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States of Dysfunction: Voting Issues from Election Day 2013

The relentless onslaught of rule changes, voting barriers, and campaign cash barely slowed after the 2012 presidential election. And yesterday, we got a chance to see some of the latest casualties of the voting war.

November 6, 2013

In the past, odd year elections were a time for a breather in the elections war, a brief respite before another round of high-stakes, high-pressure, high-money federal elections. To be sure, these local contests with their low turnout and technocratic overtones have never been exempt from the modern politicization of voting. But years ago, the administrative mischief in off-year elections seemed to be lower.

No longer. The relentless onslaught of rule changes, voting barriers, and campaign cash barely slowed after the 2012 presidential election. And yesterday, we got a chance to see some of the latest casualties of the voting war.

There were hundreds of mayoral elections and two gubernatorial races, not to mention a plethora of state constitutional amendments, referenda, and bond initiatives. New mayors were elected everywhere from Woonsocket, Rhode Island, to Midland, Texas, Bountiful, Utah, to Urbandale, Iowa. All told, more than 300 cities, with cumulative populations of 35.7 million, elected mayors. Virginia chose Democrat Terry McAuliffe as governor and New Jersey re-elected GOP Gov. Chris Christie. California and Texas voters cast ballots on a series of state constitutional amendments.

Three state elections warranted special attention, each a particular exemplar of the latest in voting dysfunction. We will be following the data and the stories after yesterday’s election that these three states raise. Stay tuned.

But for now, here is a quick primer of what we will be watching as the data rolls in.

Texas: Voter Identification. In addition to voting on nine state constitutional amendments, eight Lone Star mayoralties were up for election, including Houston. For the first time, Texans voted under the state’s new restrictive voter identification regimen. Rejected last year by a federal court under Section 5 of the Voting Rights Act, it roared back into life this year when the Supreme Court hobbled the provision in Shelby County v. Holder.

Early reports under the new system are mixed, but discouraging. Last week, the former Speaker of the U.S. House of Representatives, Jim Wright, was denied voter identification. The 90-year-old Wright’s driver’s license had expired, so he tried to obtain a state-issued voter ID card. But he did not have all the necessary paper work. (Wright was able to overcome the rejection and obtain an ID, but others, lacking the connections and means of a former Speaker of the House, are more likely to fail).

Meanwhile, Texas’s two presumptive opponents in next year’s governor’s race, Democratic state legislator Wendy Davis and state Attorney General Greg Abbott, were caught in the law’s grasp when their identification failed to perfectly match their voter registration. Both voted early but had to sign affidavits swearing to their identities.

Married women appear to be bearing the brunt of the new law. At least one in seven Dallas County early voters were required to sign affidavits due to name match issues. Not only do affidavit voters have to surmount additional barriers in order to cast a ballot, but who knows how many were erroneously turned away.  Moreover, the requirement likely stretched scarce election resources.

Finally, no one knows how many people simply didn’t show up at the polls because of the cumbersome identification process. An estimated 600,000 to 800,000 registered Texas voters lack the necessary identification. Unfortunately, efforts to reach out to this group of voters have yielded meager results thus far.

New York: Campaign Finance and Ballot Design. With a mayoral and other city contests plus six constitutional amendments on the ballot, New York City residents might have wanted to bring a magnifying glass to the polls yesterday. The ballots were in six-point type. Not only does the type size border on unreadable, but the overall ballot design verges on comically inept. It would be funny except voters in the nation’s most populous city used this ballot to select their new mayor.

The Brennan Center has consistently pointed out that bad ballot design has led to tens to hundreds of thousands of lost or miscast votes. But the New York City Board of Elections, branded an “ongoing disgrace” by a New York Times editorial writer, has rigidly refused to modify its ballot design. Yesterday’s ballot design may be the finest example of the Board’s lousy handiwork yet.

A court decision a few weeks before the election could also have wide-ranging implications, although it did not immediately impact the mayoral race.

Last month, in New York Progress and Protection PAC v. Walsh, the U.S. Court of Appeals for the Second Circuit Court struck down rules limiting the amount of money an individual can contribute to independent political expenditure organizations. In the case at hand, the court was deciding whether an Alabama businessman could give $200,000 to a PAC supporting the Republican mayoral candidate.

The court’s decision opened the door to unlimited individual spending in New York elections. The effects are likely to be felt in 2014 when New Yorkers elect a governor and their state Senate. The money will start flowing soon. (It’s worth noting that the same Alabama businessman at the center of the New York case also is the moving force behind the pending Supreme Court case challenging aggregate individual donation limits in federal races, Shaun McCutcheon.

Virginia: Voter Purges. One of the many problems with the way elections are run is last-minute rule changes. Virginia was this year’s poster child for rushed election administration changes. In late August, Virginia election boards were directed to comb through voter registration files with a view to purging up to 57,000 voters who showed up on a database of voters registered in more than one state. Many local officials found the list was full of errors. After about two weeks of legal skirmishing last month, the purge went ahead when a federal district court judge denied a temporary restraining order to halt the effort.

The Virginia voter purge has been characterized by many of the least admirable elements of voting administration. It was implemented late. Voters who were struck off the rolls were given no notice. The data used to target voters was of dubious quality. Voter registrars were given minimal guidance on how to strike voters. And the entire process lacked transparency. (By contrast, there was a positive development earlier this year when the state’s Republican governor, who cannot run for re-election, issued an executive order restoring voting rights to non-violent  people with criminal convictions, mitigating one of the nation’s most restrictive voting regimes for ex-offenders.)

Texas, New York, and Virginia are just examples of much of what is wrong in the way America administers its elections. In Texas, hyper partisanship is placing expensive barriers in the way of voters for no demonstrable benefit. In New York, the persistent failure to professionalize elections administration continues to have a dispiriting effect on voters. Meanwhile in Virginia, a reasonable goal, cleaning up voter rolls, was rushed and fraught with partisanship.

We will be back in touch with an update on what we learn, after yesterday’s returns are counted and digested.  And since we’re barely in the 2014 election cycle, more shenanigans are sure to come.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Victoria Bassetti is a Brennan Center contributor. She is the author of “Electoral Dysfunction: A Survival Manual for American Voters,” published by The New Press in 2012.