By Will Aarons, LWV-Wake intern
It’s no secret that our “representative democracy” is neither fully democratic nor readily representative. Instead, a stark minoritarianism suffuses the United States government and the elections that shape it. From the Senate (which awards equal representation only to landmasses), to the first-past-the-post electoral college system (under which the expected value of voting in Colorado is thousands of times that of voting in California), a chasm has always separated the reality of our system from the democratic fantasy of “one-person, one-vote.”
Many political scientists view these defining institutions as a chronic medley of Jim Crow hangovers, but as much as established structures have undermined representation since time immemorial, so too have the ongoing efforts of a cadre of politicians and judges whose collective interests diverge from democracy promotion. The reality of the modern electorate is that when white and rural voting blocs have out-sized influences on elections, the Republican Party stands to benefit.
Rationally, Republican political and legal projects often either award white voters with more per-vote representation or the relative share of white votes cast in total. In a zero-sum game, preventing non-white citizens from voting (and diminishing their representation if they do) is just the other side of the same coin. Conservative advocacy groups continue to push for widespread voter purges which have, in some cases, removed thousands of legitimate voters in predominantly Black neighborhoods from voter registration rolls.
What’s more, the 2013 gutting of the 1965 Voting Rights Act in Shelby County v. Holder (passed 5-4 by the conservative justices) removed the built-in federal oversight that previously mediated state-level election reform, effectively placing the burden on the public to challenge any potentially unfair voting laws in court--a process that, even if ultimately successful, isn’t quick enough to reliably vet laws before they influence elections.
As individual citizens, we largely lack direct control over the institutions and laws which continue to threaten our democracy; however, if anything, that fact only further obligates us to keep a watchful eye on the laws and reforms that affect elections in our states and counties. Laws seeking to disenfranchise and suppress voters are often insidiously vague, but even as obstacles to the ballot box pass without our knowledge (let alone our consent), an engaged public can mitigate the asymmetry in voting information and ensure that potential voters are aware of their rights. The diligent efforts of organizations like the League of Women Voters to expand voter education play an integral role in minimizing the number of citizens whose voices are unwittingly silenced by complicated voting rules and procedures, whether those policies are passed out of malfeasance or negligence.
For me, a North Carolina student just beginning to follow local politics, keeping track of the 2020 election’s rapidly evolving absentee ballot process and accompanying flurry of court challenges proved no easy task. The chaos and uncertainty that the COVID-19 pandemic portended for our election system made 2020 an overwhelming year to be both a first-time voter and a first-time election monitor. Living in a state with a checkered history of post-Jim Crow voter suppression, a decade of recent voting controversies garnering national attention, and a pivotal toss-up Senate race, I was preparing myself for an election season as contentious and drawn out as the Bush v. Gore debacle that transpired the year before my birth.
Reflecting on this whirlwind of a year, nothing has possessed even the faintest fragrance of normalcy, the general election included. But despite the dizzying back-and-forth between the courts and NC Board of Elections, the discombobulated patchwork of state election policies, and the appalling series of baseless attacks that the Trump administration continues to levy against the integrity of the results, this election in North Carolina has not nearly been the dumpster fire that I was expecting.
The state faced its fair share of callous efforts to disqualify mail-in ballots (which I’ll discuss later), but let’s start with the good. North Carolina’s voting rules, on the whole, were significantly less restrictive this year than they have been in past elections. First, the state legislature reduced the absentee witness signature requirement from two to one on June 12th, making it easier for voters in small households to fulfill the witness requirement. In that same piece of legislation, they allowed voters to request absentee ballots online, required the use of a ballot tracking system, and required the Department of Health and Human Services to create guidelines allowing voters in nursing homes and assisted living facilities to receive assistance from poll workers.
Additionally, the number of early voting sites in 2020 quadrupled statewide (compared to 2016), voter registration could be completed online (which was not the case in previous elections), and some felons regained their right to vote in a September ruling. These new provisions making it easier to vote undoubtedly facilitated North Carolina’s historic levels of turnout and unprecedented rates of early voting.
Perhaps the most consequential of these changes was District Court Judge William Osteen’s August 4th decision granting voters due process to fix certain deficiencies with their absentee ballots via a cure affidavit. In the past, absentee ballots filled out incorrectly were rejected, and it was up to the voter to discover the fate of their ballots (without notification) and submit another ballot before Election Day. Under the previous rules, absentee ballots were rejected at alarmingly high rates—15% of all NC mail-in ballots were rejected in the March primaries, a startling proportion which, if applied to the November Election, would mean almost 150,000 rejected ballots (around twice the margin of the Presidential race statewide).
The rates of ballot rejection decreased markedly from both 2016 and this year’s primary, with the total statewide rejection rate tallying in at 0.8% and no county rejecting more than 5% of its ballots. This improvement can undoubtedly be attributed to the new ballot cure rules which allowed several thousand voters to fix deficiencies with their ballots (although the precise final breakdown of the cure process remains unclear), combined with efforts by voting rights activists to reach out to voters whose ballots were initially rejected. Locally, the Wake County Board of Elections, whose weekly absentee meetings I attended virtually, worked diligently to ensure all the votes and cures were processed and counted correctly. League members sitting in on other county meetings across the state echoed similar observations.
Despite the improvements, North Carolina’s witness requirement proved a hurdle for thousands of voters; the vast majority of rejected ballots arrived to county Boards of Elections with missing or incomplete witness information. It’s worth noting that the justifications for witness requirements (often appealing to election security) are extremely tenuous--there is no evidence of widespread voter fraud, nor is there any reason to believe that the witness requirement would deter the devoted fraudster. Only 11 other states still have witness or notary requirements for mail-in ballots, and like North Carolina, more than one of those states saw challenges to their regulations this year. While it’s unclear how our rejection data stacks up against that of the other 49 states (most of which don’t have as much transparency as our state Board of Elections), it is clear that the 7,955 rejected ballots statewide are extremely consequential, given that the race for Supreme Court Chief Justice favors Republican Paul Newby by only some 400 votes. As I write this, the votes for that race are still being recounted, but given that roughly three times as many registered Democrats have seen their ballots rejected as registered Republicans, the politics behind this year’s vote counting may have been a necessary determinant of the Chief Justice race.
The political dynamics behind absentee voting have taken shape in an intriguing and confusing way during this pandemic election, with President Trump waging a continual war against the surge in nationwide mail-in voting by making changes within the postal service and falsely alleging voter fraud. If his attacks were part of a political strategy, that strategy would be hard to rationalize, considering that in pivotal states like Arizona, vote-by-mail is a Republican Party staple. Nonetheless, this GOP advantage doesn’t hold for all states; in fact, quite the opposite—in North Carolina, absentee ballot requests and returns by Democrats were more than double those by Republicans, and a similar pattern persisted in Pennsylvania and other key states. On the whole, the research suggests that neither party benefits nationwide from more widespread absentee voting. Even within North Carolina, it’s impossible to know the extent to which the Democratic Party benefited from their mail-in dominance, especially since many of those mail-in voters would have otherwise voted in person.
Regardless of those broader breakdowns, one reality is clear: in North Carolina, where Democrats disproportionately voted by mail, Republicans presented several challenges to the absentee ballot process throughout September and October. The Trump campaign filed a lawsuit challenging the Board of Elections’ nine-day extension to the absentee ballot receipt deadline, calling for all ballots received after November 3rd to be rejected, even if they were postmarked by Election Day. The 4th U.S. Circuit Court of Appeals denied their filing on October 20th. Despite being asked to block North Carolina’s deadline extension, the Supreme Court refused. (The Court decided a similar case in Wisconsin in favor of the plaintiffs, although it was judges who extended the deadline there--not the Board of Elections.)
The second Republican strategy was more successful. State GOP politicians, backed by the Trump re-election campaign, challenged the Board of Elections’ September 15th settlement with the Alliance for Retired Americans (an advocacy group that previously sued the Board in an attempt to remove barriers to voting during COVID-19). The initial settlement quickly grew politically charged—although the five members of the Board unanimously agreed to the terms of the settlement, the two Republican members of the board resigned shortly after, claiming that they weren’t fully briefed about the implications of the settlement that they agreed to (despite the fact that they had the opportunity to have their questions answered by legal staff).
In the ensuing court challenges, Republicans attacked the portion of the settlement that allowed voters to cure ballots in the instance of missing witness signatures, arguing that this provision effectively eliminated the state’s witness requirement that was upheld in previous rulings. On October 1st, the state Board of Elections directed counties to freeze the absentee ballot cure process until the court challenges concluded. For two weeks, some 10,000 absentee ballots remained on hold, and the voters couldn’t be alerted about their ballot statuses until all the litigation was resolved.
On October 14th, District Court Judge William Osteen (a Bush appointee) struck down the settlement, requiring all ballots with witness issues to be spoiled and reissued. Not only did the judicial outcome aid Republicans’ efforts to restrict absentee ballot counting, but the nearly two weeks of delay to the cure process also served the cause by decreasing the available time for voters to submit new ballots.
The logistical challenges that the pandemic posed to our election system exposed a novel weak point in our democratic processes. While politicians on both sides of the aisle have historically pursued undemocratic strategies such as voter suppression (preventing people from casting ballots), gerrymandering (skewing representation), and administrative suits (challenging the legitimacy of individual votes based on felon status, citizenship, etc.), this year’s court challenges fall outside of all of these categories.
In recent history, systematic challenges to election policy have concerned questions of voter eligibility (e.g., Voter ID laws) and voter representation (e.g., redistricting). This year’s legal challenges to the deadlines and witness requirements have created an altogether new question for policymakers and activists to grapple with: which ballots, once cast, are allowed to count? As this antagonistic election cycle draws to a close, and as the promise of a vaccine provides hope for the end of a long pandemic, it’s important not to discount the possibility that political polarization might again coincide with a national emergency—that the new question raised this year might later become relevant.
It’s easy to gloss over eccentricities in the process because most of 2020’s results were too decisive to have been altered by any of them. Black, Latinx, and Native voters saw their ballots rejected here at more than three times the rate of white voters (an undemocratic reality regardless of the underlying cause). In retrospect, we can conclude that those disparities wouldn’t have affected the outcome, but as the demographics of the country continue to change, as more people vote, and as elections continue to be more competitive than they were a few decades ago, it isn’t farfetched to envision future court challenges in Ohio, Florida, or Texas shaping up much like the seemingly trivial bickering we just witnessed in our state.
To preclude that possibility, the idea of a coherent national voting infrastructure ought to occupy a more prominent role in the political discourse—in line with approaches to fix gerrymandering, voter suppression, and the electoral college. If this election has taught us anything (that we shouldn’t have already learned from 2016), it’s that when states count ballots however and whenever they please, expensive lawsuits, confusion, and public distrust in democracy abound.
And while I personally believe that we have an unhealthy cultural (and constitutional) obsession with federalism writ large, I can impartially say that I don’t know a single person with any particular attachment to state-administered voting processes. It isn’t the case that voters are averse to reforming these processes—voters have just never been given a reason to care about nationalized voting, and, as such, politicians have never had a reason to consider such reforms.
True, legally mandating the adoption of a nationalized voting system might face constitutional hurdles (although Congress does have some authority to override state election regulations in national contests), but that doesn’t mean that the federal government (or the private sector) can’t create a more streamlined infrastructure and allow states to opt-in independently (à la National Popular Vote Interstate Compact). We can hope that the broader political incentives shift enough to galvanize action toward nationwide voting reform, but organizers need to take it upon themselves to press the issue both by adding nationalized voting to the voter education docket and by directly pressuring state and local politicians to support and discuss such reforms. While the election is still on our minds, and as we wait for the political system to accelerate in January, now is a perfect time to initiate the conversations that will lay the groundwork for a sustainable, democratic future.