In his acceptance speech one year ago, President Barack Obama famously declared, in what appeared to be an unscripted moment, “We have to fix that.” He was referring to the egregiously long lines that marred the election experiences of voters around the country in 2012. Not isolated to one state or jurisdiction, long lines occurred in places as diverse as Maryland and Minnesota, South Carolina and Wisconsin, Florida and Texas.
Now, as millions of citizens are about to vote for everything from the New York City mayor to constitutional amendments in Texas, it is instructive to take stock of how elections have changed—for good and for ill—in the past year.
First, the good news: an encouraging number of states have taken steps to provide voters more access to the ballot box. This positive trend comes after state lawmakers around the country attempted a wave of restrictive voting measures—everything from requiring photo ID at the polls to cutbacks to early voting to curbing registration drives—in the lead-up to 2012.
Thankfully, many of those restrictive measures had been blocked or blunted by Election Day 2012 by voters, their advocates, and the U.S. Department of Justice.
Since then, state legislators introduced more bills to expand voting rights than to restrict them. At least 234 bills that would expand access to voting were introduced in 45 states, whereas 90 restrictive bills were introduced in 33 states. Reforms included efforts to modernize the voter registration system, largely through online options, increasing early voting opportunities, and easing restrictions on people with criminal convictions in their past.
Now for the bad news: some states are still trying to restrict voting rights. For example, while 10 states passed 13 bills to expand voting opportunities this year, there were still nine restrictive bills passed in eight states. To make matters worse, for the first time in almost 50 years, voters in some places will have to go the polls with fewer protections against racial discrimination.
In June, the U.S. Supreme Court overturned a key provision of the Voting Rights Act, a law many consider the crowning achievement of the civil rights era. Under Section 5 of the Act, jurisdictions with a history of discrimination must seek pre-approval of voting rule changes that could negatively affect minority voters.
This process, known as “preclearance,” blocks discriminatory election changes before they are implemented—and before they can harm voters. In Shelby County v. Holder, the Court invalidated Section 4 of the Voting Rights Act—the provision that determines which states and localities are subject to Section 5’s requirements. As a practical matter, this means Section 5 is inoperable until Congress enacts a new coverage formula.
States immediately pounced on the opportunity. The North Carolina legislative leadership acknowledged that the absence of Section 5 inspired the omnibus election bill that is the subject of no fewer than four lawsuits and has been called the most restrictive piece of voting legislation since 1965. There were few active legislatures in states formerly covered by Section 5 but we may be seeing the beginning of new and discriminatory barriers.
Congress has not passed a new coverage formula, nor enacted any legislation that would address the problems of long lines. The much-needed new coverage formula will require a groundswell of public pressure on our federal representatives.
The president, however, has taken a first step to help solve the long lines problem of 2012, appointing the Commission on Election Administration earlier this year.
The bipartisan commission is charged with improving the voting experience and promoting “the efficient administration of elections.” To bring election administration into the 21st century, the commission should promote ways to modernize our outdated voter registration system.
By managing voter rolls with updated technologies and tools, states can register more voters, save money, increase accuracy, and curb the potential for fraud. Already, 43 states, without fanfare or partisan wrangling, have implemented important modernization elements.
The commission is expected to submit its recommendations to the president in December. That may spur action in the states and in Congress. But all these efforts are meaningless if we continue to have large numbers of eligible voters staying home on Election Day.
Voting brings us together as Americans. Voting is the one time when we are all equal—whether young or old, rich or poor—and one time when we all have the same say. Make sure you join your family, friends, neighbors and fellow citizens at the voting booth on Tuesday.
Myrna Pérez is Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.
Myrna Perez