Voting is (unfortunately) just an ‘ordinary liberty’

In the mess around apparent voter suppression and messy counts endemic to this past midterm election, a fundamental misunderstanding of our constitutional rights is played out frequently by media commenters who ought to know better. In brief, the U.S. is not quite the democracy that you likely thought it was, and perhaps it is time that we did something about that.

The reality is that voting is not a fundamental right defined in our Constitution like, say, the right to hold your religion or your gun. With the caveat of certain provisions of the Voting Rights Act of 1965, your “right to vote” is instead an ordinary liberty, mostly defined and constrained (still heavily) by state and local election laws.

The history of voting in the United States is a messy one. We started with a very limited “right to vote,” granted by states often only to literate free men over 21 years of age who also owned property. It took a long series of state and federal laws to “nudge” that “right to vote” more broadly into the population, and I contend that this right is still more constrained than most people think it is, or that it indeed should be in the 21st century.

The Voting Rights Act of 1965

The Voting Rights Act of 1965 was a landmark piece of legislation, using the 14th and 15th amendments to the Constitution to attempt to secure voting rights to minorities, especially in the American South. It is, however, a bit of a hodgepodge, falling far short of moving voting out of the “ordinary liberty” category. While the act makes illegal any state voting law that results in discrimination against racial or language minorities, and indeed it did extend the vote to millions of Americans previously disenfranchised by state laws, the application of that language has been far from universal. For instance, the entire Section 5 of the legislation only applies to certain notoriously-discriminatory jurisdictions requiring “pre-clearance” of any changes to voting laws, and this section has been seriously hobbled by the 2013 Shelby v. Holder case, in which the Roberts Supreme Court struck down most of the “pre-clearance” criteria.

The current makeup of the Supreme Court likely puts other provisions of this legislation at risk on the grounds of restricting rights reserved for the individual states to administer.

The math of voting constraints

The usually-stated intent of voting restrictions, such as ID laws and residency requirements, is to minimize “fraudulent voting,” but every attempt to prove fraudulent voting, such as impersonation fraud or registration fraud, have failed to uncover more than a small handful of cases out of millions of votes cast. And most of these cases are, at best, misunderstandings, and often almost-humorous cases of stupidity. There is really no tangible personal benefit in voting, nor any penalty for not voting, and so there is very little incentive to flout the law by registering or voting illegally. Allegations of big conspiracies to register millions of illegal votes are, like most “grand conspiracies,” mathematically-improbable bunk.

However, every state or local process implemented to attempt to keep one unqualified voter from voting will have the effect of also preventing qualified citizens from voting. An example from this past election is the “exact match” signature requirement implemented for absentee and mail-in votes in Florida. By perhaps as much as 1000-to-1 odds, most failed signature matches are process faults, not fraud. People’s signatures change over time, or they use various forms and forget which is used where, such as “first-initial-middle-name” instead of “first-name-middle-initial.” In addition, many of the “official” signatures, including mine, were captured from notoriously-finicky electronic pen readers used in drivers’ license registration offices.

Other examples of rejected ballots include variants of married names and hyphenated names. These people are all valid voters with a right to vote, and yet the bad process of signature matching excludes them, while failing yet to catch any significant number of fraudulent impersonators.

The math of “Voter ID” laws also excludes many citizens from exercising their vote. The Texas requirements, for instance, (intentionally) exclude many elderly living with relatives or in care facilities, college students, and hundreds of thousands of other people who have a frequently-changing address. In short, the probability of a valid citizen-voter being denied his or her vote via a voter ID requirement is likely hundreds or thousands of times greater than “catching” somebody impersonating someone else at the polling station.

The math of voter suppression is clear. The real goal of politicians here is to prevent certain classes of citizens from voting, rather than ensuring the exercise of of this important franchise.

The audit alternative

I find it interesting that people get obsessed with political polls before an election, but would reject pre-election or post-election auditing and sampling as a better way to detect voting irregularities for fear of the math. While the two applications share some common statistical language, the former is the sampling of a fluid, largely-unknown population of potential voters. I have likened pre-election polls in an earlier post to be more like pari-mutuel betting in horse races, where the posted odds more reflect the “confidence of the bookies” rather than the outcome probabilities of the actual horse race itself.

Post-election audits, on the other hand, sample from a fixed set of cast ballots, and pre-election audits sample from established voter rolls, both looking for various irregularities. Here the statistics are much better understood and reliable. Well-designed sampling methods could much more reliably point to systematic errors or fraud than in-place systems like the “Interstate Crosscheck Program.” While the intent of this system is to locate and purge voters registered in more than one state, a study from Stanford and Yale researchers found that this program eliminates about 300 valid voters for every fraudulent registration it purges. This system likely purged hundreds of thousands of legitimate voters from local rolls across the country before this most recent midterm election.

The elections in the United States would be far better off expanding the easy availability of voting, and then using targeted post-election audits to uncover levels of fraud big enough to sway an election.

The math of voter suppression and close elections

As of this writing, only 18,000 votes out of nearly four million votes cast are keeping the Georgia governor’s race between the Democratic candidate Stacey Abrams from her Republican opponent, Brian Kemp from a forced run-off election. And in a move reminiscent of banana republic elections, Kemp has been serving as Georgia’s Secretary of State, actually running this election until recently. Kemp has bragged about purging 700,000 voters from the rolls in recent years using very suspect, error-prone methods that likely take away the right to vote from tens of thousands of “legal” voters. Essentially, Kemp “fixed” his own election.

And in elections like this one, where we get down near a margin of 1% of the voters, another denied reality comes into effect. There is no one pure and correct count of the votes in elections like this. As I wrote some time back about a Virginia election that hit an actual tie, every recount of these elections will result in a different end vote count. The pure error rate of counting can easily exceed 1% of the vote, although usually errors in both directions offset one another.

Add to this the ballots that are from legitimate voters with minor defects in the ballot, and especially adding ballots rejected by the process errors noted above, anything can happen in these elections. In effect, the “will of the people” has not been determined. My contention is that all of these close races should require a re-vote, preferably with only two candidates on the ballot. I have described in an earlier how third party candidates, because of the way in which we usually administer elections from our nation’s founding, almost always have an effect directly opposite to intention, throwing the election to the candidate farthest politically from the third-party candidate.

Finally securing the right to vote?

Especially given the Neanderthal Federalist Society dominance of the Supreme Court, we need to press toward a very simple, unimpeded Constitutional fundamental right to vote for ALL citizens at their current domicile. Additional legislation is required to create some consistency of election security without obstructing the right of all citizens to cast their ballot.

Maybe then we could legitimately say that we live in a democracy.

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