Democracy Blog Essay

Democracy Reform, One Ballot at a Time

The way our democracy operates is on the ballot this November. Voters do not just elect people to public office; they can also dictate the rules for elections through ballot initiatives in many states. From creating independent redistricting commissions to adopting campaign finance measures to expanding voter eligibility and changing the way we vote, voters in states and localities may fundamentally reshape our electoral processes. These efforts follow similar activity 2016, when several localities enacted new rules to enhance their democratic processes. These positive measures provide a path forward in light of a conservative U.S. Supreme Court that has cabined voting rights and opened the door to more money in our campaigns. Passing these reforms will go a long way toward improving our system in a proactive manner. If faced with a challenge to one of these positive expansions, the Court should defer to the voters’ preferences.

In a forthcoming book, Vote for US: How to Take Back Our Elections and Change the Future of Voting, I chronicle the ongoing fight for positive voting reforms, highlighting the democracy champions who are on the ground in communities all over the country and are  engaged in a grassroots effort to take back our democracy. Vote for US tells the stories of these amazing individuals, providing inspiration and ideas on how to achieve meaningful change in today’s harried political climate. Here, I want to highlight the efforts underway this November as well as sketch out why the reforms should pass constitutional muster if challenged in court.

Take the problem of redistricting. In most states, politicians themselves draw the lines every ten years, leading to unfairly drawn districts that entrench the current party in power. This is a bipartisan problem: Republicans in Wisconsin and Democrats in Maryland, to give just two examples, both draw lines to help their party in future elections. This results in not only protracted litigation, but also congressional delegations and state legislatures that do not truly reflect the will of the people.

But this November voters in four states—Colorado, Michigan, Missouri, and Utah— can ameliorate the problem by enacting independent redistricting commissions. This activity follows Ohio voters passing an initiative in May 2018 to create their own commission. These states would join a handful of others—Alaska, Arizona, California, Idaho, Montana, and Washington—that take the process of redistricting away from elected politicians. Some localities also use independent redistricting commissions to draw local lines, such as for city council. To be sure, independent redistricting commissions cannot overcome all consideration of politics in crafting legislative lines. Studies are also mixed as to whether independent redistricting commissions actually produce more competitive elections. That is partially because it is difficult to agree on what measures of a map’s performance indicate “success.” Yet taking explicitly political actors out of the process is surely a step in the right direction.

Voters in a few places will also consider whether to expand the electorate to more people. Currently Florida is one of four states that disenfranchise felons for life, which has a disproportionate effect on racial minorities. The Florida electorate, however, can change that on November 6 through Amendment 4, which would restore the right to vote for all felons—except those convicted of murder or sexual offense—who have completed their sentence, parole, and probation. Enacting this state constitutional amendment, which requires 60 percent approval, would re-enfranchise over 1.4 million Floridians.

Other voter expansions are also afoot. Voters in Golden, Colorado will decide whether to lower the voting age for local elections to 16. Doing so would follow the action in localities in Maryland and California, which have opened the election process for 16- and 17-year-olds for local or school board elections. The D.C. City Council is also considering a similar proposal and early indications show that it has the support of a majority of council members. Lowering the voting age has many benefits: it can create a culture of democratic engagement early in life while young people are in the supportive environments of home and school and may increase voter turnout in the future as they age and become habitual voters. Psychologists have found that 16-year-olds are cognitively developed enough to be informed voters. Coupled with improved civics education, lowering the voting age—at least for local elections—offers immense promise.

Nevada voters will decide whether to join over a dozen other states in adopting automatic voter registration, where the state takes the onus of registering everyone, such as by using information from its motor vehicles database. This reform improves turnout by automatically putting more people on the rolls, eliminating a barrier for people who do not take the affirmative step of registering in time. Maryland voters will decide whether to adopt same-day registration, allowing individuals to register at the polls on Election Day. A proposal in Michigan would adopt several election-related reforms, including automatic voter registration, same-day registration, and no-excuse absentee voting.

Campaign finance reform is also on the ballot in a few places, including Missouri, South Dakota, Portland, Oregon, and Denver, Colorado. The reforms in Missouri and South Dakota would lower campaign contribution limits and impose other ethics rules. The Portland measure would also impose contribution and spending limits for city elections. The Denver proposal would allow candidates to use public money to fund their campaigns, which can open the door for more people to run for office. The goal of all of these proposals is to make politicians less beholden to wealthy interests and more receptive to their constituents.

Finally, a few localities may change their voting methods. Voters in Fargo, North Dakota will decide whether to adopt approval voting, where voters can “approve” of multiple candidates for a single office and the person with the most votes wins. Lane County, Oregon may adopt STAR (Score, Then Automatic Runoff) voting, where voters can assign a score of zero to five to each candidate, with the winner determined based on these scores. These voting methods give voters more choices and eliminate a system in which a candidate can win with only a plurality of the vote. Moving in the opposite direction, voters in Memphis will decide whether to repeal its prior approval of instant runoff voting (also known as ranked choice voting), which would allow voters to rank-order the candidates. Voters had previously approved of the system, which is set to go into effect in 2019.

Amidst these positive voter expansions, there are also a few ballot measures this year that would make it harder to participate in our elections. Specifically, voters in Arkansas and North Carolina will decide whether to amend their state constitutions to allow strict voter ID requirements.

These numerous ballot propositions, with the exception of the Memphis push to repeal ranked choice voting and the Arkansas and North Carolina voter ID proposals, have a common theme: the voters themselves may adopt electoral reforms that will expand democratic participation and reduce the influence of incumbents. Any judicial review of these laws, if they pass, must take account of these aims.

This brief blog post does not provide ample space to offer a robust judicial test that courts should follow when considering the validity of voter-backed initiatives on democratic processes. But a few general outlines are appropriate.

First, the U.S. Supreme Court has already rejected a constitutional challenge to a voter-backed independent redistricting commission. Article I, Section 4 of the U.S. Constitution provides: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof….” After Arizona voters passed an initiative to create an independent redistricting commission, the Arizona legislature itself brought suit, claiming that the voters’ action took away the power from the “legislature” to dictate the “times, places and manner” of holding elections, as the U.S. Constitution directs. In Arizona State Legislature v. Arizona Independent Redistricting Commission, a 2015 decision, the Court rejected the state legislature’s argument by a 5-4 vote. The Court, per Justice Ginsburg, held that the Arizona Constitution, in creating the referendum power, contemplated that the people themselves could essentially serve as the “legislature,” meaning that a voter-created independent redistricting commission was consistent with constitutional demands. Justice Kennedy was in the majority in that case, suggesting that the replacement of Justice Kennedy with Justice Kavanaugh could change the outcome. Yet this is one area in which Justice Kavanaugh should follow his promise to adhere to precedent, even if he disagrees with the majority’s opinion, especially as voters promoting these reforms in other states have now relied on the decision.

Second, courts should generally defer to voters who want to open up their democratic process to include more people. Regardless of the type of challenge involved (constitutional or otherwise), judges should adopt an interpretive lens that sanctions these pro-democracy reforms. Put another way, courts could invoke what is essentially a one-way “democracy ratchet” for election rules that promote greater participation in the electoral process. In doing so, judges should consider whether the voter-backed initiative has the purpose or effect of expanding opportunities for democratic participation, with the corollary impact of limiting the entrenchment of those in power. If the new rule is democracy-enhancing in this way, then the court should defer to the voters. Improving electoral participation through expanded voter registration opportunities, expanding the eligible electorate by easing felon disenfranchisement laws or lowering the voting age, and adopting public financing or limiting contributions all make it easier for more people to participate in our democracy. Courts should allow voters to decide to expand their state and local democracies in this fashion. The fact that the voters themselves passed these reforms suggests that they truly want to take their democracy back from entrenched interests and widen the scope of those who participate. By contrast, courts should turn a skeptical eye on laws that restrict democratic participation, such as a voter ID requirement that would make it harder for some people to vote. More careful scrutiny is required in this instance because a majority is using its majority status to cut off the ability of others (the minority) to participate in democracy.

To be sure, this proposed framework still presents difficult interpretative questions and more space would be needed to flesh out all of the benefits, disadvantages, and permutations of this approach. For instance, does a limit on the amount of a campaign contribution expand or restrict electoral participation? Although there are strong arguments on both sides, the whole point of a contribution limitation is to ensure that politicians are not beholden just to their wealthy donors; a contribution limit requires a candidate to seek smaller donations from more people. In this way, a contribution limit, while cutting off the electoral participation of a few at a certain level, will likely encourage participation from a greater number of people.

In sum, even amidst all of the news of voter suppression, there is still a lot to celebrate with respect to our democratic system, and hopefully after November 6 there will be even more: positive electoral reforms that change the way our democracy operates. Separate from and in addition to fighting voter suppression, we need to harness the potential of these positive reforms to reshape our democracy. Courts, when faced with a challenge to a law that expands democratic participation, should defer to the voters who enact these positive changes.