Illustrations by Anthony Russo
In the aftermath of the November 2020 election, voting and voting rights are receiving significant attention and, in many states, going through significant change. How and when can an American vote? Opinions—of course—differ.
The Yale Alumni Magazine recruited three experts to explain the history and the current state of voting laws and standards. University of Michigan professor Ellen D. Katz ’91, ’94JD, and Yale professors Jacob Hacker ’00PhD and David Blight got together on Zoom for a wide-ranging discussion. Mark Alden Branch ’86, the magazine’s executive editor, served as moderator; editor-in-chief Kathrin Day Lassila ’81 also sat in. The discussion has been condensed and edited for clarity.
Mark Alden Branch: We’ve seen a big wave of new laws around voting this year. Can you talk about the nature of these laws and what you see as their likely consequences?
Jacob Hacker: Since the 2020 election, there’s been a huge “Biden backlash,” as it’s sometimes called, in states dominated by Republicans, and particularly in those states that were hotly contested in the last election. What we’ve seen are three major types of voting legislation in these states, and they’re all motivated by a false narrative about voting fraud and the big lie that Donald Trump actually won an election that he lost.
First, there’s been a series of voter restrictions that have gone way beyond rolling back the increased absentee voting in 2020, to really restrict access to the ballot and put in place new measures that make it harder to cast a ballot, particularly for minorities and lower-income voters. Second, there’s been a reaffirmation of Republican control over gerrymandering. We’re going to see another wave of really intense gerrymandering in the wake of the 2020 census, and since 2000 these gerrymandering waves have been extremely effective in maximizing their seats in state legislatures and at the national level.
And then finally, in these states, Republicans are pursuing a series of measures to cement GOP political control over the electoral process, in particular the resolution of contested elections. It’s often said, with justification, that had Donald Trump benefited from the kind of laws that are being put in place right now in the states that are closely contested, like Georgia and Arizona, he might well have been able to steal the election. Republicans could have overruled the nonpartisan or norm-bound politicians who upheld the election results that showed that he lost in 2020.
Ellen D. Katz: All the measures Jacob mentioned reflect and fuel a belief that many Americans hold quite firmly, namely, that a vast number of ineligible people voted in the last election, that dead people, noncitizens, nonresidents, and underage people cast ballots that were counted by election officials intent on skewing the results. There is a second belief, also firmly held by many Americans—albeit different ones—that many of the new rules, policies, and laws are being put in place to make voting more difficult for particular voters, most often voters of color, who tend to vote Democratic. They also see that these efforts are now moving into the post-election arena and threatening to distort how we count votes and certify elections. Together, these beliefs have generated a sense of crisis. There is a pervasive lack of confidence in the electoral system.
There is also a shared sense that the present crisis is unprecedented, that the attacks on the electoral process are unlike anything we’ve previously encountered. I think the sense that this is new and different is obscuring the extent to which so many of the things we are presently seeing are, in fact, longstanding practices and techniques. Most obviously, the manipulation of electoral rules for partisan gain is nothing new. Voter suppression is nothing new. There are aspects of the present moment that are new and, without doubt, factors that are coming together in ways we have not previously encountered. Still, so much of what we are seeing now are things we have seen before. It’s worth recognizing that—if only so that we can better understand the nature of the problems we are confronting.
Hacker: There is widespread sense that something is wrong with the electoral system. There’s a widespread perception among Republicans that the election was stolen—and that widespread perception is factually wrong. The Trump administration’s own intelligence specialist said that this was actually an extremely free and fair election, and it was, after all, Republican officials who ended up certifying the results in some of these key states.
The research on voter fraud shows that it’s really rare. And yet, as Ellen was saying, there’s a long-standing development of this narrative around voter fraud that then blossomed into this big lie about the 2020 election being stolen. We shouldn’t forget that this is an empirically verifiable claim, and it’s empirically false.
David Blight: This idea that the election was stolen: it is absolutely false, and yet millions believe it. One of the problems we’re having with this issue, and have had for quite some time, is that those of us who live in a world of reason and logic and research—universities, journalists, people who believe in the empirical bottom line—don’t want to believe we actually are living in a world of enormous misinformation and propaganda. We want to believe that evidence and facts can’t fail. But they can.
This is part of what the dissonance on this issue is about. Americans need reminding that democracy works best when it does not mirror the greatest divisions in society—such that all sides can agree to sustain a political system even when they’re defeated. That’s one definition of democracy: you suck it up and accept defeat. We’ve just had an election where part of the side that lost did not accept it. We had a partly peaceful transition of power and partly not. January 6 was new—at least in terms of an insurrection on the United States Capitol to first defy and then perhaps overthrow that election. We haven’t had that before, and it makes us all nervous about what happens next time—in 2022 or 2024—no matter what barriers we put up against it.
And a last point here. Ellen is right: this is not new. The restrictions against voting are as old as the day after the 15th Amendment, ratified in 1870. Reconstruction, the voting machinations committed in the South in the late nineteenth century, the Jim Crow era—it’s all over the record.
In 1898 there was an infamous massacre or coup in Wilmington, North Carolina, where the Democratic Party engineered literally a coup d’état. They first took over the county around Wilmington through violence, to eliminate the Black vote, and then took over the whole state of North Carolina. One of the leaders, Claude Kitchin, spoke in the aftermath. He was standing in front of a banner that read “White supremacy,” because that’s what the whole campaign was about—white supremacy explicitly—and he said, and I quote, “We cannot outnumber the Negroes, and so we must either outcheat, outcount, or outshoot them.”
Two of those three we are living with right now. The shooting, not yet.
Katz: As David points out, many people do not accept the outcome of the 2020 election, and there’s a serious question about what states can or should do about that fact. We need to have confidence in the system for it to work, and we need rules and policies that promote such confidence.
One of the most interesting takes on this question of confidence comes from Judge Richard Posner [’59]. In 2007 he wrote an influential opinion upholding a challenged voter ID measure out of Indiana. Seven or so years later, he viewed another challenged voter ID measure, in Wisconsin, quite differently. In a dissenting opinion, Judge Posner observed that in-person voter fraud of the sort that strict voter ID measures purport to tackle is a nonexistent problem. He wrote that there’s simply no voter fraud of this type. He went on to say that if people think an ID is needed to counter fraud, it implies a massive public misunderstanding that cannot justify the burdens the ID measure imposed.
I’ve long thought that observation was spot on. We shouldn’t make it harder for people to vote simply because some people mistakenly think doing so is necessary to address a nonexistent problem. But consider what happened last year in Michigan, where I live. Voters here are entitled to no-excuse absentee ballots, and months before the November election, our Secretary of State mailed absentee ballot applications to all registered voters. The goal was to assist voters who wished to vote absentee during the pandemic. Allegations quickly arose and swirled for months that those mailed applications led to extensive voter fraud. A recent investigation led by Republican state senators unpacked those allegations and found absolutely no evidence of any fraud linked to the mailing—or more generally for that matter. It has nevertheless been suggested that unsolicited mail-in ballot applications not be sent in the future, largely due to the concerns about fraud that followed from last year’s mailing.
Perhaps eliminating such mailings will make some people feel less uneasy about the process. But it will also make voting more difficult for some people and do absolutely nothing to counter actual fraud, given that there was none to counter. More broadly, should fostering confidence in the electoral system be sufficient reason to impose burdens on voting? Fostering confidence is plainly important, but that hardly means every measure that purports to advance that goal is advisable or legitimate. Nevertheless, a long line of cases suggests that they might be and that states have tremendous discretion to put such measures in place. The Supreme Court’s recent Brnovich decision was just the latest judicial ruling to indicate as much.
Hacker: Yes, the courts have been arguing that there should be an unusual amount of deference to the states—that even unfounded perceptions of voter fraud can undermine confidence in elections and therefore should be taken seriously. At the same time, courts have essentially asserted that the appearance of corruption in the campaign finance realm isn’t sufficient justification to have reasonable limits. I don’t know how you reconcile Brnovich and Citizens United without noting that in each case, it was the Republican Party that was advantaged by the majority decision.
Indeed, there’s huge inconsistency even in election cases. In the cases Ellen discusses, the Court has followed a path that undermines federal laws that exist to protect the integrity of elections and the rights of vulnerable voters. But in other areas, it has pursued policies that are anything but hands off. I’d take Shelby vs. Holder in 2013 as the epicenter of this trend. [In Shelby County vs. Holder, the Court held that a section of the Voting Rights Act was outdated and needed revision. Congress has not revised it; as a result, Section 5 has lapsed. Section 5 required areas with a history of discrimination to check all new voting rules to ensure they wouldn’t harm minority voters.]
In these cases, the courts are basically backstopping political elites who want to limit the ability of voters to challenge their power—what might be called minoritarian thinking. By that I mean the idea that minorities who believe they’re threatened should have outsized clout in the political system. Alas, there’s a long history in the United States of minoritarian thinking. Let’s be clear: the most alarmed Republicans are a distinct minority of the electorate. Partisan fighting for advantage has always been baked into our electoral system, which defers so much to the states. But the degree to which there’s now explicit articulation of a kind of minoritarian ideology around these changes strikes me as a dangerous development.
Blight: The greatest minoritarian movement in American history was, of course, the Confederacy. And its great philosopher was John C. Calhoun [Class of 1804], who wrote on protecting minority rights and minority interest. He’s still read, for that reason. There is a strong minoritarian movement, but it’s not a single section—the South or the West, say. It’s all over the country. And there are rural Americans who do not want to live with cities. I have cousins in Michigan who are farmers. They are geniuses in what they do with their farm, but they are rock-ribbed rural Republicans who are resistant to many of the changes in American society, and they rightly resent being accused of “white privilege,” given how hard they work to earn a living. When I’ve talked to them about it, that’s where the conversation ends, because where do you go from there?
We are living once again in a wave of states’ rights doctrine, states’ rights actions. It’s inherent in our Constitution—federalism is forever, I understand that—but we have, by and large, a sordid and terrible history with states’ rights. We have to keep reminding Americans that states’ rights is a doctrine. It can be overly enforced, and it can be used for good ends—like the women’s vote. But the Supreme Court, as Ellen says, has been sending power back to the states for years. And here we are: thou shalt not touch the right to vote, because it belongs to the states. But that’s not what Congress said in 1965 with the Voting Rights Act and we are in dire need of its federal revival right now.
Katz: We can debate exactly when these changes began, but, as David notes, it’s clear that federal law no longer protects the right to vote as robustly as it once did. Look at the way the Supreme Court speaks of the right to vote today. The issue is not simply that states can regulate that right, but also the degree to which a state can throw up all sorts of obstacles to participation. Making voting difficult seems to be fine, so long as it is not entirely impossible.
Ruth Bader Ginsburg, in one of her final opinions, offered a very different view of the right to vote. The case arose out of the Wisconsin primary held in the early weeks of the pandemic. Many more voters there sought to vote absentee than they had previously, and the state fell behind in processing the applications it received. Meanwhile, scores of polling places closed in places like Milwaukee because of a shortage of poll workers. This meant that voters who applied for but had not received absentee ballots had to choose between voting in person at the remaining overcrowded polling stations or refrain from voting entirely. Justice Ginsburg thought that a system that forced voters to make this choice infringed their right to vote and indeed risked causing “massive disenfranchisement.” A majority of the Court disagreed, suggesting that Wisconsin had done all it needed to do to protect the right to vote. The Court did not view the case as involving disenfranchisement at all.
Hacker: The changes taking place at the state level aren’t just these regressive restrictions on access to the ballot. There’s also the degree to which the states have been effective in gerrymandering, particularly Republican states. And perhaps most ominous are the new changes in the electoral laws that leave political officials in the position of being able to make the final call in contested races.
These broader challenges to our electoral system are layered on top of a political system that has always had a very strong bias toward non-urban America—particularly, in the Senate, with its built-in representational bonus for low-population states. That bias has become increasingly aligned with partisanship. It was not the case 40 years ago that rurality and Republicanism were tightly linked, but they are now, and that matters a lot for the Senate. Republicans have not won a majority of votes cast nationwide in any six-year Senate election cycle in the last 20 years, but they’ve held the Senate for a big chunk of that period.
As Jonathan Rodden [’00PhD] at Stanford has shown, any system based on these winner-take-all elections with single-member districts—that is, one elected official for a particular geographic region—is going to have a huge potential for gerrymandering. That’s a lot easier to do if you’re gerrymandering in favor of the rural party.
Urban areas now have huge concentrations of Democratic voters. You can draw districts that essentially cram all these voters together. And you can put Democratic voters who live outside urban areas in several different areas, where their votes are outweighed by Republican voters. That’s how the state legislative maps can produce such lopsided Republican majorities. Again, that’s a result of aggressive action on the part of Republicans, but still, it’s a lot easier to gerrymander in your favor if your opponents’ voters are in urban areas.
Republicans have controlled a lot more states in the last 20 or 30 years. Their success outside of national politics, and particularly outside of national presidential politics, is a big part of the reason they can reshape state-led electoral systems. And so the question is whether or not Democrats can muster enough power to shift the making of electoral rules to the federal level, where they have the biggest advantage in American politics today.
Katz: Whether Congress will enact meaningful voting reform remains to be seen. There are practical and constitutional limits on what Congress can accomplish. At the same time, it is possible that the manipulation of foundational rules like one person, one vote will pass muster in the present Supreme Court. And while we’ve seen some promising developments on partisan gerrymandering with increased reliance on independent districting commissions, here, too, there is a credible constitutional challenge lurking, namely whether these commissions impermissibly infringe state legislative power. The Court rejected such a challenge six years ago, but it is not at all clear that a majority of the present Court would affirm that ruling.
Branch: Say I’m one of David’s cousins in Michigan. Why do I care about this? Why should this bother me?
Kathrin Day Lassila: And how can ordinary people with different political views talk to each other? How can we get a little way toward understanding each other?
Hacker: There is definitely a branch of the Republican Party that recognizes that trying to rig the electoral system is not in the Party’s favor. When there were challenges to certifications of the votes, many Republicans said: The electoral system and the Constitution are working pretty well for the Republican Party right now. Do we really want to get in a position where we start contesting these elections through political officials at the state and federal level, rather than handling them as usual?
A conservative Constitutional stance is very consistent with the view that some of the changes taking place are not a good idea. But those who believe the electoral process is fraud-ridden and rigged against Republicans seem more radical than conservative. And this is a little tongue-in-cheek, but according to the research, we should definitely discourage your family in rural Michigan, David, from watching Fox News.
My colleagues Josh Kalla [’14, ’14MA] and David Broockman [’11] did a study, right around the time of the 2020 election, in which they paid a random selection of Fox News viewers to watch CNN instead. They became more concerned about COVID, they had a perception that Trump was handling COVID less well, they were less likely to believe the election was stolen, and they were more supportive of Biden. And they were still—on all measures—just as likely to self-identify as Republican and say they were conservative.
Katz: Some views may be less fixed than they might seem, and there are at least some areas in which there may already be more agreement than we might think. In 2018 Michigan voters overwhelmingly approved a constitutional amendment making a series of what were seen as common-sense electoral reforms—providing for absentee ballots on demand, early voting, automatic voter registration, same day registration, and so on. This was not a close vote or a decidedly partisan one, but instead one supported by voters throughout the state, and supported by county officials, Republican and Democratic alike.
It also seems worth noting that we just held a huge election in the middle of a pandemic during which there was tremendous participation. Nationwide, election officials and voters overall did a very admirable job under very difficult and ever-changing circumstances. There’s plenty to be unhappy about but we shouldn’t lose sight of that accomplishment.
Blight: The 2020 election is always going to be there as a marker of incredible mobilization. Biggest turnout in half a century or more. But we shouldn’t lose sight of the fact that a lot of that turnout came as a vote against Donald Trump. To me, here’s the difference between then and now. In the early aughts, when the Bush administration launched their project on “ballot integrity” and voter suppression, seven of their own lawyers quit because they couldn’t find any fraud and they couldn’t live with themselves. We don’t have a Republican Party now that does that.
Lassila: But what about everyday Republicans, people who aren’t leaders and who aren’t watching or reading untrustworthy sources—how do they feel about voting and about their party?
Hacker: Polling suggests that, as Ellen was saying, many Republicans support the For the People Act—a voting rights and electoral reform act, with other reform provisions—and the John Lewis Voting Rights Act. There is majority support, and sometimes very large majority support, for most of these provisions.
So it’s really important to remember that when we talk about explicit minoritarian thinking, we’re talking about an intense minority. It’s probably a majority of the Republican-identifying electorate—but it’s certainly not a majority of the electorate.
But David hit the nail on the head when he said we’re in a negative cycle, produced by the growing extremism of Republican elites, and the degree to which those elites—and allied organizations like extremist media—are stoking outrage over this putatively stolen election. Trump has always been a politician who wielded a “with me or against me” loyalty-test politics. To be a member in good standing, Republican Party elites have to accept, or at least pretend to accept, that the 2020 election was stolen.
This has become a simple, powerful, and dangerous feature of contemporary GOP politics. I recently saw some polling showing that voters in both parties have fear about the other party’s threat to them. But that fear is much more intense among hardcore Republican voters. Fear and threat are very dangerous emotions in politics.
Let’s put this in the biggest context. As David said, democracy depends on parties being willing to lose elections. And what we’re seeing in the US is more and more unwillingness on the part of Republican elites to accept that the system is free and fair, and if you lose, you lick your wounds and come back and contest the next round.
Blight: Sometimes you need a number to throw at people. The voter fraud idea really is the big lie. It’s been going on for years and years and years. The Pew Research Center has a number from a study that covered one billion votes—it may have been eight or nine general elections—in which they counted all the votes and all the fraud cases they could find. It came to 0.00006 percent fraud cases in one billion votes. If you put all those billion votes in the ocean, you couldn’t see the fraud. It barely ever exists. But it’s the product of an enormous political machine. “Voter fraud” is simply a strategy. It’s not a reality.
Hacker: I would add that our country is experiencing a massive demographic shift, and at the heart of the anxiety and anger embodied in these false claims of voter fraud is a fear about white Americans losing power in a multiracial society. I want to be clear that there are a lot of white Americans who welcome a multiracial democracy. But we should understand that this is a really difficult transition we’re going through.
My optimistic view is that we weather this storm and we make the transition. And I hope the electoral mechanism we’ve been discussing can also work to encourage acceptance of the transformations taking place in our country, and therefore create a more multiracial Republican Party alongside the current multiracial Democratic Party—so that both parties see themselves as competing for a wide range of voters. But we’re not there yet. I think that’s really at the heart of the conflict we face today.
My optimism is also based on something we’ve brought up but haven’t talked about explicitly: namely, there’s widespread recognition that these challenges to our free and fair elections are taking place at the state level, and Democrats have a pretty aggressive and bold agenda for reform. If we were a parliamentary political system, in which parties that won could push through their agenda easily, we would have already passed big reform legislation. It’s an open question whether or not serious legislation will be passed to address our voting laws—but still, it’s a real prospect and a recognized problem in a way that wasn’t true 10 or 15 years ago.
Blight: I want to add some more hope. We get to teach some of the best students in the world, and I put some of my hope in young people. They still don’t vote in large numbers—I’d like to whack them on the head when they don’t vote—but they’re our hope for a changing era. How many years are they going to be willing to live with this increasing minority rule—with, arguably, these two most undemocratic institutions, the US Senate and the Electoral College—before they simply rebel against the small percentage of the country that has control over the US Senate? Before there’s a true revolution against that eighteenth-century institution called the Electoral College?—which in my view is the most ridiculous thing in the Constitution that has survived.
Branch: We learned in grade school that the arc of American history has been the ever-expanding franchise, starting out with property-owning white men and growing from there. I’ve since learned that it’s more in and out and up and down. Where do you see this moment we’re in now?
Blight: Americans generally cannot get over the idea that somehow our history is supposed to be progressive. But the arc of history doesn’t just bend toward justice. Sometimes it bends toward justice and sometimes it really bends the other way.
It’s a disservice, honestly, to teach young people that this is the country where things are always going to get better. We had a Civil War. We had a Great Depression. We had the ’60s and its profound turmoil, when we lost in Vietnam.
And 9/11 changed us in some ways forever. Our history is punctuated with as much fracture and tragedy as anyone else’s.
The history of voting rights is a classic case. In the 1860s, human rights were expanded practically overnight as never before, by the Thirteenth, Fourteenth, and Fifteenth Amendments—flawed as they may have been, especially the Fourteenth. It was the most optimistic time you could imagine for this idea of the enhancement of American liberty. It only took the next half-decade for most of that to be crushed. The 1960s brought a revolution in the Constitution again—the Civil Rights Act and many, many other rights acts that followed from it. The ’70s brought a reaction; Reagan ran against all of that and won big time, and it changed modern conservatism. It’s always action and reaction in our political life.
Katz: It is easy to feel discouraged by our present trajectory and by the many onerous measures pending in or being enacted by so many state legislatures. And yet, some obstacles curiously have a way of mobilizing people. COVID provided a shock to the electoral system. It changed the mechanics of how we vote and how we think about voting. It forced us to consider far more carefully how we were going to cast our ballot, to make a plan to do so, and to follow through. Nearly 160 million people did just that. Sure, there’s tremendous pushback now against that mobilization—the new-found opposition to mail-in ballots, new efforts to facilitate partisan manipulation of the counting and certification process. There is good reason to be alarmed about all of this, but also good reason to think the pushback will have limits. Many of the changes implemented during the 2020 election will last, and the system will be the better for them.
Branch: Do you have a sense of how the US compares with other democratic nations in terms of accessibility of voting?
Hacker: National election experts have long argued that countries that make it easier to vote have higher levels of turnout. In the US, states that make it easier to vote have higher levels of turnout. But the US has always been on the more restrictive side of that range. There are countries that actually make voting mandatory—though in most cases there’s no penalty associated with not voting—and they get really high levels of participation. But even countries that don’t have mandatory voting but nonetheless have national voter registration (automatic voter registration, in the sense that you don’t have to opt in) and voting on days that don’t conflict with work have much higher levels of turnout.
There’s also a point many people don’t recognize: America’s electoral system is pretty damn complicated. We have a lot of elections—a lot of elections—and frequent ones, by international standards. So there are many cognitive demands on American voters, on top of the logistical challenges. To me the most important part of the reforms being considered in Congress are those that would essentially make it much, much easier to register and much easier to vote. Some people, including justices on the Supreme Court, suggest that voting is super easy. But ask anyone who had to wait for hours outside the polls in cities that had closed many polls or understaffed them in 2020, and you’ll see otherwise.
Branch: Is there an argument to be made that voting shouldn’t be easy—that voters need to demonstrate a commitment to the process?
Hacker: I’m not aware of any strongly articulated philosophy that both accepts the equality of human beings and argues that we should make it harder for people to cast a ballot. This kind of argument isn’t about trying to weed out voters who have less civic commitment or knowledge. It’s about trying to weed out voters who are vulnerable to these kinds of measures. They may be voters who are poor or voters who are concentrated in urban areas or voters who are non-white.
And I don’t think there’s any theory of democracy that says it’s a good thing for one party to have a systematic advantage in the electoral process. After all, it’s the prospect that any party could lose that really is the secret sauce of a well-functioning democracy—because it encourages parties to try to respond to voters’ wishes. There’s lots of debate about lots of aspects of democracy, but not much that I can see that argues that some voters just don’t have what it takes to be trusted with the ballot. That is a discredited position. And that’s what makes it so striking that we’re starting to hear arguments that echo that long-discredited claim.
Katz: For at least a dozen years, states have been given license to make voting more difficult for some voters so long as their rules do not wholly preclude voters from casting ballots. States may create obstacles that some voters will not overcome, and may require those who do to commit substantial time and other resources to traversing them. For many voters, casting a ballot is not easy. The difficulties are, too often, manufactured by lawmakers who promote them precisely because of their impact. That should be a discredited approach, but, unfortunately, it is not.
Blight: It can be debated that Frederick Douglass believed that the right to vote was right up there with first principles in the Declaration of Independence—life and liberty itself. He called the right to vote the “wall of fire” around all other rights. If you don’t have that right, you can easily lose all the rest.
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