2016: Who’s Rigging What?

Posted in: Election Law

Recently, Donald Trump has been complaining that the election is “rigged.” He points vaguely to recent federal court decisions that have struck down some voter ID provisions, and has predicted wholesale voter fraud. Study after study has shown that in-person voter fraud in this country is vanishingly rare. But is there evidence that voter participation is being manipulated? I decided to take a closer look at the state of play.

In recent years, access to the ballot box in this country has been shaped by two broad trends. To begin with, a number of states have eliminated or softened provisions that had prevented people with a criminal conviction from voting. This is part of the trend in criminal justice reform, which I have described before, in favor of giving people a second chance. We have a long way to go in this regard, and a prior conviction still prevents nearly six million people from participating in the democratic process, but these steps have added over 900,000 people to the rolls over the past 20 years, at least according to an analysis by the Sentencing Project.

At the same time, a number of state legislatures are considering or have enacted provisions that make it easier for eligible residents to register and vote. According to a detailed analysis by the Brennan Center at NYU Law School, in the 2016 legislative session alone, legislators in more than 40 states and the District of Columbia have introduced over 420 bills to enhance or facilitate voting access. For the fourth year in a row, the number of bills introduced nationwide that would make it easier to vote have outpaced their opposite.

Yet a number of states have resisted these expansionist trends, and in some cases have moved aggressively in the other direction. Twelve states take the most restrictive approach to felon disenfranchisement, limiting voting rights even after a person has completed her prison sentence and is no longer on probation or parole. The people thus excluded from the rolls in these twelve states—Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, and Wyoming—make up 45 percent of the disenfranchised population nationwide.

Likewise, fifteen states have adopted provisions that will restrict access to the ballot in the 2016 presidential election, even for otherwise eligible voters: Alabama, Arizona, Georgia, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin. Because six states are on both lists (Alabama, Arizona, Mississippi, Nebraska, Tennessee, and Virginia), we have a total of 21 states that take the most aggressively restrictive approach to voting. What’s up with these 21?

Perhaps this table will help us answer that question:

Number 2016 Voting Restrictions Most Restrictive Felon Disenfranchisement ’08 Presidential Election ’12 Presidential Election Party in Local Control
1 Alabama Alabama R R R
2 Arizona Arizona R R R
3 Delaware D D D
4 Florida D D R
5 Georgia R R R
6 Indiana D R R
7 Iowa D D 2/3 R (G+H)
8 Kansas R R R
9 Kentucky R R 2/3 R (G+S)
10 Mississippi Mississippi R R R
11 Nebraska Nebraska R R R
12 New Hampshire D D 2/3 R (S+H)
13 Nevada D D R
14 Ohio D D R
15 Rhode Island D D D
16 South Carolina R R R
17 Tennessee Tennesseee R R R
18 Texas R R R
19 Virginia Virginia D D 2/3 R (S+H)
20 Wisconsin D D R
21 Wyoming R R R

This table lists the fifteen states with restrictive voting provisions in place for the 2016 presidential elections, as well as the twelve states with the most restrictive provisions regarding felon disenfranchisement. As noted, this is a total of 21 states. The third and fourth columns record how those states voted in the 2008 and 2012 presidential elections; the fifth column records which party has local control in the state capitol and governor’s mansion. The sources for this table are the reports from the Brennan Center and Sentencing Project linked in this column, The New York Times election maps for 2008 and 2012, and information on partisan composition at the state level provided by the National Conference on State Legislatures.

So, is there a parallel between the presidential vote in the last two elections and restrictive voting practices? Not really. In 2008, a bare majority of the states (11 of 21) cast their electoral votes for John McCain rather than Barack Obama; in 2012, the number grew by only one (Indiana). The number tilts slightly to the GOP, but not by much. On the other hand, both felon disenfranchisement and voting procedures are governed in the first instance by state law. For that reason, I also looked at the party in control at the state level. And it is here that the numbers become most revealing.

Of the 21 states, fifteen have a Republican trifecta, meaning Republicans control both houses of the legislature as well as the governorship. (NB: Nebraska is the only state in the country with a unicameral legislature. Legislators in Nebraska are officially non-partisan, but a substantial majority identify as Republicans. The governor is also a Republican. For that reason, I have included Nebraska among the Republican trifectas.)

In four of the remaining six states, Republicans control either both chambers in the legislature or one chamber and the governorship. Democrats have a trifecta in only two of the 21 states—Delaware and Rhode Island—and there is no state where Democrats control two of three chambers. Moreover, in fourteen of the fifteen states that passed voting restrictions that will be in place for the upcoming presidential election, Republicans either have a trifecta or control two of the three chambers. In one of those states—New Hampshire—Republicans control both chambers of the legislature and overrode the Democratic governor’s veto of a voter ID requirement.

In fact, the numbers on this score are even more striking than this table can convey. There were originally 17 states that passed restrictive voting statutes that would have been in place in the 2016 elections, but the statutes in North Carolina and North Dakota were struck down or enjoined by the federal courts. In North Dakota, a federal court found that the law imposed “excessively burdensome requirements” on Native Americans, in violation of the Equal Protection Clause. And in North Carolina, the U.S. Court of Appeals for the Fourth Circuit recently held that “because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history,” a step taken “with discriminatory intent.” In both of these states, Republicans have a trifecta.

A number of events reinforce the apparent connection between local Republican control and restrictive approaches to voting:

  • In Iowa in 2005, then Governor Tom Vilsack, a Democrat, issued an executive order that established a process to restore voting rights to people who had been convicted of a felony. In 2011, Governor Terry Branstad, a Republican, reversed this order on his first day in office.
  • In Kentucky in 2015, then Governor Steve Beshear, a Democrat, issued an executive order that restored voting rights to people with non-violent felonies. Governor Matt Bevin, a Republican, reversed this order shortly after taking office.
  • In Virginia in 2016, Governor Terry McAuliffe, a Democrat, issued an executive order restoring voting rights to all Virginians who were no longer incarcerated or on probation or parole. The Speaker of the House of Delegates and Senate Majority Leader, both Republicans, promptly (and successfully) challenged the action in state court.

So what is there to say about all this? Like President Obama, I do not believe the elections are rigged. But if they are, it appears that Trump has confused the riggers and the riggees.

Posted in: Election Law, Politics

Tags: Legal

2 responses to “2016: Who’s Rigging What?”

  1. Mark V says:

    With respect, Professor. There are entities who wish to manipulate the voting process, to their own ends, of course. You seem to have only concentrated your article on those disenfranchised individuals or groups. A strawman. Show us you are really interested in finding the truth about the vote manipulation. I’ve been researching it for years, starting from my former career as a reporter for the Cleveland Plain Dealer.
    Just to start you on the path, please read the investigation by Greg Palast here: http://www.gregpalast.com/gop-led-purge-threat-to-3-5-million-voters/
    Then check out “Hacking Democracy”. A 2006 HBO documentary. And, the Blackboxvoting.org site with Bev Harris.
    Also, look into the many ‘inconsistencies’ and flaws surrounding the electronic voting machines owned by Diebold. Way too many to list. Fortunately, a group of investigators have that list. http://www.wanttoknow.info/votingproblems. On that page you’ll find that even the Secretary of State in California, Keven Shelley, called for a criminal investigation of the company after he found proof of them lying to State officials regarding the use of unapproved software and machine shutdowns occurring in so called swing counties. He actually had them decertified, which is within his purview to do. By the way, the Federal Government agencies created to insure honest elections have zero oversight in testing the machines we use to cast our votes. Seriously.

    Just one more thing you may want to investigate before you declare the elections are not rigged. Neither the State or the Federal Election Commissions are responsible for counting our votes. Diebold is one of two private companies who actually count the majority of votes, nearly 82% of them, cast in every election. The other is ES&S. A pair of brothers are the President and Vice President of those companies. Bob and Todd Urosevich, respectively. They are very politically connected. see: http://harpers.org/archive/2012/11/how-to-rig-an-election/5/
    The balance are counted by other firms, some or even done overseas in Countries like India.
    Remember Stalin’s quote? “It is enough that the people know there was an election. The people
    who cast the votes decide nothing. The people who count the votes decide
    Well, it seems those who are commissioned to do the heavy lifting in our election process have taken that page out of his book.
    Thank you for reading.

  2. terre says:

    When individuals are able to accept or not accept anyone who shows up to vote, there is obviously room for manipulation. The good news is that most people don’t show up anyway.