By Sonia Gill, ACLU Senior Legislative Counsel
President Trump has assailed the right to vote during his entire time in the Oval Office. Trump’s term was bookended with baseless claims of voter fraud, an unoriginal yet effective trope that has been used throughout our country’s history to erect barriers to discriminate against Black, Hispanic, and Native American voters. Trump’s goal is obvious: to intentionally weaken public trust in our elections and embolden voter suppression efforts. Manufactured claims of fraud to explain away Trump’s loss of the popular vote in the 2016 election led to the creation of a sham commission that eventually disbanded after failing to provide any factual evidence to support Trump’s preposterous statements that millions of people had voted illegally. And following his loss of the 2020 presidential election, Trump has led a rabid assault on American democracy, which has eroded the public’s faith in the outcome of the election and catapulted efforts to subvert the will of voters by overturning the results of the election.
Undeniably, there are problems with our democracy that must be fixed. But these issues do not arise from purported voter fraud. Rather, they are the legacy problems of our republic: systematic efforts by politicians to erect voting barriers and to discriminate against voters of color to tip the balance of power. These problems are enduring, persistent, and verifiable.
In Georgia and Arizona, the 2020 presidential election demonstrated the power of voters of color to disrupt entrenched political power structures, a development that has unnerved politicians who rely on low voter turnout to maintain the status quo. Next year will also mark the first national redistricting cycle since the Supreme Court gutted Section 5 of the Voting Rights Act, which required state and local governments with the worst records of voting discrimination to preclear voting changes with the Justice Department to ensure the changes did not racially discriminate. For the first time since 1965, congressional, state, and local government legislative districts will be drawn without the protections of Section 5 to prevent state and local officials from diluting the rising political power of minority voters.
It is imperative that President-elect Biden’s administration take ambitious action to protect the right to vote and improve the future of American elections under our existing federal voting laws and to champion new federal protections for voting rights. Here are the ACLU’s key recommendations:
Executive Action to Enforce Federal Voting Rights Laws
Designate Special Assistant U.S. Attorneys for Voting Rights
Direct the Attorney General to designate a special Assistant U.S. Attorney for voting rights in every U.S. Attorney office to work in coordination with the Civil Rights Division to investigate and enforce potential violations of federal voting rights laws. Multiplying the Justice Department’s capacity to enforce federal voting rights laws in this way will — in the absence of Section 5 — provide the critical federal oversight of local redistricting efforts to ensure such actions are not racially discriminatory, and will also help protect against other official acts impacting the right to vote, such as polling place closures and voter purges, so these local changes don’t flyer under the radar.
Upgrade Federal Voter Registration Services
Consistent with the requirements of Section 7 of the National Voter Registration Act (NVRA), President-elect Biden should direct federal agencies to provide voter registration services as part of their regular services to members of the public, agencies such as the Department of Veterans Affairs, Indian Health Service, and Department of Education. State agencies are already required to provide these services under the NVRA. The Biden administration should also direct federal agencies to consent to designation as a voter registration agency if requested by a state, pursuant to Section 7(a)(3)(B)(ii) of the NVRA.
Improve Voter Registration and Access to the Ballot for Voters with Disabilities
Voters with disabilities continue to be one of the most underserved groups of voters by our electoral system, which is the reason why these voters consistently face the greatest obstacles to casting a private and independent ballot and have among the lowest participation rates. The Biden administration can direct federal agencies newly responsible for providing voter registration services to ensure such services are fully accessible for people with disabilities, direct the National Institute for Standards and Technology to produce recommendations for making the federal voter registration form provided online fully accessible for people with disabilities and to analyze barriers with voting technology and absentee voting, and direct the attorney general to prioritize enforce actions of voting rights violations against voters with disabilities.
Help Protect Voting Rights of Eligible or Soon-To-Be Eligible Incarcerated Individuals
The Biden administration should direct the Bureau of Prisons and Federal Marshals Service to provide voter registration services and information to eligible incarcerated people and allow third-party voter registration organizations to help register those who are eligible, consistent with relevant federal and state laws. Roughly 125,000 people are currently incarcerated in custody of the Bureau of Prisons. These people, if eligible, should be provided an opportunity to register to vote. Additionally, the Bureau of Prisons should provide voter registration information and services as part of release services.
Improvements to Vote.gov
Vote.gov is a place where every qualified voter should be able to easily register to vote and access state-specific voting information. The Biden administration should direct the General Services Administration to improve and modernize Vote.gov, including by ensuring that it adopts a user-friendly interface of the federal voter registration form available online, is compliant with federal disability rights laws and accessibility standards, and is accessible in different languages.
Improve Absentee Voting for Military and Overseas Voters
The 2020 election showed how important mail ballot programs are to administering safe and reliable elections, a process especially relied upon by military and overseas voters. Requiring the Department of Defense and Military Postal Service to create a single, uniform end-to-end ballot tracking system would provide all military and overseas voters the ability to track their ballots in one place and give these voters increased confidence that their ballots are received by their local election official. The secretary of Defense should also examine and recommend a process for automatically registering enlisted service members to vote, with the consent of the potential voter, since the Department of Defense has current and reliable registration data for these voters.
Help Advance Legislation to Protect Voting Rights
Voting Rights Advancement Act
In 2013, the Supreme Court gutted the Voting Rights Act in Shelby County v. Holder by effectively putting a stop to the preclearance process. Vital protections against voter suppression and discrimination were consequently weakened, and voting discrimination was unleashed on the nation’s minority voters unlike anything seen in decades. The Voting Rights Advancement Act will restore and update necessary protections for minority voters to ensure legal remedies are available to stop discrimination before it impacts voters.
Uniform Federal Standards to Protect the Right to Vote
Baseline federal rules to reduce or eliminate needless barriers to voting are long overdue. Federal law must require an option for every voter to be able to vote by mail and expanded early in-person voting opportunities. Expanding access to early voting and voting by mail will let voters avoid crowds at polling locations and provide a convenient and accessible voting experience that will improve participation rates. The ACLU also supports federally mandated voting modernization policies that would require online registration, same-day registration, and automatic voter registration.
Federal Funding for Elections
The federal government should provide the funding necessary to ensure our election infrastructure is reliable, secure, and resilient. National elections should be reinforced with federal funds like any other important infrastructure essential to our society, including roads and bridges. Elections in 2020 also demonstrated the dedication and commitment of local elections officials to ensuring people could vote safely and reliably; these local officials should be able to access federal funding directly and without having to jump through bureaucratic hoops.
Accessible Voting Act (AVA)
The AVA would establish new federal accessibility requirements to improve access to voting and voter registration for individuals with disabilities and older Americans. The legislation establishes specific procedures, technical assistance, and guidance to election administrators and voters alike and increases federal and state support to help all Americans, regardless of disability status, vote privately and independently.
Washington D.C. Admission Act
This bill would grant statehood to the residential areas of the current District of Columbia as the state of Washington, Douglass Commonwealth, and defines the reduced federal territory that would continue to serve as the seat of the federal government, consistent with the U.S. Constitution. D.C. statehood would give the more than 700,000 residents of Washington D.C. full voting representation in Congress with two senators and one member of the House of Representatives. The people of Washington D.C. want statehood and with it the guarantee of the full rights and privileges that come with citizenship; passage of the Washington D.C. Admission Act is simply the right thing to do.
26th Amendment Enforcement Legislation
Fifty years ago, Congress in a broadly bipartisan manner expanded the right to vote to Americans 18 years and older and outlawed age-based voting discrimination. The promise of the 26th Amendment remains unfulfilled, however, as low youth voting rates continue to plague political participation by this block of voters. Young people, who are increasingly voters of color, also continue to be targeted by voter suppression tactics. Congress is empowered to enforce the article by appropriate legislation, and should act accordingly.
The year 2020 proved to be a reckoning for our democracy — as voters turned out in record numbers to vote by mail, early, or on Election Day. The Biden administration has an opportunity to make historic gains in our country’s continuing quest to finally secure the fundamental right to vote for all our citizens.