’s an effort going on right now to try and overturn the will of the voters on this issue in Florida. |
| Joshua Douglas: | Yeah, it’s really unfortunate. It’s anti-democratic for the Florida legislature to be trying to pass the law that would essentially undo what the voters enacted in the state constitutional amendment to re-enfranchise about 1.4 million former felons. It’s going to get challenged in court if it does pass. I suspect that it would get struck down as so clearly it’s contrary to the intent of that state constitutional amendment. This is why I think it’s important that there needs to be a two-pronged approach to fixing our elections. We still have to essentially play defense and fight back against voter suppression and the doom and gloom. My book is not suggesting that that work is over, or is done, or needs to stop. I think that this pushback against voter suppression goes hand-in-hand with proactive go-on-the-offense for positive voting rights reforms. I think if we’re only fighting back against the voter suppression, then we’re essentially only doing half of what’s possible with respect to enhancing our election system. |
| Jeff Schechtman: | One of the reforms that you spent a lot of time talking about, of late, is this idea of lowering the voting age to 16. Talk about that. |
| Joshua Douglas: | Yeah, so when I first heard of the idea to lower the voting age to 16 for local elections, I actually thought it was somewhat off the wall. I heard about Takoma Park, Maryland doing it for its local elections. It passed it in 2013. Then I started researching more, and I actually became a very strong proponent of the idea. It makes a lot of sense. It passed in Takoma Park thanks to the advocacy of both a council member named Tim Male and a bunch of local youth advocates. It spread to, then, Hyattsville, Maryland, Greenbelt, Maryland, hopped across the country to Berkeley, California. That lowered the voting age to 16 for school board elections. San Francisco voters narrowly rejected it by about 52/48% in 2016, but that was a big increase in the polling from when they initially started the campaign. I just saw that Los Angeles School Board has authorized a feasibility study to lower the voting age to 16 for its school board elections. |
| There’s a lot of movement on this issue, and we can get into the details if you’d like, but ultimately, the big takeaway, for me, is that doing this practice can create a whole new generation of engaged voters. One of the biggest predictors of whether someone is going to vote is if they voted previously. Voting is habit-forming. If you miss the first election when you’re an eligible voter, you’re less likely to become a habitual voter. Non-voting is habit-forming as well. If we lower the voting age to 16, and the studies show, and the experience shows, that these 16 to 17 year-olds turn out at a much higher rate than 18 to 24 year-olds, then we can create that whole new generation of engaged voters. | |
| Jeff Schechtman: | Do we have to have a system in place in our schools for civics education that goes hand-in-hand with that? Can we do one without the other? Should we try? |
| Joshua Douglas: | Absolutely, we need to also improve civics education. That’s why I spend a whole chapter in the book on ways that schools are already working to improve their civics education; in all of the places that have passed the lower voting age, that has been supported by the school board that has tried to revamp its civics education. What civics education needs to be is not what we traditionally think of, which is memorization of facts, learning about checks and balances. That stuff, quite frankly, is boring to most 16 year-olds. It might interest me as a constitutional law person, but 16 year-olds don’t necessarily want to learn about that, and they’re not going to be convinced to vote. But a lot of social studies teachers, I’ve learned, and I tell these stories, are doing what’s called action civics, where they’re engaging their students in real-world problem-solving about actual issues. They debate issues that are in the public sphere. They take on projects. |
| One school in Washington DC noticed a problem with tardiness among their classmates. They decided to take the issue head on as a magnet school. It drew from all over the city. They studied the issue of why their peers were late quite often to learn that transportation was not really reliable. Then they came up with a plan, and went to the DC government, and convinced them to allow students to have free public transportation during the school year. You can get a Kids Ride Free card now for the DC metro system. I mean I don’t think anyone would think that those students would ever forget the importance and the value of civic engagement. If we embark on these kinds of activities, coupling it with lowering the voting age to 16, we can really revamp our electoral participation in future decades. | |
| Jeff Schechtman: | Having younger people vote and a younger generation vote, how does that square with a kind of antiquated system of voting we have that is, at best, 20th century? |
| Joshua Douglas: | Yeah, we do have an outdated voting system although, somewhat paradoxically, most experts agree that we still need to use a paper ballot system or at least have paper ballot backups. We think about the concerns of Russia or other countries hacking our system, the verifiability and security of voting machines. People say, “Well, I do my banking online,” but we also see stories of banks being hacked. A paper ballot is, I still think, the best way, although we can revamp our voting system to make the use of paper ballots or paper backups on voting machines that would give you a backup much more convenient and inclusive. There are some pilot studies going on to use apps to vote using blockchain technology. Some counties in West Virginia have used that in recent elections for overseas voters, and it seems to have worked okay. Maybe 10, 20 years from now that might be the future of voting, we’ll just have to see, but we can adopt practices that both adhere to those security concerns and make it a whole lot more convenient for 16, 17 year-olds and, actually, the entire electorate to vote. |
| Jeff Schechtman: | I mean, as you know, there were experiments in California after the 2000 election with electronic voting machines, and the pushback was immense. It was millions and millions of dollars that was wasted because nobody had any faith in the machines. |
| Joshua Douglas: | Yeah, that’s absolutely right, but we can change the process by which we vote on election day through things like vote centers. Instead of voting at a home-based precinct, you could vote in any vote center in the county that are electronically linked so once you check into one place, you can’t go vote at a different vote center. Or even universal vote by mail, which California is on its way to adopting statewide, also known as Vote At Home, where every voter is automatically mailed a ballot a couple weeks before election day. You don’t have to request it at all. You can take the time, from your home, to research the issues, research the candidates, and this actually would produce a more informed electorate. Then fill out the ballot at your convenience, and drop it off at a secured drop box or put it in the mail. What we’ve seen is that the states with universal vote by mail have the highest turnouts. Right now, it’s statewide in Colorado, in Washington, in Oregon, in all-county-but-one in Utah, so this isn’t a red state or a blue state type of ideal, as well as a handful of other counties in both red and so-called blue states. These sorts of measures actually improve convenience in voting. They really work because we see the results in improved turnout. |
| Jeff Schechtman: | Why has this whole issue of felon re-enfranchisement become such a central issue today? We talked a little while ago about Florida. It’s already been an issue on the 2020 campaign trail. |
| Joshua Douglas: | I think because people are starting to see the moral wrongs of taking the right to vote away from life for certain individuals in our society. It used to be four states that had the worst felon disenfranchisement laws, that is, disenfranchised people for life. That was Florida, Virginia, Kentucky, and Iowa. Florida, you can take off the list because, as you noted, because of the state constitutional amendment that just overwhelmingly passed in 2018. Virginia’s governors, the past two, have been signing executive orders to re-enfranchise felons, so now we’re down to Kentucky and Iowa as the worst states. I think the reason this has become an issue and also has bipartisan support to repeal these laws is that people are starting to tell their stories. Seeing how these individuals are reentering society… The Florida advocates refer to people as returning citizens, and they’re neighbors. They’re your brothers or sisters, your family friend. What I noticed is that when individuals tell their stories, it can really change minds. |
| I opened the book with a story about Kentucky, which, as I said, has one of the worst felon disenfranchisement laws in the country, but it actually got a little bit better a couple years ago when the Kentucky legislature passed a bill to allow certain low-level felons to seek an expungement of their record. This was a bipartisan-supported bill thanks to the advocacy of this guy named West Powell – I tell his story – who was a former felon. He’d stolen a car radio from an auto salvage yard many years ago, and he wanted to tell his story. | |
| He said, “I cleaned up my life. I got a job. I married. I had kids, but I still couldn’t feel like I was a full member of society because I had this hanging over my head.” In the hearing room that day was a Republican senator named Whitney Westerfield who said he was convinced on the spot. He changed his mind. He was a law-and-order person who said he didn’t think felons should ever regain rights back, but he heard West Powell telling his story. I think the power of storytelling, or seeing these people as actual people in our society, has really made a big difference. | |
| Jeff Schechtman: | What has been the impact that you’ve seen in terms of voter turnout with respect to the massive amounts of money in politics today, the amount of advertising people see, the mail they receive, the robocalls they receive. All of it has, in many cases, a kind of negative effect on voter turnout. |
| Joshua Douglas: | Yeah, and unfortunately, negative campaigning works. The political science studies show if it’s a close election you can suppress votes for your opponent, essentially, through all this negative advertising. But what we’ve seen in the places that have adopted public financing, innovative public finance solutions, financing solutions like in Maine, like in Seattle with its Democracy Vouchers, is that this leads to campaigns funded not by wealthy interests. That leads to less voter apathy. I’m not sure about the exact links on turnout, and campaigning, and negative ads, but I will say that when we have solutions like robust ethics reforms or campaign finance reforms, which, again, often have bipartisan support, at least in terms of the different iterations of it, we see much less voter apathy. We see the ability of candidates who otherwise wouldn’t be able to run. If you don’t have wealthy backgrounds or ties to wealthy interests, have a chance to win in certain places. That’s why you see, in Maine, people like school teachers or people like restaurant workers who have run for office and won because they’ve had the chance to fund campaigns that would actually give them a chance to win, as opposed to under a system in which they’d have to just be seeking donations. |
| Jeff Schechtman: | What is the future of situations like Georgia or Kansas, where you have elected officials that are actively working at voter suppression? |
| Joshua Douglas: | Well, I think it’s crying out for a solution, especially in states where you have elected officials running elections in which they’re also candidates, like we saw in Kansas, like we saw in Georgia. That may be calling out for a judicial solution in terms of required recusal, but it does call into question why we have partisan-elected officials in the first place. I think we can, again, point to localities and many places that don’t elect their officials in partisan races. You see these local elected officials who are really just trying to do the best job possible to make their election systems fair, secure, and inclusive, and bring as many people into the political process as well. Unfortunately, statewide officials, many of them are partisan-elected, and I think that’s really unfortunate. We need to come up with a solution to change those offices to not have such partisan balance. Again, perhaps it’s up to the courts in those egregious examples, but I do think that there’s some good news on the local level if we champion our local elected officials who are really doing a great job on the ground. |
| Jeff Schechtman: | To what extent do you think that the current debates with respect to immigration and census counting is going to have an impact that filters down into elections going forward? |
| Joshua Douglas: | Well, Jeff, I think part of that question is dependent on what the US Supreme Court does in the citizenship question case. The federal government is trying to add a question to the census that asks everyone whether they are a citizen or not. There’s some real concern about if that question is on the census, is that going to depress response rates in minority communities with a lot of non-citizens. If that happens, I think we’ll see a major effect on the 2021 round of redistricting. It also might affect the electoral college numbers, because the number of electorate each state has depends on the number of members of Congress they have. I think that is really concerning if the Court decides to uphold the citizenship question, and we’ll have to wait a couple months to see what happens on that front. |
| But then there’s this other question about just non-citizen voting rights in general. There’s a couple of cities in California, including San Francisco, that allow non-citizens to vote in school board elections. The theory being, they’re validly sending their kids to the local schools, and they should have a say in local school policy. What we see is this push and pull between voter expansions and retractions. This whole anti-immigrant sentiment, which, by the way, is why we have registration deadlines. The history of voter registration deadlines, and voter registration in general, comes from the aftermath of World War I, and an anti-immigrant sentiment, and the desire to make sure that non-citizens were not voting. I think this push and pull is just a continuing aspect of our political discourse, and we’ll see what happens on that. | |
| Jeff Schechtman: | What can we change with respect to registration to make the process easier? |
| Joshua Douglas: | Well, there’s two reforms that are working really well in a lot of places. One is automatic voter registration, where the state takes the responsibility of putting everyone on the voter rolls instead of making people opt in, which California has recently adopted. It started in Oregon, thanks to an innovative thinker named Steve Trout, who basically was getting heat on both sides about the voter registration rolls and came up with an idea to say, “Why not put people on since we already have their information, as opposed to requiring them to opt in?” This has proven results. The states with the highest voter turnouts have automatic voter registration. It spread to about a dozen places, both so-called red and so-called blue states. |
| The other one is same-day registration, which a handful of states have, where you can register to vote on the same day as election day. In this day and age of technological advances, you don’t need 30 days to check the voter rolls anymore. These states don’t have massive voter fraud. That’s the common pushback but these states, like Minnesota, don’t have issues with voter fraud on election day. Again, studies show that same-day registration leads to much higher turnout. These are reforms that are actually working. They’re being implemented thanks to these everyday Americans, these democracy champions, and they improve voter turnout. | |
| Jeff Schechtman: | Finally, Joshua, what are you most optimistic about and most pessimistic about as it relates to voting? |
| Joshua Douglas: | Well, most optimistic that there is this groundswell, this grassroots effort to expand the electorate to make it more inclusive, more democratic, and more convenient to vote. I tell all of these stories in the book that really make me optimistic. Every time I interviewed one of these people, I just rushed to my computer to start writing. I wanted to tell their stories because they were so inspiring to me. I hope that they’re inspiring to others and give people hope. For me, the optimistic thing is this… We have this sentiment that let’s throw up our hands, and there’s so much doom and gloom. Yet the answer is actually no, there are great people on the ground all over the place working to expand the electorate, and make voting more convenient, and more inclusive, and reduce voter apathy. |
| I guess on the negativity side is we see partisanship still enter this area, especially where you have legislatures that are thwarting the will of the voters by doing things like you said in Florida, trying to repeal the state constitutional amendment or cut back on it. You see this in other places like Missouri, recently, that’s trying to undo some laws that the voters just passed there. I think we need, as a society, to push back against these entrenched politicians from passing rules that are contrary to the will of the voters that really do rig the system. | |
| Jeff Schechtman: | Joshua Douglas. His most recent book is Vote For US. Joshua, I thank you so much for spending time with us. |
| Joshua Douglas: | Thanks, Jeff. I appreciate it. |
| Jeff Schechtman: | Thank you, and thank you for listening, and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate. |
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