Joshua A. Douglas: Voting rights advocates should speak out against Trump voter fraud claims
For the long term, the best strategy is to support expanding vote at local level, he says
Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law and voting rights. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.
As recently as Thursday’s press conference, President Donald Trump continued to peddle falsehoods about his electoral win. It came after a weekend when one of his top aides, Stephen Miller, brazenly claimed that Democrats sent busloads of voters from Massachusetts into New Hampshire, preventing Trump and fellow Republican Kelly Ayotte from winning the state.
Yet beyond just rebutting these lies with actual evidence, there is more that the voting rights community can do to ensure elections remain free and open for everyone: Focus on improving voting rights at the local level. Engage in a grass-roots movement to expand the electorate and make voting easier and more convenient.
The national scene for significant election law reform is bleak. The Republican-controlled Congress is unlikely to pass a revised Voting Rights Act or to enact new campaign finance measures.
The Trump administration, with Attorney General Jeff Sessions leading the Department of Justice, is unlikely to make voting rights protection and expansion a priority. Given Sessions’ record prosecuting voter fraud as a US attorney in Alabama, he may cause significant harm by promoting measures that make it harder to vote.
The Supreme Court, with Trump nominee Judge Neil Gorsuch in line to assume the seat left by Antonin Scalia, will likely continue its conservative rulings that unduly protect states in setting voting rules.
And most state legislatures are Republican-controlled, meaning that reform-minded advocates probably should not rely on them either to enact significant voting rights expansions.
Where, then, can advocates look? Local governments. Although small in scope, local election rules can have a significant impact. Local laws can normalize election practices, eventually easing their path at the statewide or national level.
Take Ranked Choice Voting as one example. In this system, voters rank-order the candidates by preference, indicating their first, second and third choices.
If a voter’s first choice receives the fewest votes, then their second choice vote will count instead. The process is repeated, eliminating the last place candidate and counting the second-choice votes of his or her supporters, until a candidate has gained at least 50% of the votes. This system provides a better sense of the electorate’s overall preferences.
A few cities in California have adopted Ranked Choice Voting. San Francisco has used the process for its elections since 2004. The voting method provides more choices for voters and ensures that a vote is never “wasted.”
This year the idea has spread to other areas. Both Maine, for its statewide elections, and Benton County, Oregon, for its local elections enacted Ranked Choice Voting. Election law reform has succeeded by focusing first on the local level.
Expanding the electorate, such as by lowering the voting age to 16, also can begin through local laws. A couple of Maryland cities already allow those 16 and older to vote in local elections. In November, voters in Berkeley, California, enfranchised 16- and 17-year-olds for their own school board elections. A measure to lower the voting age to 16 for all local elections in San Francisco lost by a 52%-48% margin, which suggests the idea is close to passing in the future.
Voting is habit forming, so engaging voters at an earlier age can increase overall participation in the future. One study found that someone who has voted is about 10% more likely to vote in the next election compared with someone who did not participate previously. Increased turnout, especially among younger voters, is surely a good thing for our democracy.
Campaign finance reforms, unlikely to pass in Congress or most state legislatures, are also possible through local laws. In this past election, voters in Multnomah County, Oregon, passed an “honest elections” platform that limits campaign contributions and increases transparency on campaign spending in local races. Howard County, Maryland, voters approved a public financing system for local elections. And Missouri voters amended their state constitution to impose campaign finance limitations. These measures can serve as catalysts for reform in other places.
Local jurisdictions also can adopt Election Day reforms that improve the administration of elections. Doña Ana County, New Mexico, for instance, uses Voting Convenience Centers instead of precinct-based voting. Voters need not go to the precinct near their home but instead may visit any of the convenience centers in the county. Turnout in 2016 elections was subsequently higher than ever. Voting rights advocates should encourage other localities to follow Doña Ana County’s example in how to make voting more convenient.
Of course, setbacks are always possible, even at the state or local level. For instance, Missouri voters recently approved a constitutional amendment allowing the state to enact a strict photo ID requirement for voting. This rule will harm voters who do not have the required ID, with little corresponding benefit to the integrity of elections given the lack of in-person voter fraud.
Voting cutbacks should simply cause those interested in protecting the right to vote to work harder at enacting local measures expanding access to the franchise. The focus has not yet been on local election laws, but it should be.
Moreover, a local push need not be at the expense of seeking bipartisan support for common-sense measures on voting rights, such as expanding online voter registration or updating voting machines.
But to move forward over the next few years, advocates can begin at the local level. Small victories can lead to bigger wins, making it easier to spread rules that might face initial resistance from state or national politicians.
Localities can be “test tubes of democracy,” showing how voting rights reforms can succeed at the local level. They can provide an opportunity to fight Donald Trump, Jeff Sessions and their likely attempts to make it harder to participate in our democracy.