The U.S. is not a full-participation democracy, in part because voting is too difficult.

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From the Desk of Trevor Potter
Dear John,

Why is voting difficult for so many after nearly 250 years of experience with it in this country?

The first answer is that we started way behind the curve in 1789, with the assumption that only property-owning white males would be voting — and even they did not vote for senators or the presidency (state legislators did)

With painful fits and starts the country has expanded voter eligibility — poor white males, then all males born in this country, then women, then 18–21-year-olds. For Black Americans, the freedom to vote guaranteed by the 14^th Amendment was stolen through the enforcement of Jim Crow laws, and only restored piecemeal following the enactment of the 1965 Voting Rights Act.

The second answer is that even today, the freedom to vote is not guaranteed by the federal constitution, which is one reason why we have so many battles over state regulation of access to the ballot.

We’ve all seen Election Day footage of long lines at the polls with voters standing around for hours waiting to cast their ballot.

Holding Election Day on a Tuesday (a holdover from our agrarian past ([link removed]) ) clearly burdens those who cannot carve time out of their modern workday to vote in person, especially if their polling place is far away.

Voting by mail offers an easy and secure method for casting a ballot, yet this accommodation is not available in many states, or has new and burdensome requirements attached.

Those of us who work on democracy issues are very familiar with the difficulties imposed on some groups of voters by politicized ID laws, which have the practical effect of favoring some voters over others. A classic example would be not accepting student IDs ([link removed]) issued by state universities while accepting concealed weapons permits as valid for voting.

The list of barriers to the ballot I’ve laid out is far from complete. The existence of such barriers reveals the ongoing battle between those who would make voting in our nation easier and those who support unreasonable (at times unconstitutional) restrictions on the franchise.

Voting is foundational to our modern democracy, on par with free speech and freedom of assembly. It’s one of the most important tools available to settle disputes peacefully over how the country ought to be governed. Voting can also be viewed as an entry-level opportunity for civic engagement. There are many other ways citizens can make an impact on their government, but voting is often the starting point.

For all of these reasons, it seems rational to suggest that making it easier to exercise this fundamental freedom should be a nonpartisan priority, both locally and nationally.

One of Campaign Legal Center’s (CLC) core principles is that our democracy works best when the political process is accessible to every American. This tenet arises in part from acknowledging the history of voting rights in this country. For a long time, that history produced a government that was far from representative of the governed.

While it is true that the freedom to vote has been expanded over time, we have only recently begun to realize the true potential for enabling greater levels of participation.

Indeed, there has been just one election in our history — the 2020 election — where the ability to cast a ballot from your kitchen table was made widely available. Turnout in that election reached 66%, the highest since 1908 ([link removed]) , and both major parties saw their supporters turn out in record numbers. Widespread voting by mail was a new thing for many states, and the election was, according to international observers ([link removed]) and studies ([link removed]) after the fact, found to be well-managed and accurate.

I believe the failure to adopt easier registration and voting methods on a wider scale stems in part from a conflict between those who believe every eligible citizen should have an equal opportunity to vote and those who think our democracy is better off when voting is viewed more as a privilege to be obtained by surmounting barriers than a right.

Another way of understanding this conflict is detailed by the preeminent professor of election law Rick Hasen in his forthcoming book “A Real Right to Vote,” ([link removed]) which calls for passing a new constitutional amendment that enshrines an affirmative right to vote for all. I will be discussing this proposed amendment with professor Hasen during a LIVE Campaign Legal Conversation on February 29. ([link removed])

Professor Hasen describes the two sides of the debate: The “equal power conception” envisions the right to vote as something that should be equally shared by all eligible voters. The “best choice conception” suggests that some have a more valid claim to voting than others.

Early American history provides stark examples of “best choice” thinking. In more recent years, the evidence is a little more subtle, showing up in laws requiring a physical address to vote by mail (negatively impacting many Native American voters), or making it nearly impossible for citizens with a felony conviction to regain their freedom to vote.

This entrenched resistance to universal enfranchisement, combined with the more recent spreading of baseless voter fraud conspiracies, creates an atmosphere in many states where ballot access is being restricted as opposed to expanded.

It does not have to be this way. Our elections are secure thanks to technological advances and widespread adoption of best practices for election administration. Policies like no-excuse absentee voting and automatic voter registration can be adopted by every state in the nation without sacrificing election integrity. Almost 40 states offer no-excuse absentee voting ([link removed]) or conduct their elections entirely by mail. More than 20 states have automatic voter registration ([link removed]) .

Further, scholars who have examined our elections find no evidence ([link removed]) to support the notion that higher turnout benefits one party over the other, the obvious subtext behind some efforts to restrict ballot access.

Given our sordid history of unjustly denying huge swaths of Americans the freedom to vote, we should move as far in the opposite direction as possible. A smooth and secure glide path to voting access for all is an essential step for any nation that declares itself to be a democracy.
Sincerely,

Trevor Potter
President, Campaign Legal Center


P.S. - News about CLC: Our Senior Vice President and Legal Director Adav Noti ([link removed]) is CLC’s new Executive Director. Adav will lead CLC’s programmatic activity and operations during this pivotal election year. I will continue to serve as CLC President, and Paul Smith will continue to serve as Senior Vice President.

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