Democracy Decoded: Season 2, Episode 5 Transcript
Simone Leeper: Trevor Potter is the president of Campaign Legal Center, so he thinks about voting, well, all the time. And when an election comes around and he has to cast his own ballot, he wants to be where it all happens.
Trevor Potter: I actually like doing it in person because I live in a fairly rural area and I have a chance to see friends and neighbors on election day, either behind the desk checking people in or standing out front at tables that the two local political parties put up, or just standing in line and talking to neighbors waiting to vote.
Leeper: During the midterm elections in November 2022, voting was simple and quick for him.
Potter: I walked in, there was no line. I handed them my ID, they read my address, they handed me the ballot. And so it took about 30 seconds to vote and I turned around and stuffed it into the machine and I was in and out in under five minutes.
Leeper: But Trevor knows his voting experience is not universal. Many voters face long lines, have to jump through bureaucratic hoops, or struggle to find the time or transportation to get to the polls, especially voters of color.
I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. This season we've been digging into the issue of voting access in our country. Today, in the season finale, we're going to talk about what the 2022 midterms looked like when it came to voting access, especially how this differed from the 2020 election. And we're going to explore what it would take to make voting more accessible in the future.
One thing that's come up in our previous episodes is how the pandemic dramatically changed how people voted, because many state governments found ways to remove barriers to voting.
Potter: They ended up making it much easier in many cases than they had before.
Leeper: This is Trevor again.
Potter: States that had required special excuses to vote absentee by mail early, dropped those requirements so that anyone could vote-by-mail. States and localities ended up with longer voting hours, with drive-by voting so that you didn't need to leave your car, with drop boxes so that you could vote a ballot at home and then drop it off somewhere without going into a building where you might run into other people. All of those were tried in different places, and the result was a enormous turnout. It was easier for people to vote, more convenient. They could vote without having to worry about taking time off from work on election day. So all of that resulted in one of the largest turnouts we've ever seen.
Leeper: These changes proved that the way we vote could look different. When voting is more convenient, more people can make their voices heard, but not everyone saw it that way.
Potter: After the 2020 election, we saw some states decide that they wanted to tighten up the election rules, the opportunity to vote. May have felt that it was too easy to vote, that too many people voted, that the wrong people voted, i.e., the other party.
Leeper: And for the midterms in 2022, we began to see the impact of these new policies that rolled back the freedom to vote.
Potter: We saw fewer voting hours, fewer days of early voting, definitely fewer drop boxes.
Leeper: Advocates of fair representation like Trevor and others at Campaign Legal Center like myself were keeping a close eye on how the more restrictive voting policies played out in 2022. Midterm elections typically have lower turnout than presidential elections. Despite this, there was still an impressive number of people who showed up to the polls. In fact, voter participation among people ages 18 to 29 was the second highest it's been in 30 years. On the other hand, the 2022 election was also the first time we've seen people run for office who denied the validity of President Biden's election in 2020. Many of those candidates were vying for positions where they could run our elections and in turn influence the results.
Potter: We had candidates who were running for offices like Governor, Secretary of State, Attorney General, which have significant authority over the election process, who were saying that they thought the process was fraudulent, they wanted to change the process. And in some cases, officials actually said, "If I am elected, there will never be another Democrat elected in this state."
Leeper: The good news is that generally speaking, voters refuse to put those candidates in positions where they could manipulate elections. Still, some candidates continued to question the results even though there was no evidence of foul play. For example, a few candidates questioned why it took so long for the final results to come out in key races, including in Pennsylvania, Arizona, and Nevada. Trevor says, "Not getting election results on Tuesday night doesn't mean something nefarious is at play, it just means election officials are taking the time to run through all the necessary security measures to accurately count and verify each ballot. These extra steps may prolong the process of counting votes, but they ensure our elections are secure and accurate."
Potter: Let me give you an example, which is Republicans were challenging the election process in the City of Philadelphia saying that the city didn't have adequate attempts to make certain that when someone voted by mail, they didn't also vote in person. The result of that is that Philadelphia has now added an extra step where when they receive mail ballot and count them, they will first make certain that the voter hasn't appeared in person and voted on election day. Well, that's an extra step that will slow their process down because before they opened the paper ballot and have it processed, they're now going to have to check another set of records, and that will take some time.
Leeper: And in some states, including Pennsylvania and Wisconsin, their laws prevent election workers from counting any ballots until election day, which has an impact on how fast results can come out.
Potter: The legislature has refused, contrary to all advice it received to allow election officials to process paper ballots, mail-in ballots, in advance, which is what almost all states now do. But Pennsylvania hasn't done that, and that has meant slower vote counting because we know what happened on election day because this machine tabulated, but then they have to open all those absentee ballots, compare the envelopes, compare the signatures, then put the ballots that are in those envelopes into machines to count, and all of that starts after the election.
Leeper: Fortunately, despite concerns about voter intimidation, violence, or candidates refusing to concede their elections, aside from a few glitches, Trevor says the midterm elections went very smoothly.
Potter: The 2022 election was really well run, there were very few problems with it. Voters were able to vote. There were not disruptions at the polls or significant number of challenges of voters, and most of the counting proceeded as expected in those states where mail and ballots cannot be opened and processed until after election day.
Leeper: The story of the 2022 election is that voters showed up to protect our democracy and wanted to expand the freedom to vote, not undermine it.
Potter: What we have seen in the states is a number of citizen ballot measures that have passed to make it easier to vote. For instance, in Connecticut, the state authorized early in-person voting, which most of the country now has. Michigan had a sweeping proposal that requires nine days of early voting and authorizes drop boxes for vote by mail ballots.
Leeper: Now, what would it take to get policies like this passed in more states or even nationwide?
In our last episode, we talked about the Supreme Court case, Shelby County v. Holder. That case gutted the pre-clearance clause of the federal Voting Rights Act, which mandated that states, counties, and cities with a history of voter discrimination against minority groups get any changes to their voting laws approved by the Department of Justice before they went into effect.
If you remember, when the Supreme Court gutted the pre-clearance formula, it essentially gave states free rein to change their voting procedures without federal oversight. And many states did, new registration requirements immediately popped up, early voting days were reduced and polling places were moved. Same-day registration was outlawed in some places. Aseem Mulji is a lawyer at CLC who has watched these changes happen around the country since the 2013 decision.
Aseem Mulji: States are continually coming up with novel ways to restrict the franchise, and our laws need to be flexible enough to deal with that. And they have been, but unfortunately, the Supreme Court's been interpreting them in an increasingly restrictive way, makes them far less effective.
Leeper: Which Aseem says is a change from the court that continually defended the Voting Rights Act after it was passed in 1965.
Mulji: And that time, the Supreme Court was really at the vanguard of protecting voting rights, and now the Supreme Court has really gone completely in the other direction. They're really the anti-democratic body standing in the way of a lot of the reforms that we need, both in voting rights, redistricting, and in campaign finance.
Leeper: It's been nine years since the Shelby County decision and states have been taking advantage of it to pass more restrictive voting laws ever since.
So is this what our voting landscape will look like forever? Will some parts of the country be able to continue passing laws that limit the freedom to vote, or is there something to be done?
Mulji: There's a lot that states and localities can be doing to ensure that democratic rights and particularly people of color are protected going forward.
Leeper: Aseem says it comes down to states and local communities enacting policies that protect and expand the vote.
Mulji: Obviously, federal legislation is essential and that's the baseline and we need it, but state VRAs in particular are one tool that states can use to really fill the gaps where federal legislation either doesn't exist or has been pulled back or limited by the courts.
Leeper: VRAs are voting rights acts. Like we discussed before, the federal VRA continues to be chipped away at, but states can step in to pass their own Voting Rights Acts called state VRAs that expand instead of restrict the freedom to vote.
Mulji: So they are still relatively rare but growing. So far, I think we have a handful of states that have enacted state Voting Rights Acts. California enacted its own state Voting Right Act in 2002. Washington and Oregon followed in 2018 and 2019. Virginia passed a strong bill last year. And then New York passed most recently a state voting rights bill that is pretty comprehensive and quite expansive.
Leeper: These laws prevent changes to voting procedures that will deny people the freedom to vote based on their race or circumstance. To illustrate what local states can do, we're going to look at the details of one state VRA.
Mulji: So the New York Voting Rights Act, I think is probably one of the most comprehensive state Voting Rights Acts that have been passed thus far because it includes pretty much the entire gamut of voter protection provisions that you can have in state law.
Leeper: One of those is protecting voters from vote-denial policies.
Mulji: That is policies that are intended to make it harder for certain groups of people, often racial and ethnic minorities to even just access the ballot, register to vote, get their absentee ballots, remain on the registration rolls, all of the things that prevent you from even just casting your vote in the first place. And then it also protects against what are called vote dilution tactics, which are tactics that local governments in particular will enact, or even state governments will enact that allow people of color to cast a ballot, but ultimately make that ballot as worthless as it can be.
Leeper: The New York VRA banned these tactics at the local and state level. It also brought back the oversight that was taken away by the Supreme Court in the Shelby County decision.
Mulji: It imports the pre-clearance system that was gutted by the Supreme Court at the federal level. It replicates that system at the state level, which means that New York now has a designated body in the Attorney General's office that will be reviewing any change to election policies at the state or at the county and local level.
Leeper: Derek Perkinson works for the National Action Network, a civil rights organization that helped write the New York VRA. He says that voting rights in the US are closely linked to civil rights issues. Some of the solutions could be quick fixes like...
Derek Perkinson: We need to have voting as a holiday.
Leeper: As we've discussed, holding elections on a Tuesday decreases access to voting for many Americans. If we made election day a national holiday, voters wouldn't have to schedule time to vote around work or school, they could just focus on casting their ballot. But other solutions are more complex, and that's what was addressed in the New York Voting Rights Act. Derek says, "One thing established by the VRA is better data collection."
Perkinson: We have technology that will keep everything nice and neat and everything. So it's going to regulate public data maintained by the county and city Board of Elections and is going to establish New York voting and elections database in institute and maintain a statewide database of voting and election data.
Leeper: The goal here is to avoid things like voter roll purges that happen in some communities. Remember, this is a practice where voters who haven't voted in a few elections are deleted from the voter rolls without their knowledge, a practice that disproportionately impacts communities of color. Derek says, "The New York VRA also requires language assistance for voters for whom English is not their primary language, and..."
Perkinson: It's also going to act to penalize, and this is very important, voter deception and suppression.
Leeper: The New York VRA also puts into place legal protection for voters who want to speak up against any deliberate barriers to voting in their local communities. Citizens can report these practices without having to sue, which makes it easier to report wrongdoing. So state Voting Rights Acts are one tool for improving voter access after the Shelby County decision. Other changes we've talked about in previous episodes like universal vote-by-mail and restoring the right to vote to people with past felony convictions would bring more people into our democracy. Another policy that can make our democracy more equitable and give voters more choice at the ballot box is ranked-choice voting. Here's a scene from CLC explaining what that is.
Mulji: On a ranked-choice voting ballot, instead of just choosing the one candidate that you like or would want to win, you get to rank every candidate in order of preference. And that means you can really vote honestly for the person who you really want to win without thinking about whether they have the best shot. Best example I've seen is when you go to an ice cream shop and you're asked what flavor do you want. You might say, I want butter pecan, but if you don't have butter pecan, I'd like mint chip. And if you don't have mint chip then I guess I'll just settle for vanilla and that'll be fine.
Leeper: Using ranked-choice voting in American elections is pretty new, but it's growing fast. Maine and Alaska offer it statewide, as well as several cities throughout the country like New York and Salt Lake City. Aseem says, "If it was more common, it would change how we look at the process of voting."
Mulji: Ranked-choice voting allows voters similarly to express preferences about the alternative candidates that they might support if their candidate doesn't win, and this can have really important consequences for democracy. It's also been shown to reduce the amount of negative campaign tactics in an election because when voters are able to list more than one candidate, candidates recognize that they benefit when voters maybe rank them second versus third.
Leeper: Previously, we talked about the 2020 election and how more people voted than ever before.
Gilda Daniels: We saw in the 2020 election that approximately 65% of Americans actually turned out to vote, which was the highest percentage we had in a long time, and people are celebrating it. But that's not 90%, that's not 100%. But we're celebrating 65% because it has in the past been 57% or 55%.
Leeper: That's Gilda Daniels, a law professor at the University of Baltimore School of Law. She firmly served as a deputy chief in the Department of Justice, Civil Rights Division, Voting Section, in both the Clinton and Bush administrations, and is now a consultant to CLC. Gilda, like many voting rights advocates, saw the 2020 election as an example of what could be.
Daniels: So there was an increase in voter turnout, and you saw folk who were in power responded with laws that would make it harder to get to that 65% once again. The response should have been, oh, well, let's continue this so that we can continue to hear from the people and have a representative democracy. But the response was, no, we have to shut this down.
Leeper: However, the laws passed after the 2020 election that limit mail-in voting, restrict access to the polls, or penalize people for trying to get more people to vote are definitely disheartening. But Gilda says, "This pushback by some lawmakers isn't a reason to give up."
Daniels: African Americans have been in this country for 400 years, we've only been voting for 57. So we've seen this before and overcome it before and I tell people we have more tools now than we ever had. We got more lawyers, we got more elected officials than we ever had. So we have more than my grandmother had when she voted for the first time. So it's not a time to give up, it's a time to, as she certainly would say, press on. Just continue the fight. It's a fight to vote for the right to vote.
Leeper: She says that some of the ways that individuals, you, can make sure our voting system represents everyone is by paying attention to what is happening in your local communities.
Daniels: I always tell people to do four things, educate, legislate, litigate, participate. Educate themselves about the process, and educate themselves about who is actually running, who is your state legislature, who's your city council, who's on the school board. And then legislate, meaning be aware of legislation that's being proposed in your jurisdiction that can impact your right to vote. Litigate meaning there are organizations like Campaign Legal Center, like Advanced Project, NAACP, Legal Defense Fund, that list goes on. And then, finally, participate is what I ask everyone to do. And participating by volunteering and as well as working as a poll worker, finding those organizations in your communities as well as on the national level.
Leeper: We've talked a lot about how states have chipped away at the freedom to vote, but it doesn't have to be this way forever. People have been fighting for the freedom to vote since our country's beginning, and along the way, passionate advocates helped change things for the better, bringing us closer to a democracy that lives up to its ideals. Sometimes progress happens in big leaps like ratifying constitutional amendments or passing sweeping federal legislation. Other times it takes small steps like one state adopting their own state-level Voting Rights Act, or the joy one person feels when they finally get their right to vote back after a felony conviction. We can all play a role in making our democracy more accessible and accountable to the people it was formed to serve, us. Going forward, if we all keep working to advance change, whether in big leaps or small steps, we can make the promise of democracy real for us all.
Special thanks to Trevor Potter, Aseem Mulji, Derek Perkinson, and Gilda Daniels for appearing in this episode. You can find additional background information on the topics discussed in the show notes along with the full transcript of the show. Democracy Decoded is produced by LWC Studios for Campaign Legal Center, a nonpartisan non-profit organization which advances democracy through law at the federal, state, and local levels, fighting for every American's right to responsive government, and a fair opportunity to participate in and affect the democratic process. You can visit us on the web at campaignlegalcenter.org.
Democracy Decoded is hosted by me, Simone Leeper, legal counsel on the Redistricting team. Leading the production for Campaign Legal Center are Casey Atkins, multimedia strategist, and Mannal Haddad, senior communications manager for Voting Rights and Redistricting. This podcast episode was produced by Claire McInerney, edited by Paulina Velasco, and mixed by Florence Barrau-Adams. Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.