Barriers at the Ballot Box Symposium Issue

By Mulroy, Steven J. | The University of Memphis Law Review, January 1, 2019 | Go to article overview

Barriers at the Ballot Box Symposium Issue


Mulroy, Steven J., The University of Memphis Law Review


The Supreme Court has famously called the right to vote "preservative of all rights."1 The phrase is not just fine rhetoric but literally true. With the possible exception of free speech, there is no conceivable right more important to democratic self-governance. Chip away at it, dilute it, or sideline it, and you lose the ability to prevent those in power from taking away our property, liberty, and even lives.

And yet it's been hard in recent years to escape the nagging sense that the right is indeed being chipped away and diluted or is at least under threat. In our last presidential election, a hostile foreign power intervened with a massive disinformation campaign with demonstrable results2 and penetrated the voter-registration databases of several states.3 A major party candidate (now President) declared during the campaign that the election system was "rigged," and declined to say he'd accept an adverse election result.4 The final result was the Electoral College victory of the candidate supported by the covert Russian operation despite that candidate losing the national popular vote by nearly 3 million votes.5 According to a recent poll, only 40% of voters have "a great deal of confidence" in the accuracy of U.S. election vote counts, and over 40% are "very concerned" about our elections being hacked.6

The courts will be of little help. The Supreme Court seems unable or unwilling to prevent gerrymandering.7 And it has aggressively acted against campaign finance reform.8

At the state level, it's a mixed bag. It seems the overall trend is toward the diminution of the right to vote. More and more states are enacting restrictive voter ID laws,9 engaging in severe purges of voters from the registration rolls,10 and enacting gerrymandered districting plans.11 On the other hand, there have been some recent referendum victories for protection of voting rights. In the 2018 general election, 4 states (Colorado, Michigan, Missouri, and Utah) adopted nonpartisan redistricting commission reform via referendum.12 And a Florida referendum restored voting rights to over 1 million previously disenfranchised former felons.13 Either way, voting rights and election reform are very much on the political radar.

Given all these causes for concern, it should come as no surprise that the first bill introduced in the new Democratic-majority House of Representatives-the signature bill showcased as illustrative of the new chamber's self-touted reform agenda-was a comprehensive election reform bill, one whose self-avowed purpose is to "expand Americans' access to the ballot box" and "reduce the influence of big money in politics."14

So, it seems timely indeed for a Symposium focusing on voting rights and election reform. Currently, the main battlegrounds in election reform fall into a few main categories: (1) impediments to individual voter franchise; (2) campaign finance; (3) electoral administration (other than that governing access to the franchise); and (4) electoral systems. The first category includes such issues as registration requirements, voter ID requirements, registration purges, and felon disenfranchisement.15

The articles in this Symposium Issue touch on parts of all 4 categories. I highlight a few discrete issues below, ones both discussed in this Symposium Issue's articles as well as others that deserve attention.

Voter ID Laws. Voter ID laws have become a higher-profile issue in the last decade or two. Since 2000, the number of states with voter ID laws rose from 15 to 33, with the pace of adoption accelerating in 2011.16 Not all of these laws call for a photo ID, and some do allow alternative identification means (like signing an affidavit). But currently, 11 of these states require photo IDs and accept no substitutes.17

At first glance, this may not seem unduly burdensome. Most of us have some form of photo ID with us at all times, typically a driver's license or other state-issued photo ID. …

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