Power Grab or Not, Expanding Voting Rights is in the Interest of the People, and Democracy

By Mackenzie Walz

Associate Editor, Vol. 24

Within days of regaining control of the House of Representatives after an invigorating midterm election, several Democrats vowed to focus their legislative efforts on restoring ethics and transparency in our democratic institutions.[1] As promised, the first bill introduced in the 116^th Congress was an ethics reform package titled “For the People.” Also known as HR 1, this act is a sweeping bill aimed at improving three specific aspects of the voting franchise: campaign finance, election security, and voting rights.[2]

While Democrats have touted HR 1 as promoting the public interest, Republicans have objected, finding it unnecessary and in furtherance of a partisan agenda.[3] J Christian Adams, president and general counsel of the Public Interest Legal Foundation who served on President Trump’s voter-fraud commission, testified to the House Judiciary Committee that the revisions HR 1 proposes are unnecessary: it has never been easier to vote and it is even difficult to avoid opportunities to register to vote.[4] Senate Majority Leader Mitch McConnell went even further in his opposition, characterizing the bill as the “Democrat Politician Protection Act.”[5] As one of the most outspoken critics of HR 1, McConnell penned an op-ed for The Washington Post, arguing HR 1 is an “attempt to change the rules of American politics to benefit one party.”[6] While McConnell has taken issue with some provisions more than others, he has continuously expressed that he has no intention of introducing any part of HR 1 in the Senate.[7]

Whether or not every provision of HR 1 is necessary or the Act was motivated by partisan interests, studies suggest many provisions of HR 1, individually and collectively, would increase participation among minority voters.[8] There are several structural barriers throughout the political process that impede voter turnout, disproportionately among minority voters: felon disenfranchisement, conducting elections on a Tuesday, arbitrary registration deadlines, and a lack of early voting options. HR 1 seeks to subdue or eliminate these structural barriers, which would increase opportunities for minority participation and, subsequently, increase overall voter turnout.

Felon Enfranchisement

The criminal justice system disproportionately affects people of color: the rate at which African Americans are incarcerated is five times higher than that of whites. [9] Because of this disparity, state voting laws that disenfranchise incarcerated or formerly incarcerated individuals disproportionately affect people of color.[10]

Several states have taken steps to ease felon disenfranchisement policies. Recently, in the November 2018 election, Florida voters passed a citizen-based ballot initiative to restore voting rights to individuals that had felony convictions, upon the completion of their sentences.[11]

Congress’ proposal to follow these state initiatives of easing felon disenfranchisement policies would likely increase minority voter turnout, given the disparate impact felon disenfranchisement policies have on minority voters.

Election Day as a Federal Holiday

The Constitution requires that the election of the president and vice president occur on the Tuesday after the first Monday in November. The rationale behind this date was to ensure that voters in rural areas could attend religious services on Sunday and still have time to travel to the polls, as well as to ensure the election would not interfere with seasonal farming.[12] While these rationales are no longer relevant, the Constitutional requirement remains intact and hinders the ability of many Americans to cast a ballot on election day.[13]

In the 2016 election, 19 million registered voters did not vote.[14] Studies suggest these registered voters who did not turn out at the polls were more likely to be non-white.[15] Bradfield and Johnson acknowledged this racial disparity when analyzing the potential effects declaring election day a federal holiday might have on the US voting system. They reviewed the reasons for lack of turnout and whether the proposed solution of a federal holiday would effectively increase turnout in light of these rationales. They concluded that making election day a federal holiday would be effective and would “substantially impact the percentage of registered black voters that make it to the polls.”[16]

Same Day Registration and Early Voting

In 2014, arbitrary voter registration deadlines prevented 4.1 million Americans from registering to vote. Same-day registration (SDR) has been proven to increase overall voter registration and turnout, as well as registration and turnout among minority groups.[17] Specifically, studies show that SDR could boost African American and Latino participation by 7.5% and 11% respectively.[18]

While same-day registration increases participation, an increase in participation also results in longer lines on election day. In part to combat these long lines, many states have adopted in-person early voting. Early voting is popular amongst many voters, but particularly those from minority communities.[19] When SDR and early voting are used together, participation can increase by about 4.2 to 11 percent.[20]

By adopting both SDR and early voting, not only will the number of registered voters increase, but the opportunities for these registered voters to actually cast a ballot will increase as well. This combination is known to increase overall voter turnout, but, more specifically, it will likely improve voter turnout among minority voters.

Research suggests that several of the voting rights reforms proposed by HR 1 will break down barriers and enhance the opportunity of Americans, particularly minority citizens, to cast a ballot. The citizens that will benefit from these reforms may elect to vote for Democrats over Republicans, therefore benefiting the Democratic party. But that’s not a sufficient reason for Republicans in Congress to ignore HR 1. Voting is a fundamental right. Congress should not deny citizens the opportunity to more easily and fairly exercise that fundamental right out of fear that this increased participation will benefit one political party over another.

[1] Alana Abramson, Democrats Just Won the House. Here’s What They Plan to Do, Time (Nov. 7, 2018), http://time.com/5442973/democrats-won-house-majority-plans/.

[2] Ella Nilsen, House Democrats Officially Unveil their First Bill in the Majority: A Sweeping Anti-Corruption Proposal, Vox (Jan. 4 2019, 7:14 AM), https://www.vox.com/policy-and-politics/2018/11/30/18118158/house-democrats-anti-corruption-bill-hr-1-pelosi; Amy Sherman, House Democrats and HR 1: Voting Rights Expansion or Federal Power Grab?, POLITIFACT (Feb. 8, 2019, 8:00 AM), https://www.politifact.com/truth-o-meter/article/2019/feb/08/democrats-seek-expand-voting-access-2020-election-/.

[3] Zach Montellaro, House Democrats Forge Ahead on Electoral Reform Bill, POLITICO (Feb. 26, 2019, 7:00 PM), https://www.politico.com/story/2019/02/26/democrats-electoral-reform-bill-1188437.

[4] Sherman, supra note 2; For the People Act: Testimony of J. Christian Adams Before the United States House Judiciary Committee, 116th Cong. (2019), available at https://publicinterestlegal.org/files/Testimony-of-J-Christian-Adams-to-House-Judiciary-Committee-Jan-29-2019.pdf.

[5] Mitch McConnell, Mitch McConnell: Behold the Democrat Politician Protection Act, The Washington Post, (Jan. 17, 2019), https://www.washingtonpost.com/opinions/call-hr-1-what-it-is-the-democrat-politician-protection-act/2019/01/17/dcc957be-19cb-11e9-9ebf-c5fed1b7a081_story.html?utm_term=.2194433a468d.

[6] Id.

[7] In response to McConnell’s op-ed, Representative Sarbanes stated: “[t]he fact he’s attacking the whole package and every piece of it shows he has absolutely no interest in any kind of reform…” Nilsen, supra note 2; see also Danielle Root and Liz Kennedy, Increasing Voter Participation in America, Center for American Progress (July 11, 2018, 12:01 AM),  https://www.americanprogress.org/issues/democracy/reports/2018/07/11/453319/increasing-voter-participation-america/.

[8] Lee Drutman, House Democrats’ Big Democracy Reform Package is Good Policy, and Smart Politics, Vox (Dec. 10, 2018, 5:40 PM), https://www.vox.com/polyarchy/2018/12/10/18134994/house-democrats-democracy-reform-package.

[9] Jan C. Timm, Millions of Ex-Cons Lost Their Right to Vote. Now They Might Get it Back, NBC News (Jan. 28, 2018, 4:47 AM), https://www.nbcnews.com/politics/politics-news/felony-disenfranchisement-bars-millions-voting-might-be-about-change-n841566.

[10] Id.

[11] Id.

[12] Abigail Hess, Democrats Want to Make Election Day a National Holiday – Here’s Why, CNBC (Feb. 5, 2019, 4:07 PM), https://www.cnbc.com/2019/02/05/democrats-want-to-make-election-day-a-national-holidayheres-why.html (declaring that, today, only 2% of the U.S. labor force is employed in agriculture, that figure was 69% in in 1840).

[13] Drew Desilver, Weekday Elections Set the U.S. Apart From Many Other Advanced Democracies, Pew Research Center (Nov. 6, 2018), http://www.pewresearch.org/fact-tank/2018/11/06/weekday-elections-set-the-u-s-apart-from-many-other-advanced-democracies/.

[14] Alia E. Dastagir, What if Election Day Were a Holiday, USA Today (Feb. 1, 2019, 4:57 PM), https://www.usatoday.com/story/news/investigations/2019/02/01/election-day-federal-holiday-mcconnell-democracy-voter-turnout-democrats-republicans-voting-rights/2736634002/.

[15] Id.

[16] Caitlyn Bradfield and Paul Johnson, The Effect of Making Election Day a Holiday An Original Survey and a Case Study of French Presidential Elections Applied to the U.S. Voting System, 18-19 (Brigham Young University, Working Paper, 2016).

[17] Maine, Wisconsin, and Colorado all allow same day registration and had the highest voter participation in the 2014 midterm election. Root and Kennedy, supra note 6.

[18] Id.

[19] Id.

[20] Id.