2022 midterms

The Issue of Issue 2

Election Law Society · January 9, 2023 ·

By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections.

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other statesand some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.

Ranked Choice Double Header: Alaska’s Move to Rank Choice Voting & the Summer Special Election

Election Law Society · December 12, 2022 ·

By Margaret Dupree

Alaska’s new ranked choice voting system is experiencing a double-header in 2022. In 2020, Alaskans passed Ballot Measure 2, which created the ranked choice system for general elections, while maintaining a single choice system for primaries. Alaskans still vote for the one candidate of choice in primaries, but in general elections they rank the candidates on their ballots. If one candidate receives more than 50% of the vote in the first round of calculations (i.e., they were the “First Choice” candidate for more 50% of voters) the vote tabulation stops and does not move to a second round. If no candidate receives more than 50% of the vote after round one, the candidate with the least votes is eliminated, and the ballots of the voters who chose that losing candidate are recounted using their second choice. This process repeats until a candidate has more than 50% of the vote.

Alaskans voted for the measure during the 2020 presidential election by a margin of 50.55% to 49.45%; turnout for the 2020 election in Alaska was 60.67%. Despite litigation challenging the implementation of the voting system, the Alaska Supreme Court upheld the narrowly-passed ballot measure in early 2022, making it the voting system for the 2022 midterms. However, due to the death of Rep. Don Young in March 2022, ranked choice voting was implemented even earlier than the midterms to fill the at-large seat in August for the remainder of his term.

While many other municipalities across the United States use ranked choice voting, Alaska is only the second state in the nation to implement it; Maine implemented ranked choice voting beginning in 2018. Advocates of ranked choice voting argue that the system results in more representative outcomes, and helps decrease negativity in election cycles. Another benefit of ranked choice voting systems is that it prevents a candidate winning with only a plurality of voters, as opposed to a typical first-past-the-post system which can result in the winning candidate having a minority of the vote in contentious or crowded elections. However, there are critiques that arise, principally that the system is complicated, and that in a polarized political climate, voters will not want to rank candidates. Especially in the current political climate where some Americans and political candidates deny the 2020 election results, the roll out of a new voting system in Alaska over two elections could highlight whether changing voting systems will help temper partisanship and increase voter trust, or whether voting changes will be vulnerable to election denial and distrust.

The Alaska special election results seem to demonstrate both how a change in voting systems can result in surprising victories and be vulnerable to partisan motivations. At the end of August, Democrat Mary Peltola won the special election after voting moved into a second round. At the end of the first round, Republican Nick Begich was in third and was cut from the race. His voters’ second choices were then tabulated, and while Republican Sarah Palin had more of those than Peltola did, enough of Begich’s voters ranked Peltola second, pushing her past the 50% threshold. Peltola is the first Democrat to represent the state since 1972, a state that has voted for the Republican presidential candidate 93.8% of the time since 1960, and 100% of the time since 2000.

While a sizable majority of Alaskans supported the voting system, and 66% of voters actually ranked candidates in the election, prominent politicians have called into question the legitimacy of the voting system, claiming that it is a system that benefits the Democratic Party. Notably, Arkansas Senator Tom Cotton tweeted that “60% of Alaska voters voted for a Republican, but thanks to a convoluted process and ballot exhaustion—which disenfranchises voters—a Democrat ‘won.’” This kind of political criticism could hardly be unexpected, especially in the current political climate. However, the criticisms come at a vulnerable time for the electoral system in Alaska; if voters believe these claims are accurate, their trust that their vote counts or that their election laws are fair will decrease. Voters across the U.S. show a decrease in confidence in the democratic system. Distrust in the fairness of election laws and systems is dangerous for democracy, and new changes like those in Alaska are perhaps the most vulnerable.

The 2022 Alaska midterm election in November is the same cast of candidates as the special election. It will be interesting to see if the attacks and critiques on the system will result in fewer Alaskans participating or adhering to a system that is theoretically meant to boost confidence in their election system. If fewer voters rank candidates on their ballots (i.e., opt to pick only one candidate like a traditional ballot), or even decide not to vote at all, it could indicate that partisanship is still a strong factor in voter choice, and that the efforts to ameliorate polarization and distrust are up for a difficult battle.

Alabama, Amendment 4, & the 2020 Election

Election Law Society · November 18, 2022 ·

By Devin Carter

On November 8, the state of Alabama asked voters to consider an amendment to its constitution, which the state hopes will protect the integrity of its elections. The amendment in question, known as Amendment 4, would require any changes to the state’s election laws to be enacted at least six months prior to the next election in order for those changes to apply. Amendment 4 was proposed in response to the 2020 presidential elections, which were rife with controversy from the numerous changes to election law and procedure that took effect shortly before voters took to the polls.

According to State Representative Jim Carns (R), the proposed amendment is designed to ensure that the general public can have greater confidence in the integrity of the state’s election system. According to Carns, this sort of measure would favor the state’s minority party, because it would prevent the majority party from altering election rules in their favor in the time immediately preceding an election. Despite Carns’s enthusiasm, other state officials are more skeptical about Amendment 4. Representative Ralph Howard (D), for example, argued against the proposed amendment in the Alabama House of Representatives by claiming that it would limit the state’s ability to modify its election laws in the event of a second pandemic. Another representative, Mary Moore (D), argued that the proposed amendment was one of the numerous bills Republican-controlled states have been attempting to pass following their defeat in the 2020 presidential election, expressing skepticism towards Carns’s claim that the amendment would favor the minority Democratic Party instead of Alabama’s Republican majority.

The underlying rationale of Amendment 4 can be traced back to the Purcell principle, which amounts to an argument that courts should refrain from changing election rules during the time that immediately precedes an election. Federal courts have relied on the Purcell principle when they have stayed decisions made by lower courts, which would have otherwise changed a state’s election laws and procedures shortly before an election.

The 2020 election was rife with Purcell concerns, particularly after multiple states changed their election laws in response to the COVID-19 pandemic. Twenty-nine states ultimately took measures that expanded voting access in the 2020 election, including the expansion of mail-in voting access and early voting. Many of these changes were implemented through executive orders and local election official action, believed to be justified as necessary due to the nationwide pandemic.

There was subsequently a significant amount of litigation targeting these eleventh hour changes to election procedures; one of the more pervasive arguments against those changes was that they usurped the authority of the state legislature to set the manner of elections. Following his defeat, former president Donald Trump filed numerous election challenges that asserted that the 2020 election was fraudulent, using many of the last-minute changes to support his argument. Despite there being no evidence of widespread fraud in the 2020 elections, many Republicans echoed Trump’s rhetoric.

Thus, while Alabama’s proposed amendment might have originated from a sincere desire to strengthen and uphold public confidence in the state’s election outcomes, it is also possible that this amendment would be used to ensure that the Republican Party of Alabama can keep a stranglehold on the electoral system and hold onto the levers of power in the state. Alabama Democrats expressed these concerns when they voiced opposition to the amendment. Regardless of the ultimate motive behind the amendment, there is little doubt that the proposed change to Alabama’s election law is a direct result of the immense tensions that arose from the 2020 election, which continue to cast a long shadow over the country’s electoral systems.