Despite outrage, new state election laws don’t mean the end of democracy – but there are threats
The sky is falling – it’s what can you believe about a wave of new election laws introduced, largely by the GOP, in state houses across the country. Alternatively, you may think that these laws are absolutely crucial for ensure the integrity of the elections. Naomi Schalit, political editor-in-chief of The Conversation, interviewed an electoral law expert Derek muller on how he sees these new laws. Muller provides a surprisingly optimistic interpretation of what is going on. The transcript has been edited for length and clarity.
One group said that “Americans’ access to the vote is in unprecedented danger”. What do you think?
I wouldn’t say that. These electoral bills slightly increase the difficulty for some voters in narrow down some of the optionswhether it is a postal vote or an early vote. But many of these bills expand voting possibilities, and many of them are tinkering on the sidelines of expansions during the COVID pandemic in 2020.
In some circumstances voters are no worse off than in 2018, and in some circumstances they are better off. So while there is a lot of passionate rhetoric, I would say the changes to election law so far have been quite modest.
So if you compare the new laws to what they were before these pandemic-era expansions, isn’t that so dramatic?
In many states, the vote in 2022 and 2024 will not be much different from the vote in 2016. In some cases there are bigger changes, but often these are marginal things that are not obvious to the big one. majority of voters.
Critics say these laws make voting more difficult. Do you see any evidence of this?
It depends on how we define “more difficult”. choose a law in Iowa. You can request postal ballots up to 10 or 11 days before the election, and now it’s until 15 days before the election. Is it harder? You can still show up and vote on polling day, you can always vote earlier. It’s just that the window of opportunity to request a postal vote has narrowed.
On the other hand, does it really discourage many voters or prevent them from voting? I think these are the open empirical questions that will need to be asked in the future.
Anything that limits or constrains voting days where they existed before makes things slightly more difficult. But the question is how big the marginal cost is.
Do these laws have measurable effects on participation?
I’m not a political scientist, so I pay attention to these kinds of questions. But a lot of empirical literature is quite mixed. There is evidence that certain types of voter identification laws reduce turnout by a point or two. Others suggest that they have no noticeable impact on participation.
Attorney General Merrick Garland said the Justice Department to scrutinize wave of new laws and take action in the event of a violation of federal law. What does it mean that the Attorney General is saying this?
The Attorney General can investigate and review these laws. It is mainly the the power of the Attorney General under the Voting Rights Act, to think about initiating claims alleging that the political process is not also open to participation on the basis of race.
But looking at the laws is very different from bringing a lawsuit, and starting a lawsuit is very different from a court that agrees that the law has this effect. To complicate matters, the Supreme Court is considering a case on how the voting rights law should be interpreted – Brnovich v. Democratic National Committee. The court might in fact make it more difficult for the Department of Justice to bring forward these claims in the future. But there is no doubt that the department responsible for investigating what states are doing will force lawmakers to think about how to tailor the laws so as not to subject them to the wrath of the department.
Do we know if these laws affect election results in terms of partisan politics? Criticism is that “Republicans are putting in place legislation that will help them win the election.”
A question is whether he even affects participation in the first place. Then the next question is, even if it affects the turnout, does it benefit one political party rather than another?
So it’s the political parties that are fighting for that, whether or not it actually has the effects people think.
Do actions like this really backfire on people who feel targeted?
Without a doubt, the actions in North Carolina and Georgia in recent years highly mobilized Democratic voters and voters of color to turn out to be a kind of backlash. There were important Democratic victories in North Carolina and Georgia shortly after controversies over electoral laws surfaced. How to measure this backlash is another matter of political science, but it remains a viable tool for those who oppose the laws to simply rally, withdraw the vote, and elect their favorite candidates.
How do these laws conform to the general democratic standard that anyone who is eligible can vote?
We have vastly expanded voting possibilities in recent decades. Early voting was virtually non-existent 20 years ago, postal voting without excuse is now the default rule in many states, with several states sending a ballot to every eligible voter.
There are advantages to having so many opportunities, but these have costs: the systems they create are sprawling, they are sometimes difficult to handle, offering many more opportunities for things to go wrong or for people to be skeptical of the outcome. And extending an election over six or eight weeks means that we all vote with different types of information at the start of an election season versus at the end.
In some of these laws, state legislatures voter turnout increased – although I think the public is not necessarily already aware of the involvement of supporters in the administration of the elections. Is this a concern?
Most of our elections are run by partisan officials. Secretaries of State have Republican or Democratic affiliation, and their role in certifying election results has generally been a pro forma task.
At the same time, especially before the election, changes were made by county or state officials, things that executive officials were doing, which were not necessarily what the legislature had expressly intended. in non-emergency situations, which caused a lot of friction between the legislator and these officials.
Thus, some of the laws proposed or enacted attempt to restrict the discretion of local authorities. In georgia, the legislature will choose one of the members of the board of elections to certify the elections, rather than allowing the secretary of state to sit on that board. These adjustments occurring in states reduce the discretion available to election officials, or allow the legislature to have a say – not a total say – in this electoral process.
Does the legislature have “some say” a threat to the integrity of the elections?
It appears that this would increase the threat. For the most part, we’ve seen election administrators be professionals who see it as their full-time job, who see all the inner workings, day-to-day, in the two years leading up to an election and know what’s going on. Unlike the legislature, which might view something – after the fact, or when its attention is drawn in other directions – as questionable and wanting to revisit what happened. So there is this concern.
Now, if the legislature wants to pick its own representative to sit on a board of directors along with several other people and that isn’t going to overwhelm the board, it might not be a big deal. But undoubtedly, it increases the risk that the lawmaker will choose to interfere as a political branch, in a different way from election officials who – despite their partisan affiliation – often rise above it.
I have worked in numerous elections as an election official in several states and counties. And I had extensive training before doing this – there is a two-party group overseeing the process and we all take our jobs very seriously. We want to make sure that eligible voters participate, that we can make sure only eligible voters vote, that we count everything carefully at the end of the night.
Poll observers may not have this training, may be disruptive, may not know what is going on, or have a full context of what is going on. There is an increased risk from poll watchers, if they are already skeptical that constituency election officials are doing their job properly, it starts to undermine some of the confidence in the electoral process.
You want campaigns to be sure that the election is running smoothly and correctly, and that there should be opportunities to observe and make sure there are no irregularities. But given the rarity of irregularities that actually occur in the United States, the increase in power or the number of poll observers could have unintended consequences, in particular friction at the ballot box in future elections.
Do any of these laws apply to you as an electoral scholar?
I’m concerned about the changes that seem over appease the losers of 2020 rather than choosing the best laws to administer elections in the future. This has prompted state lawmakers to be responsive. I am not a fan of reactive laws in this sense.
It worries me that a candidate loses an election, and many of his supporters question the legitimacy of the election itself. I don’t know if these laws, or really any laws, will ever restore public confidence in elections. If it’s just that the loser doesn’t want to believe in the legitimacy of the result, obviously when the candidate himself undermines those results, that’s a much more serious concern.
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