Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.
In the 2008 movie “Swing Vote,” the presidential election comes down to a single vote in New Mexico. A character played by Kevin Costner is given the chance to vote again because his voting machine had malfunctioned the first time. His new vote will decide the presidency.
But that’s Hollywood. A single vote would not determine an election of such importance in real life. Right?
Wrong. We are seeing a real-life version of “Swing Vote” in Virginia right now, showing the true importance of every vote. A single vote has made the difference in a Virginia House of Delegates race that may determine if Republicans remain in control of the chamber. Yet turnout in Virginia’s 2017 election was less than 50%. We should not accept that level of participation as acceptable.
After the initial count on election night in House District 94, which includes Newport News, Republican incumbent David Yancey held a 10-vote lead over his Democratic challenger Shelly Simonds, out of over 23,000 votes cast. During the recount, Simonds gained 11 votes, putting her exactly one vote on top. Yet the next day a three-judge panel determined that the recount should have included one additional ballot that indicated a vote for Yancey. An image of the ballot in question shows bubbles filled in for both candidates, with a line through the bubble for Simonds. Reasonable minds may disagree as to whether the intent of this voter to select Yancey was clear. But this much is certainly clear: the single vote has made all the difference.
Including this ballot tied the election results. On Election Day, 675 voters had selected the Libertarian nominee, while 22 voters cast a write-in ballot. It should go without saying that any one of these votes instead going to the Democratic or Republican candidate would have changed the outcome.
Under state law, the tied election will be determined “by lot,” such as by a coin flip or drawing straws. If Republican Yancey keeps his seat, then Republicans will likely enjoy a 51-49 majority in the House, although there is still at least one election making its way through the courts. If the Democrat Simonds wins, then the Virginia House will be tied 50-50, requiring a lot more compromise and likely having significant policy implications.
Much more concerning than this single vote, however, is that over half of Virginia’s eligible voters stayed home on Election Day. Turnout statewide for the election, which included a hotly contested governor’s race, was 47.6%. According to the Virginia election’s website, there are about 55,000 voters in this particular House district, and yet just under 24,000 of them cast a ballot. That means that over 30,000 voters stayed home. Perhaps they did not like either of the major party candidates. Perhaps they are apathetic about our election system. Perhaps laws that can suppress turnout, like Virginia’s voter ID law, dissuaded some valid voters from even bothering.
Yet pundits were celebrating this turnout level, noting that it was the highest participation rate in a Virginia gubernatorial election in 20 years. True, voters seemed more energized in this election. And that is good. But why should we celebrate turnout where half of the voters do not turn out?
Instead, we need to focus on innovations that can bring as many eligible voters as possible into our democratic process. There are many ways to do so. Virginia itself enfranchised thousands of new voters when Gov. Terry McAuliffe restored voting rights to over 200,000 felons in 2016. Other policy ideas have proven successful in states and localities around the country. Oregon adopted automatic voter registration, whereby the state takes the responsibility of adding voters to its election database using information it already has. The result was almost 100,000 newly registered people voting in the 2016 election. The bipartisan idea has spread to both red states like West Virginia and blue states like Vermont.
Similarly, election officials in some localities have adopted vote-by-mail or vote centers, increasing the convenience factor of voting. Vote centers are particularly innovative: instead of having to vote at a precinct based on your address, a voter can go to any vote center in the county and vote. The vote centers are linked through an encrypted, secure line, ensuring the integrity of the system. They started in Larimer County, Colorado, based on the ideas of the County Clerk there; voters liked it so much that it has spread to other places. Similarly, disabled voters typically face significant hurdles at the polls, resulting in lower turnout rates than the general population, but election officials are working to ease these burdens, such as through more accessible voting machines.
Small measures like these can have a big impact. Positive voting enhancements are possible. But we won’t achieve them if we celebrate less than half of the electorate voting as “strong” turnout. Instead, we must demand that our lawmakers and election officials create ways to making voting easier, more convenient, and more accessible to all.
Imagine if one extra voter had decided to vote in this election – if one person hadn’t been dissuaded by the hassles of Virginia’s voter ID law, missed the registration deadline, or failed to show up because they felt like Virginia’s election process just wasn’t convenient enough?
Let’s not accept turnout below 50%. Let’s work instead to strive for as high turnout as possible. One vote – or thousands of votes – can often make a difference.