The Equal Democracy Project at Harvard Law School

Fighting to dismantle the political barriers to our currently unequal democracy

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Getting on the Ballot Doesn’t Have to Be this Hard

By: Aidan Calvelli ’24 | November 30, 2021

Election law is having a moment. When Democrats took the House in 2018, their top priority was H.R. 1, a sweeping political reform bill. The 2020 election made the law of democracy scholars in–demand commentators. And this summer, the Supreme Court gave the Voting Rights Act its second judicial buzzcut of the decade in Brnovich v. Democratic National Committee.

This focus is a needed response to proliferating crises of democracy, like draconian voting barriers, unregulated dark money, and challenges to the legitimacy of elections.

Still, in the midst of these crises, we should not lose sight of an election law issue that often flies under the radar: ballot access laws—or the rules that shape how candidates and parties are allowed to appear on voters’ ballots.

These kinds of laws are often so technical that they fly under the radar—voters think more about who to vote for than how the candidates arrived on the electoral slate. But under the surface, America’s current ballot access is a threat to democracy. Candidates—especially those not well-funded or not affiliated with the Democratic or Republican parties—frequently have to jump through a string of hoops just to run, including sky-high signature requirements and costly filing fees. This system makes it harder for nontraditional candidates to get involved in politics, limits voters’ opportunity to express their true preferences, and undermines America’s commitment to inclusive democracy.

America’s onerous ballot access restrictions are a product of historical choices, not fate. When the Australian ballot was introduced to the US in 1888, ballot access for parties was often simple: many states listed any party that asked to be on the ballot, and signature-gathering requirements rarely left the triple digits. Since then, the trend has been towards restriction. In 1983, for example, North Carolina raised the number of signatures needed by 738%, from 5,000 to 36,949. Other new requirements de facto prohibit third-party participation: Virginia, for example, requires that a party receive 10% of the statewide vote in one of the past two elections, which no minor party has met since the 1990s.

In most other developed democracies, restrictions like these would be anomalous. In Canada, any party with 250 members can run candidates that gather only a hundred signatures; in the United Kingdom, Parliamentary candidates need only ten signatures. France and the Netherlands only require that parties fill out certain forms. The U.S. system—with its permissive rules for established parties and draconian ones for minor parties—sometimes more closely resembles autocracies like Belarus than our democratic peers.

Courts have played a central role in validating the current regime. Many ballot access cases are governed by the Anderson-Burdick standard, a balancing test in which courts use strict scrutiny on access restrictions when they have a “severe” effect on voters’ ability to select their preferred candidates, but use only rational basis review when there are “reasonable, nondiscriminatory restrictions” on access. Dicta in Storer v. Brown aptly captured the effect of this doctrine: “It is very unlikely that all or even a large portion of the state election laws would fail to pass muster under our cases.”

The consequences have been predictable. Along with structural features like single-member districts and winner-take-all elections, strict signature requirements and filing fees have made it difficult for minor parties and independent candidates to gain an electoral foothold. In 2020, only 8 third-party or independent candidates received more votes than the margin of victory in federal elections, and only 69 more did the same in all state and local elections.

Minor parties that struggle to make the ballot face an obvious harm. Less obvious but as important is the harm to voters. Looser ballot access laws won’t catapult the Green Party to the presidency. But when only a narrow set of candidates functionally can run for office, voters are less able to use elections as a vehicle for expressing their political beliefs. Elections should be more than just a formalistic tallying exercise; they can be a time for citizens to say how they want to be represented.

Earlier Supreme Court caselaw, now largely neglected, hinted at this more democratic purpose underlying ballot access laws. Williams v. Rhodes held that an Ohio signature filing requirement violated equal protection by treating minor parties differently than major ones and violated free association by limiting the effectiveness of the franchise as a political association; the restrictions harmed both those running and those voting. In Bullock v. Carter, the Court held that a Texas law mandating filing fees for anyone trying to appear on a primary ballot violated equal protection by preventing poor candidates from winning a party nomination. And in Lubin v. Panish, the Court wrote that “absent reasonable alternative means of ballot access, a State may not … [deny] a person the right to file as a candidate solely because of an inability to pay a fixed fee.”

These cases together suggest that reasonable access to the ballot for all interested candidates is fundamental to the constitutional regime.  Reviving this animating idea would be an important step towards making space in our electoral system for the full diversity of preferences in the American electorate. The current ballot access system that makes it easy for the politically powerful to be heard and makes it hard for the voiceless to grow their power is a threat to the ideal of free and fair elections. But we are not fated to the current system. Democracy reform advocates are right to focus first on fighting laws most likely to affect electoral outcomes, like the polling place restrictions enacted in Georgia and Texas. But in this rare moment of intense focus on democracy issues, advocates should take a holistic approach to procedural fairness. Any redesign of the way America votes should make it easier for minor party, independent, and low-income candidates to throw their hat in the electoral ring.

Aidan Calvelli is a JD Candidate at Harvard Law School. 

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We Must Defend the Integrity of Vote Counting, Not Just Vote Casting

By: Mark Haidar ’23 | September 13, 2021

As Benjamin Franklin was exiting the Constitutional Convention in 1787, someone asked him, “Doctor, what have we got? A republic or a monarchy?” Franklin famously responded, “A republic, if you can keep it.”

If you can keep it. That is the critical challenge facing our democratic republic today some 234 years later. The actions of Congress over these next couple of months may well determine whether we are prepared in meeting this challenge.

This year alone, over 400 bills have been introduced in state legislatures nationwide that make it harder to vote, with at least 18 states passing such bills into law. These voter suppression bills, which target the casting of one’s vote, have received significant public attention, and rightfully so — a democracy depends on citizens having access to the ballot, and these bills unnecessarily limit that access.

But there is another, more pernicious campaign that could potentially disenfranchise many more Americans: the campaign for election subversion. All Americans should have confidence that their vote will be counted and election results will be accurately reported. However, that baseline assumption is currently at risk.

Following the 2020 election, we saw brazen attempts at election subversion by various political actors — from former President Trump asking Georgia’s secretary of state to “find 11,780 votes” to change Georgia’s election results, to 17 Republican attorneys general submitting a frivolous brief asking the Supreme Court to overturn election results in four states, to 147 congressional Republicans voting against certifying the election even as a violent mob overtook the Capitol just hours before.

While these attempts to overturn the results of the election may have failed in 2020, we may not be so lucky in 2022 or 2024.

Rather than being exalted for their fidelity to the rule of law, individuals who refused to bow to pressure and undermine the most secure election in American history have either been ousted or stripped of their powers. Georgia’s secretary of state was stripped of voting powers on the State Election Board. A Republican in Michigan who voted to certify the results of the election was replaced by the GOP. Representative Liz Cheney, once the third-ranking member of Republican leadership in the House, was ousted from her post for refusing to support President Trump’s conspiracy theories surrounding the 2020 election only to be replaced by a congresswoman who promoted them.

These individual examples are part of a larger, coordinated effort by partisans to manipulate elections. As of June 2021, Protect Democracy identified 216 bills nationwide that would interfere with election administration. 24 of these bills have been enacted into law.

For instance, one newly enacted bill in Georgia gives the state legislature control of the State Election Board and provides a pathway for it to appoint a single person to take control of typically bipartisan county election boards. Another bill, introduced but not passed, would give the state legislature in Arizona the authority to override the secretary of state’s electoral vote certification and instead allocate electors to their preferred candidate.

As the Senate returns from recess and considers voting rights legislation, it must pass the For the People Act (H.R. 1/S. 1) and the John Lewis Voting Rights Advancement Act (H.R. 4). These bills are crucial to combatting voter suppression — as the former preempts many of the restrictive bills passed by states this year while the latter strengthens existing anti-discrimination laws to prevent restrictive bills from taking effect in the future.

In addition to addressing voter suppression, Congress must also act to address the growing threat of election subversion, including modernizing the Electoral Count Act and passing the Preventing Election Subversion Act. These measures would make it more difficult for partisans to interfere with the integrity of our elections.

Ensuring that every citizen has meaningful access to the ballot and that the will of voters is respected are basic requirements of a democracy. When it comes to safeguarding our democracy, the Senate needs to make protecting the fundamental right to vote its first priority.

Mark Haidar is a Joint JD/MPP Candidate at Harvard Law School and the Harvard Kennedy School of Government. He previously served as President of the Equal Democracy Project from 2019-2021.

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A Cry for Help: Civic Education in Today’s America

 By Patrick O’Connor | April 18, 2021

 

There is a “deep flaw” in our nation’s education policies. “American democracy is in peril.” These are two statements made by U.S. District Court Judge William Smith in his decision to reluctantly dismiss a class action brought on behalf of Rhode Island students to establish public education as a right under the U.S. Constitution. The plaintiffs’ argument in Cook (A.C.) v. Raimondo,[1] is that the Constitution contains an implied right to an education that adequately prepares students to become capable citizens and participate in democracy. The lawsuit claims that, as a result of their failure to provide this necessary basic education, state officials, including then-Governor Gina Raimondo, have violated the Equal Protection Clause of the Fourteenth Amendment.

The largest obstacle for the Cook plaintiffs is the U.S. Supreme Court’s 1973 holding in San Antonio Independent School District v. Rodriguez.[2] In Rodriguez, the Court declared that the Constitution does not guarantee equality of education. The Rodriguez case involved a challenge to the school district funding system in Texas. Because the funding system was primarily based on local property taxes, it resulted in significant disparities and state funding failed to equalize per-pupil expenditures. In ruling that education was not a “fundamental interest,” the Supreme Court rejected the claim that the funding system must pass a strict scrutiny standard of review.[3] The Rodriguez decision seems to have foreclosed any educational equity challenges in federal courts. In his order dismissing the Cook case, Judge Smith noted that the “arc of the law in this area is clear.”

Dissenting opinions in Rodriguez by Justices Thurgood Marshall and William Brennan argued that there is an implied right to education in the Constitution because education is fundamental to the exercise of other constitutional rights—namely the First Amendment right to freedom of expression—and the fundamental interest in voting. The plaintiffs in Cook invoke this reasoning by arguing that students require an adequate education to “function productively as civic participants capable of voting, serving on a jury, understanding economic, social, and political systems sufficiently to make informed choices, and to participate effectively in civic activities.”[4]

It remains to be seen how the Cook plaintiffs will fare on their appeal to the First Circuit, but there is undoubtedly a need for a newfound priority on civic education by the States in the spirit of Cook and Justice Marshall’s dissent. As Judge Smith wrote, Cook is “a cry for help from a generation of young people who are destined to inherit a country which we—the generation currently in charge—are not stewarding well,” while concluding that “[h]opefully, others who have the power to address this need will respond appropriately.”

The State of Civic Education

In the United States, the federal government funds STEM education at an annual rate of $50 per student. Civics and history? Five cents. And the disparity is not because the latter contains little room for improvement. That three out of five Americans adults cannot name the three branches of government is concerning. And that only one-third could pass the civics test for naturalization generates many thoughts.

One reaction to this clear need for more civic education is the nearly twenty states that have implemented a civics test as a requirement for high school graduation—usually in the form of multiple-choice questions taken from the USCIS naturalization test. While necessary, traditional civics knowledge is certainly not a sufficient condition for generating an informed citizenry and building a strong democracy. Something more is needed: perfect scores on civics exams may do little to stem the trends of asymmetric partisanship and hyper-polarization, virulent discourse, “Big Lies,” and political discussions often void of substantive policy issues—by voters and candidates, alike. More worrying than citizens forgetting the specific First Amendment freedoms is a declining trust in government and a lack of engagement in civic life—or that the Economist Intelligence Unit rates the United States as a “flawed democracy,” largely as a result of low ratings in the “functioning of government” and “political culture” parameters.

Civic education must teach students how government works. But it should also engage students in their community and help all students feel equipped to participate in civic life—ideals not achievable solely by fact-based multiple-choice testing. To that end, the Brown Center on Education Policy at the Brookings Institution has recommended ten proven practices that are critical for high-quality civic education—with only one relating to curriculum content.

In a recently released report, titled “A Roadmap to Educating for American Democracy,” the Educating for American Democracy Initiative calls for a shift from “breadth to depth” in civic and history K-12 education with an emphasis on a shared and ideologically pluralist national conversation. This roadmap is neither content-neutral nor fact-based: rather, it seeks to promote student inquiry through conceptual “driving questions” and interpersonal civic engagement. Principles such as “civic friendship” and “reflective patriotism” attempt to promote honest, productive engagement and a reasonable assessment of history, respectively.

A model for civic education, and an approach for incorporating contentious topics, can be found in Germany’s nonpartisan Federal Agency for Civic Education. Germany established regional civic education offices to facilitate “citizenship education” and provide information on a range of topics. A principle of the German model is that those topics that are most “political” should be the topics most protected from political interference in the school curriculum.

A Recent Example

Massachusetts, as the first state to require middle school and high school students to complete a civics project as part of its curriculum, has taken a positive step towards achieving deeper, community-focused civic education. The Massachusetts bill, An Act to Promote Civic Engagement, passed in 2018, bolsters the teaching of traditional civics topics, such as the founding documents, but it moves beyond book learning to promote the development of skills required of capable citizens.

The bill, with its focus on student-led projects, implements the “action civics” idea. Action civics is an approach by which students identify an issue that impacts their community and then develop an action plan to address the problem. At its root, action civics takes a participatory view of democracy and identifies that students learn best by doing. Action civics is one of the Brown Center’s proven practices and the primary catalyst of the civic learning approach proffered by Generation Citizen, which was part of the coalition supporting the Massachusetts bill. The action civics approach aligns civic learning with the broad push for the development of “21st Century Skills” in K-12 education. Examples include neighborhood sanitation in New York City, as well as Anaheim middle school students improving the quality of water in school drinking fountains.

Subsequent to the passage of the bill by the state legislature, the Massachusetts Department of Elementary and Secondary Education (DESE) released a guidebook which included examples of potential civics project topics for schools, such as youth vaping, transportation, and local police accountability. While implementation primarily occurs at the local level, state support is evident, and necessary, as there will likely be pushback regarding topics some deem too “political.” Other elements of the 2018 bill include the creation of a Civics Project Trust Fund, and competitions at the middle school (statewide civics challenge) and high school (voter registration) levels.

A recent report by DESE and another in-depth report issued by the Office of State Rep. Andres X. Vargas, provide key takeaways and suggested recommendations about the initial status of the Massachusetts civic education legislation.[5] Common findings, among teachers and students, included a broad interest and belief in the importance of civic learning, but varied levels of awareness of the new civic education standards. Unsurprisingly, and understandably, the COVID-19 pandemic has had implications on the implementation and current priority level of civic education. Recommendations for improvement centered around more professional development; increased involvement/support at the school administration level; equitable distribution of programmatic resources; the incorporation of more democratic classroom practices; and the development of holistic, portfolio-based assessment. Additionally, a recommended idea is a “civics seal” award for exemplary school districts to incentivize high-quality civic learning programs.

After completing an action civics project, nearly all surveyed students felt more knowledgeable about the purposes of government and more aware of the ways they could participate in civic society. Students also reported a feeling of greater connection to their school and community after completing a project. Importantly, there were strong findings that students felt more capable of distinguishing opinion from fact and more confident in engaging in civil discussion with those with whom they disagree. Teacher responses about their students also reflected these sentiments. Additionally, many teachers were cautiously optimistic about a renewed priority on civics and social studies, including the development of a statewide assessment, as this would lead to more (1) resources and support on the one hand, but on the other, (2) potential pressure to “teach to the test” combined with (3) a tension between standardization and authentic, student-led civic learning. The recommended portfolio assessment may help alleviate this pressure.

Democracy Requires Civic Education

Young people are becoming more civically engaged, according to traditional measures such as voting: estimates show that up to 56% of eligible voters, ages 18-29, voted in the 2020 presidential election, an increase of about ten percentage points from 2016. Youth advocates and organizers are also increasingly involved in issues that they care most about, including climate change, gun control, and racial justice. The COVID-19 experience is also likely to have generational impact. In an increasingly complex world, there is a clear need to provide a quality civic education to all students.

As students advance in school, they become increasingly “bored out of their minds.” The correct antithesis for boredom in schools should not be fun but rather authentic engagement. More traditional approaches to civic learning will do little to alleviate the feeling held by many students that school is utterly disconnected from their life. It is much easier to endure difficult assignments and aspects of life when there is a broader purpose behind one’s work. A civic education that connects to students’ lives can encourage them to explore their own ideas, find out how they can uniquely contribute to their community and, in the process, provide a greater context to the rest of their academic learning.

Over a century ago, John Dewey noted the familiar notion that for a government by way of popular suffrage to be legitimate, it must rest upon the internal authority of an educated populace. Dewey goes beyond that explanation for the importance of education to a democracy, describing democracy as “more than a form of government; it is primarily a mode of associated living, of conjoint communicated experience.” Civic education is a necessary component of what should be goals of quality education: furthering the self-actualization process, strengthening democratic participation, and increasing social mobility.

Despite rejecting education as a fundamental right in Rodriguez, the Supreme Court has consistently valued its importance, emphasizing that education provides “fundamental values necessary for the maintenance of a democratic political system” and “the very foundation of good citizenship.”[6] And Justice Sandra Day O’Connor, the last member of the Supreme Court to have served in a state legislature, founded iCivics, a nonprofit dedicated to providing high-quality, engaging civic learning for students. Nearly two-thirds of state high courts have stated that preparation for a “capable citizenry” is a primary purpose of the education clause of their state constitutions. It seems, in light of judicial reliance on the political process to find solutions, that any principled constitutional theory should include the right to an education adequate enough to exercise one’s constitutional rights and participate in civic society.

The current energy around reimagining civic education is indicative of the state of our nation. Across the country, numerous sectors and institutions recognize that something must be done to prepare students to think critically, improve our political climate, and bring truth to the aphorism that democracy is a verb. However, the what and how remain contentious along ideological lines—prompting the question of whether we disagree on our views of history and civic ideals because of our politics, or vice versa. Difficult conversations and challenges remain. Nevertheless, the momentum is encouraging, but it is also incumbent on everyone to realize that we are all teaching the youth and that they are always watching. We should keep the following in mind:

No written word, no spoken plea can teach our youth what they should be.

Nor all the books on all the shelves, it’s what the teachers are themselves.

Schools are ubiquitous and underutilized assets. Time will tell if the generation(s) currently in charge can get out of their own way and strive to educate the youth “not for the existing state of affairs but so as to make possible a future better humanity.” To paraphrase Horace Mann—as the kids are now, so will America soon be.

Patrick O’Connor is a 1L at Harvard Law School.

For more information on civic education:

https://generationcitizen.org/

https://www.icivics.org/

https://circle.tufts.edu/our-research/equitable-k12-civic-learning

https://www.civiced.org/

https://www.civxnow.org/

https://www.educatingforamericandemocracy.org/

[1] 2020 WL 6042105, C.A. No. 18-645 WES

[2] 411 U.S. 1 (1973).

[3] As a result of Rodriguez, education equity advocacy has been focused on state legislatures and litigated in state courts. Judge Jeffrey Sutton of the Sixth Circuit observes that the Rodriguez decision may have been a net positive as it resulted in school funding reform at the state-level, as opposed to a national approach. Today, all states now have some form of education funding equalization legislation, and the Supreme Court of Texas ruled that the system of school funding at issue in Rodriguez was unconstitutional under the Texas Constitution. Much inequity remains, particularly along racial lines. For a critical history of the case and the effects of inequality on students, see “The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Education Opportunity” (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015).

[4] In addition to the Equal Protection claim, Cook implicates Article IV, Section 4 of the Constitution (guaranteeing to every state “a republican form of government”). In a 2018 law review article, Professor Derek Black notes that during Reconstruction, the U.S. government used the guarantee of republican government in Article IV to force Southern states to guarantee public education in their state constitution as a condition of approval for acceptance back into the Union, and continued to do so even after ratification of the Fourteenth Amendment. Professor Black argues that this creates a stronger substantive argument to establish a fundamental right to education than that of the Equal Protection claim.

[5] Note: The author previously worked as a fellow for Representative Vargas on matters unrelated to civic education.

[6] Plyler v. Doe, 457 U.S. 202, 221 (1982); Brown v. Board of Education, 347 U.S. 483, 493 (1954).

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H.R. 1, Voter ID, and The Myth of Voter Fraud

By Catherine Walker-Jacks | April 11, 2021

 

H.R. 1—The For the People Act—is a bold piece of proposed legislation that would reform essential aspects of the American political system across campaign finance, voting rights, election security, ethics, and more. To strengthen voting rights, the bill aims to reduce many barriers to the ballot box, including by addressing states’ voter identification requirements. According to the bill’s drafters, identification requirements are “excessively onerous” and “disproportionately burden” minority communities. To mitigate these burdens, the legislation would require that all states permit eligible voters in federal elections to use “sworn written statement[s] to meet identification requirements for voting.” For voters who might have difficulties meeting their state’s identification requirements—which in several states are quite strict—H.R. 1 would provide an alternate means to cast a ballot on election day. This is a big deal.

But while many of H.R. 1’s provisions—including its proposals for nonpartisan redistricting committees and a public financing system—have garnered considerable coverage, its voter ID provision appears to be under-discussed. In fact, major publications’ summaries of H.R. 1 fail to even mention the provision, while commentary from opponents is often misleading. At the same time, state legislatures across the country are considering hundreds of new measures that may suppress the right to vote, including new voter ID restrictions, making this particular provision of H.R. 1 increasingly important.

Broadly, both H.R. 1 and this recent flurry of state legislation ought to spark a renewed conversation on why we have voter ID laws—which have been termed a “solution in search of a problem”—in the first place. Indeed, while proponents argue that voter ID laws are necessary to combat voter fraud, studies have consistently shown that fraud is extremely rare. It is particularly important to scrutinize the justifications for these laws in this moment, because, while Americans oppose many voting restrictions, voter ID laws actually continue to have public support, perhaps because many also believe the unfortunately widespread myth that voter fraud is common. This myth is dangerous, as it serves to justify laws that place minority communities at risk of disenfranchisement.

Contextualizing H.R. 1

Given what appears to be a relative lack of detailed coverage and analysis into H.R. 1’s voter ID provision, it’s worth noting what the legislation actually would—and would not—do in this area. Understanding the legislation’s potential effect requires a closer look into the patchwork of voter ID laws across the country. Currently, at least 36 states have laws that request or require some form of identification for in-person voters. Among these states, requirements vary considerably: laws differ both in terms of the forms of ID requested and the options available to eligible voters who lack ID.

Specifically, some voter ID states request only non-photo identification, like a bank statement or utility bill, while several other states require specific forms of photo ID. Among photo ID states, there is also variation in what forms of ID are accepted, including whether expired IDs and student IDs are permitted. Several states provide voters who fail to bring a requested form of ID with the option to cast a ballot that will be counted without further action on their part. For example, in states like Delaware, voters lacking ID may instead sign an affidavit of identity, while in a few states, poll workers or other voters may vouch for one’s identity. Conversely, in states with strict photo ID laws, such as Georgia or Indiana, an ID-less voter’s sole option is to cast a provisional ballot, which will only be counted if the voter subsequently provides the county election office with a requisite form of identification within a few days of the election.

Contrary to the assertions of some of H.R.1’s opponents, the legislation would not ban any of these voter ID laws. Instead, H.R.1 would mandate that each state provide an additional, complementary procedure for voters who lack ID: the option to complete a sworn affidavit of identity, signed under a penalty of perjury, and then cast a regular ballot. This option would be available to voters in all states for federal elections, leaving states’ procedures for their own elections untouched. Other blanket statements about H.R.1’s effect—such as Rep. Steve Scalise’s (R-LA) assertion that it would render each states’ voter ID laws “unenforceable and useless”—also fail to account for the bill’s actual effect, given how much each states’ requirements vary. Indeed, some voter ID states have already codified H.R.1’s proposed procedure, or something similar to it, for all of their elections. One of those states, in fact, is Rep. Scalise’s home state of Louisiana.

In states with stricter voter ID laws, however, H.R. 1 would mark a material change from the status quo, permitting all eligible voters to be sure that their votes will be counted on election day, though only for federal races. It could also make a substantial difference for voters in states like Florida, which provide an affidavit option for voters lacking ID, but one that requires signature matching for ballots to be counted, a practice that has been shown to lead to disenfranchisement. Additionally, having one standardized procedure available to voters in all states could reduce confusion about ID requirements among voters and poll workers and thus help reduce the risk of inadvertent disenfranchisement.

Given that many states are further restricting their voter ID laws—such as Arkansas, which recently removed its affidavit alternative, or Wyoming where the state’s first voter ID law was just signed into law—the potential impact, and importance, of H.R. 1 is growing by the day.

Voter ID Laws – A Solution in Search of a Problem?

While voter ID laws may feel like a mainstay of our political system, widespread voter identification requirements are actually a relatively recent phenomenon. Prior to the 2000 election, most states requested identification only from certain voters (i.e., first-time voters who registered by mail), while a few states had permissive non-photo ID laws. It was not until 2006 that a state, Indiana, required a voter to produce a government issued photo ID as a condition to voting. The Supreme Court upheld this law in Crawford v. Marion County Election Board, after plaintiffs, including the state’s Democratic Party and interest groups representing minority and elderly voters, argued that it unconstitutionally burdened the right to vote. The Court’s decision in Crawford and its subsequent decision in Shelby County v. Holder, which gutted the Voting Rights Act by removing the requirement that certain states receive federal preclearance before changing their election laws, helped to pave the way for the proliferation of voter ID laws across the country.

Proponents of voter ID laws argue that they are necessary to ensure the integrity of elections by preventing voter fraud. But, as voting rights advocates have argued for years, study after study has shown voter fraud is incredibly rare. Indeed, a comprehensive study found that between 2000 and 2014, there had been at most 31 credible incidents of voter fraud out of more than 1 billion ballots cast. The Brennan Center has also conducted a study on the matter and found incident rates of fraud between 0.0003 percent and 0.0025 percent, meaning that an American is more likely to be “struck by lightning than that he will impersonate another voter at the polls.” Its report also concluded that most reported incidents of voter fraud are actually traceable to other sources, such as “clerical errors or bad data matching practices.”

Courts too have said that in-person voter fraud is extremely rare. For instance, in Veasey v. Abbott, a case concerning Texas’ photo ID law, the Fifth Circuit found that there were “only two convictions for in-person voter impersonation fraud out of [twenty] million votes cast in the decade leading up to” the law’s passage. Even the Supreme Court in Crawford noted that the record in that case “contains no evidence of any [in-person voter impersonation] fraud actually occurring in Indiana at any time in its history.” Meanwhile, reports from the 2016 and 2020 elections support the conclusion that voter fraud is rare.

Nonetheless, many Americans have been led to believe that voter fraud is a persistent problem. As the events of January 6, 2021 underscore, the myth of voter fraud can lead to dangerous results. For the lawmakers who push voter ID laws—overwhelmingly Republicans—arguments about supposed voter fraud can serve as purported justifications that mask true motivations for such laws, such as the hope of gaining a partisan advantage by suppressing the votes of minority communities. In recent years, several Republican legislators have actually admitted the potential of using such laws for political gain by adding a barrier to the ballot box, including the former Pennsylvania house majority leader who stated in 2012 that a new voter ID law would “allow Governor [Mitt] Romney to win the state of Pennsylvania.”

Indeed, voter ID laws have been shown to disproportionately burden certain voters, placing them at higher risk of disenfranchisement. Millions of Americans, especially people of color, people with disabilities, and low-income voters, do not have the forms of ID required for voting. A 2006 study by The Brennan Center concluded that “up to 11 percent of U.S. citizens—twenty-one million eligible voters—did not have government-issued photo IDs . . . includ[ing] 25 percent of African-Americans, 18 percent of seniors sixty-five and over, and 15 percent of those making less than thirty-five thousand dollars a year.” In contrast, the study found that only eight percent of white voting-age citizens lacked government-issued ID. Several studies, including a 2014 GAO study and a comprehensive study from 2020, have shown that these burdens can translate to reduced turnout among minority voters. The myth of voter fraud thus poses a dangerous threat to democracy by serving as a justification for laws that may deprive many citizens of the right to vote.

The Future of H.R. 1 and Voter ID

Given Democrats’ slim majority in the Senate, current filibuster rules, and lack of Republican support, there unfortunately appears to be a difficult road ahead for H.R. 1, at least as it is currently written. Simultaneously, as noted, many state legislatures are considering, or have already passed, numerous new restrictions on the right to vote. And while there have been calls to resist efforts to dilute H.R. 1, one state’s recent experience adopting a photo ID law suggests that compromise could lead to at least some progress in mitigating the burdens of states’ most stringent requirements. In Kentucky, where the Secretary of State was elected on a promise to enact photo ID requirements and Republicans have a majority in the state legislature, deliberation and compromise with Democrats and voting rights advocates helped turn what might have become one of the strictest photo ID laws in the country into one of the more reasonable. Indeed, although the new legislation requires that voters provide photo ID, the state accepts more types of photo IDs than many other states and also allows voters who are unable to obtain photo ID to instead provide one of several forms of non-photo ID, complete an affidavit, and cast a regular ballot. Perhaps, then, Democrats in Congress could and should follow in the footsteps of Kentucky, and in the interim work to pass a more targeted measure to help alleviate the harms of the country’s strictest photo ID laws.

Broadly, elected officials committed to strengthening democracy must actively work to combat the myth of voter fraud—including by holding accountable those in power who perpetuate these falsities. As was highlighted by the recent report that the Trump administration’s false fraud claims helped lead to Georgia’s new restrictive voting law, until the record is set straight, this myth will continue to have damaging effects to our democracy.

Catherine Walker-Jacks is a 1L at Harvard Law School. 

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Issue Explainer: The Filibuster

 

By Christina Coleburn | March 21, 2021

 

As legislative battles rage in Congress, discussions about the future of the Senate filibuster have taken center stage. With bills quickly advancing from the House to the Senate under unified Democratic control, political observers are debating whether to keep, weaken, or nix the Senate filibuster altogether. This tool could make or break — and as it stands today, break — ambitious laws, from voting rights, to infrastructure, to immigration from coming to fruition. Through the filibuster, a few senators whose views represent a minority of voters, could effectively kill legislation that would impact and is supported by millions. Under this backdrop, the debate about filibuster reform is experiencing a revival.

What is the Filibuster?

The Senate defines the “filibuster” as an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” According to Professor Kenneth Mack, “what we call the filibuster is simply an interpretation” of the Senate’s Rule 22, which structures Senate motions and dates back to 1806. But the practice has changed drastically since then. 

In 1917, the Senate first imposed cloture, a rule that permitted a two-thirds majority to end a filibuster and bring the legislation to vote. Cloture is currently the only option through which the Senate can put a time limit on a bill’s consideration. The cloture rule was modified in 1975 to permit a narrower three-fifths majority, meaning 60 Senators, to terminate a filibuster. While only 51 votes – a majority – are technically needed to advance uncontroversial legislative bills (i.e. those advanced via “unanimous consent” or passed through the budget reconciliation process), the combination of the filibuster and cloture rules creates a high barrier for passage for most legislation: most bills considered in the Senate will need the support of 60 senators to cease debate and reach a vote. 

If even one senator acts to extend debate on a bill, then the votes of 60 members are required to move from debate to vote. Any senator can trigger a filibuster after notice is given, usually first to the party leadership. Simply standing up and saying “I object” when fellow senators attempt to advance the legislation is the most common formal step. While the triggering senator could speak about the reason for initiating the filibuster, the senator is no longer required to do so. The filibuster is a powerful tool because without enough votes for cloture, even one senator who uses superfluous motions or refuses to yield the floor during debate can kill legislation. 

How Has the Filibuster Been Used Historically? 

While the filibuster took the spotlight in the hit 1939 film “Mr. Smith Goes to Washington,” it has come a long way since a political newcomer utilized it to kill a corrupt senator’s grifting bill. In real life, it has been leveled by the Senate’s minority party against the majority on a host of issues ranging from global affairs and national security to presidential conduct and domestic policy. 

The Senate filibuster was not devised by the Founding Fathers, nor did they include the existing iteration of the filibuster in the Constitution. The Founding Fathers were, however, aware that the Constitution could embolden a persistent minority to prolong legislation through refusing to vote or holding repeated roll calls, according to political scientist Gregory Koger. Despite this and the fact that filibustering also occurred during the Continental Congress, the Founders’ views on the practice ranged from indecisive to pessimistic. 

While James Madison referred to quorum-breaking favorably as it pertained to the Virginia Legislature in August 1787, he later expressed negative views on the practice in his famous writings. Madison was apprehensive about the ability of a minority to block the majority’s will in Federalist Paper 58, writing that such a practice “leads more directly to public convulsions, and more ruin of popular governments[.]” He added that it could “extort unreasonable indulgences” and potentially compromise the “fundamental principle of free government[.]” George Mason, who was more optimistic about the effect of the minority’s blocking procedures, noting that fear about their occurrence could invigorate the governing process, nonetheless admitted that filibusters could prompt “inconveniences.” 

In the modern era, the filibuster was unsuccessful in reversing the censure of former President Andrew Jackson, but successfully delayed the arming of merchant ships against German U-boats and defeated the ratification of the Treaty of Versailles during World War I. Historically, the filibuster played an ugly role in upholding slavery: Professor Mack notes that one of the filibuster’s “principal uses in the nineteenth century was as a means of protecting the interests of slaveholders.” It was also infamously weaponized by Southern conservative Democrats of the 1950s and 1960s era to preserve discriminatory laws, like Jim Crow laws, as it was prominently invoked to delay the passage of anti-lynching, integration, civil rights, and voting protection bills. 

Why is the Filibuster Controversial?

Proponents of the filibuster contend that it protects the minority party from majority tyranny and encourages productive debate that stifles poor legislation. Critics counter that while this point may be theoretically salient, it flounders in practice under the weight of partisan gridlock and obstructionist realities. Rather than boosting fruitful debate to pass meaningful laws, skeptics assert that the filibuster is abused to yield the opposite result — suppressing debate and preventing popular bills that benefit Americans from seeing the light of the Senate floor. 

These types of pro-filibuster arguments are viewed as bad faith to filibuster opponents, juxtaposing their stated concern for the voice of the minority with policies that suppress the voices of voters who determine whether a party will ultimately be in the minority. As political scientists Gregory J. Wawro and Eric Schickler, wrote: “With party lines now corresponding to policy preferences (and ideological groupings) more tightly than in much of American history, the filibuster has become more clearly identified as a key tool of the minority party rather than as a tool used by various types of minorities.” This point is especially poignant as restrictive voting measures, some which have outsized impact or directly target minorities, have been proposed.

And the stakes are high: look to the contentious fight over voting rights currently waging at the state and federal level. State legislatures recently proposed roughly 250 voting restriction laws. These actions are a response to falsehoods about widespread voter fraud meant to cast doubt on the legitimacy of the 2020 election, which election officials dubbed “the most secure in American history.” An Arizona bill goes as far as to allow the legislature to overturn presidential election results cast within the state, giving it the power to invalidate the will of Arizonans and their collective Electoral College power. Reflecting the impact of state efforts to ‘protect the vote,’ Arizona State Rep. John Kavanagh (R-D. 23) told reporters that “Republicans are more concerned about fraud, so we don’t mind putting security measures in that won’t let everybody vote — but everybody shouldn’t be voting… we have to look at the quality of votes.”

More broadly, supporters of ending or reforming the filibuster point to the popularity of legislation that Democrats – the Senate majority – have proposed, and that Republicans have vowed to oppose on principle. They cite the $1.9 trillion Covid-19 relief bill that passed in March as a fresh example. Its provisions — from $1,400 stimulus checks, funding for K-12 schools, larger tax credits for families, and aid to local and state governments — earned high approval ratings from Americans (66% of voters thought the legislation would help the economy, which the pandemic seriously harmed, with especially stark consequences for Americans who are low-income, young or new to the workforce, of color, and women). Zero congressional Republicans voted for the bill, despite support from 41% of Republican voters. A blow against the argument that filibusters encourage productive debate, 57% of Americans thought that the Biden administration worked with congressional Republicans in good faith while 55% said the GOP did not work with the White House in good faith. They also note the huge discrepancy between the scope of the December 2020 relief bill compared to the March 2021 legislation to argue that the filibuster stands in the way of laws that could improve American lives in an unprecedented public health crisis.

How Does the Filibuster Affect Democracy? 

The filibuster exacerbates the tension between the will of most Americans and the will, or potential obstruction, of a few elected officials. The House has recently advanced ambitious bills to reform campaign finance and policing, provide a path to citizenship for Dreamers, and quell LGBTQ+ discrimination, but they have stalled in the narrowly divided Senate where opposition is fierce within the minority party. The bills at issue carry could have changed millions of lives. The filibuster, by implication, is a Senate institution that functions to obstruct representative democracy. 

Polling shows that a majority of Americans support this legislation advanced by the congressional majority (currently, Democrats). Nine months prior to the House advancing the American Dream and Promise Act, a Pew poll found that 74% of Americans, including 54% of Republicans, favor granting permanent resident status to immigrants who came to the United States as undocumented children. Majorities also favor anti-discrimination protections for transgender people: a June 2020 Kaiser Family Foundation poll reported that 89% of Americans and 77% of Republicans think it should be illegal to fire or refuse to hire transgender people. From the same poll, 88% of Americans and 79% of Republicans believe it should be illegal for doctors to refuse to treat transgender patients.  

What Comes Next?

While the filibuster appears secure for now based on the reluctance of Senators Joe Manchin (D-WV) and Kyrsten Synema (D-AZ) to outright eliminate it, ideas for reform have gained traction among many Democrats, including former President Barack Obama, Senate Majority Leader Chuck Schumer (D-NY), and Democrats across the ideological spectrum from moderate Senators John Tester (D-MT) and Amy Klobuchar (D-MN) to more progressive Democrats like Senator Elizabeth Warren (D-MA). President Joe Biden has also joined the growing chorus for reform or willingness to consider it in calling for a “talking filibuster” in a March 16 interview. His statement indicates an increased willingness to consider modifications to the rule and follows White House Press Secretary Jen Psaki’s comment that Biden is “open to hearing” ideas on the subject. Although the reform process could be complicated, options are on the table. As examples of potential reforms, (1) senators who refuse to vote for cloture could trigger a suspensatory rather than a total veto or (2) the Senate could change supermajority voting rules. 60 votes are currently needed to move a debate to a vote. Lowering this threshold or returning to a talking filibuster, which forces senators to hold the floor and speak while they prolong the vote to end debate, are potential changes that could be explored.

On the other side of the aisle, Senate Minority Leader Mitch McConnell (R-KY) promised “scorched Earth” if the filibuster process were to be changed, reviving memories of obstructionism and skepticism that tensions could possibly escalate further after his tenure as majority leader. McConnell previously resisted calls in 2018 from House Republicans to nix the filibuster, foreseeing that the GOP would not always hold the Senate majority. With that prediction now a reality, it remains to be seen whether Democrats will unify to reform the filibuster or allow it to remain in place barring further developments.  

Christina Coleburn is a first-year student at Harvard Law School. Follow her on Twitter: @C_Coleburn.

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The Democratic Paradox of Ballot Measures: In Order to Form a More Perfect Uber?

By Caroline Hansen | November 1, 2020

 

When U.S. voters receive their ballots this year on November 3 (or before, by mail), most have likely only been thinking about the very top of the ticket. Even the most responsible voters often don’t know – or care – about everything on their ballots, especially the seemingly inconsequential state and local “issue, proposition, measure and amendment” questions near the end. What’s more, the language of these questions is usually indecipherable to the average voter, leading to haphazard selection or blank answers.

Those questions – innocuous at best, head-scratching at worst – have a name: ballot measures. And in their ability to either make new laws (in the form of ballot initiatives) or enact or repeal laws that have already passed the legislature  (in the form of ballot referenda) they are also one of the most important, and controversial, aspects of our modern ballot. Because they change laws quickly, ballot measures provide an opportunity for interest groups and citizens with the requisite support to circumvent the normal lawmaking and editing process. But what started out as a tool developed to further democratic participation in lawmaking has recently fallen victim to corporate takeover in many instances, ironically allowing for the further exacerbation of the problem it was meant to solve: elite lawmaking. 

The modern ballot measure was born in the Progressive Era (1890 – 1920). Upset with the greedy opportunism of legislators, Progressives rallied behind and successfully instituted procedures that allow citizens to have a hand at changing the law. Ballot measures really exploded in popularity, however, in 1978, after California’s Proposition 13, an initiative that produced sweeping changes for state property taxes.

Currently, 26 states allow citizens to put a measure on the ballot. Citizens must get the required number of signatures, which varies from state to state, to favor amending, overturning or creating a new state law, after which the state government suggests the measure on state and federal election ballots.[1] 

But the general proposal framework belies a more complicated reality. U.C. Berkeley professor George Lakoff has described how challenging it can be to create a ballot measure as a private citizen after seeking to amend Prop 13 in California:

“About a decade ago I tried to change Prop 13 by proposing a ballot initiative as a private citizen … It required a change of two words in Prop 13, from “two-thirds” to “a majority.” By giving over 50 talks and constantly writing, I got more than 16,000 people to volunteer their spare time to gather signatures.

It wasn’t nearly enough. I discovered that there are companies that hire and train signature gatherers for ballot initiatives and they cost several million dollars. You need lots of money, especially if there are going to be ads. Moreover, you need high-powered political backers …”

Lakoff’s experience is indicative of the irony of the modern ballot measure – what was once a way for citizens to participate further in the democratic process has become basically only accessible to the powerful: those who can accrue hundreds of thousands of signatures through sophisticated, expensive means. Given the fact that money has become so paramount to the ballot measure process, ballot measures have largely been usurped by corporate interests. Ballot measures are now considered a fast and easy way to overturn competitively unfavorable laws passed through the traditional state legislative process. For example, in 2018, The Walt Disney Company and the Seminole Tribe of Florida (which runs many of the largest casinos in America), sunk $26 million into Amendment 3, an anti-casino initiative, to protect their Florida resorts from potential competition.

In 1998, Washington Post Columnist David Broder indicated that he “was able to verify at least $250 million spent on [ballot measures] at the state level … about $100 million more than the taxpayers gave the three presidential candidates in 1996 to conduct their campaigns for the presidency.” In 2020, that number swelled to $1.08 billion.  

Roughly $194 million of the total this year alone has been devoted to California’s Proposition 22 (App-Based Drivers as Contractors and Labor Policies Initiative): the most expensive ballot measure to date. Prop 22 seeks to free up companies like Uber, Lyft, DoorDash, and Instacart from complying with AB-5, the 2019 state law that forced companies to provide employee benefits to gig workers.

A staggering 95% of the funds sunk into Prop 22 have come from the “yes” side, supported by the aforementioned gig-economy behemoths. Meanwhile, the remaining 5% reflects the efforts of unions and Democratic politicians, including Joe Biden and Kamala Harris.

Most of that money goes to advertisements and awareness campaigning on either side.

“The ‘no’ side always knew it was going to be outspent, but we didn’t think we’d be outspent 13 to 1,” Mike Roth, spokesman for the “No on 22” campaign said to the Los Angeles Times. “No corporations should be able to buy their own laws.”

Voters can easily fall victim to seductive advertising when general awareness of the matter is low, as is the case with most ballot measures. Alison Ledgerwood, a psychology professor at U.C. Davis testified to ABC10 to how well financed ballot measure campaigns can prey upon a vulnerable population, unfamiliar with state law: “These down-ballot questions aren’t the things most people were taught in their classes when they learned about government branches. I didn’t learn any of that stuff in school, so where are you supposed to learn it, right?”

Advertisement for Prop 22
Credit: Business Insider, available at https://www.businessinsider.com/uber-drivers-lawsuit-sue-over-prop-22-messages-in-app-2020-10.

Such is the case with Prop 22, where “yes” proponents have even turned to subliminal means to affect the voting population. Uber drivers launched a lawsuit against their employer after receiving relentless barrages of push notifications with biased information about Prop 22 while using the app.

“Let’s be absolutely clear,” David Lowe, an attorney for plaintiffs said in a statement replicated by TechCrunch. “Uber’s threats and constant barrage of Prop 22 propaganda on an app the drivers must use to do their work have one purpose: to coerce the drivers to support Uber’s political battle to strip them of workplace protections.”

Campaigning often even extends to the language on the ballot itself. In 2016, the Washington Post described a steadily increasing phenomenon of “targeting of secretaries of state [the officials tasked with writing ballot questions] with campaign donations, corporate-funded weekend outings and secret meetings with industry lobbyists.”

It’s hard to look at the language of Prop 22 without seeing bias in some form. The voting options for Prop 22 appear in the California ballot as follows:

A “yes” vote supports this ballot initiative to define app-based transportation (rideshare) and delivery drivers as independent contractors and adopt labor and wage policies specific to app-based drivers and companies.

A “no” vote opposes this ballot initiative, meaning California Assembly Bill 5 (2019) could be used to decide whether app-based drivers are employees or independent contractors.

Indeed – at first glance, a “yes” vote seems to support drivers rights and their flexibility, while a “no” vote instead subjects the driver to the inflexible order of the California Assembly Bill. Critics of Prop 22 have attacked this language, even suing the secretary of state Alex Padilla, noting that all AB-5 would do is to “require rideshare and other such companies to make their drivers employees,” and allow them to obtain more favorable benefits as well as a higher minimum wage

These factors in total – relentless, widespread general campaigning, most voters’ unfamiliarity with labor laws, and confusing wording on the ballot itself – make a strong case for “yes” proponents winning the day, retaining the gig-economy status quo.[2] If the Proposition does not pass, Uber and Lyft have threatened to pull out of California entirely, and increase fares by 25-111%. .

Granted, not every ballot measure has been dominated by corporate interests. Many measures are concerned with more typical legislative matters like redistricting, term limits, bond issues, and voting rights. 

But the current pandemic-addled state of the U.S. has the potential to further exacerbate the phenomenon brought into dramatic focus by Prop 22. “This year … citizen-driven initiatives were really affected by the pandemic,” Amanda Zoch, a policy specialist at the nonpartisan National Conference of State Legislatures said to POLITICO. “How do you get signatures when you’re not supposed to leave your house or see other people? This year’s general election has 38 statewide citizen initiatives across the country. And that’s a big decrease — there were 60 in 2018 and 72 in 2016. Honestly, that’s a big story.“

So that means while we’re social distancing, we could be more impressionable than ever to the well-publicized and favored measures sponsored by big business. 

It’s more important than ever to educate yourself on your state ballot to vote for what you really believe in. It might be one of the last exercises of true democracy we have left.

Caroline Hansen is a 1L at Harvard Law School. 

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[1] There is one type of ballot measure that does not follow the standard process of citizen signature collection – a legislative referral, when a state legislature independently adds a referendum to the ballot.

[2] Voter expectations from a recent CA poll are as follows: 39% yes, 36% no, 25% undecided. The “leading question” nature of Prop 22’s wording may swing that undecided over to a yes on Election Day.