By Scott Downes
On a sunny Friday afternoon in mid-March at the Colorado statehouse, newly elected Gov. Jared Polis signed the National Popular Vote Act into law. There were no cameras or media or assembled crowd, and little fanfare or pomp whatsoever. But it was a quiet step in a long march toward more equitable voting rights.
“Equal representation is not a red or blue issue—it is a way to ensure every American and every Coloradan has an equal say about who leads our country,” said the bill’s sponsors in a joint statement.
In passing this legislation, Colorado joined 13 other states as part of the National Popular Vote Interstate Compact, which is an effort to ensure that whichever presidential candidate wins the national popular vote also wins the Electoral College.
“The popular vote empowers the individual voter, no matter where that voter lives, and forces our politicians to consider the needs of their whole constituency, not just the few,” said Colorado Secretary of State Jena Griswold at a January legislative hearing on the measure.
Though the compact does not take effect unless states that total 270 electoral votes enact the legislation as well, the 14 states plus the District of Columbia that have enacted it already total 189 electoral votes, or 70 percent of what’s needed. The desire for such a change provides a meaningful reminder that even foundational aspects of the U.S. political system are rooted in racial inequities and historical barriers to power and representation.
The Electoral College is typically understood as an effort by the constitutional framers to balance the influence of small and large states.
“The truth is less noble,” wrote Jamelle Bouie in The New York Times, following Polis signing the compact. “The Electoral College was actually a workaround meant to satisfy a divided Constitutional Convention at the cost of actual functionality.”
Southern states were populated by significant numbers of slaves, who did not have the right to vote at the time. “The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes,” noted James Madison. In other words, Madison was acknowledging that southern states would have less influence in a national election because the northern states had a larger population overall, and because of the large population in the South who were not permitted to vote.
The Electoral College was formulated as a compromise. Under this proportional representation system, the allocation of electoral votes allowed states to count slaves as three-fifths of a person (otherwise known as the "three-fifths clause"). But slaves could not vote.
“Under a provision that counted slaves as three-fifths of a person for purposes of representation in Congress, Southern slave states gained outsize influence in selecting the president,” wrote Alex Cohen for the Brennan Center for Justice. “The system has endured despite the expansion of suffrage and the abolition of slavery.”
Beyond the racial barriers rooted in the Electoral College, a litany of other problems persist. Two of the last three presidents were elected without winning the popular vote. A Washington Post analysis suggests that several states, including Colorado, are currently underrepresented by the Electoral College based on population and votes cast. And, according to a National Public Radio analysis, it is possible to win the presidency with as little as 23 percent of the national popular vote.
“How did we get such a system?” asked Paul Finkelman, a visiting law professor at University of Saskatchewan in Canada, in a 2002 white paper titled The Proslavery Origins of the Electoral College, which he authored for a symposium following the controversy-plagued 2000 presidential election.
“We can only wonder how American history might have played out if the founders had developed a method of choosing the president that was not weighted in favor of slavery,” Finkelman wrote. “Perhaps it is now time to rid ourselves of the last constitutional vestige of the peculiar institution: the electoral college.”
Colorado Election Laws
While the historical context of voting is fraught with inequities, Colorado is fortunate to be one of the leading states in the country when it comes to its voting system and voter turnout.
The state is consistently held up as a model election system for its policies, processes and turnout. In 2018, Colorado ranked second behind only Minnesota in voter turnout (the percentage of voting-eligible population that casts a ballot). And amidst fallout from the 2016 election hacking scandals, Colorado earned a reputation for election security and safety.
“If people perceive a risk, they're less likely to participate in voting,” former Colorado Secretary of State Wayne Williams told The Washington Post in May 2018. (Williams, a Republican, lost his reelection bid to Griswold, a Democrat, in November.) “We want to protect people from that threat, and we want to people to perceive that they are protected from that threat.”
Much of the credit for Colorado’s election system is due to the Voter Access and Modernized Elections Act, which was signed into law in May 2013 and designed to make voting and registering to vote easier and more efficient. This led to mail-in ballots being provided to all registered voters, extended early voting (including on Saturdays), 24-hour drop boxes for voters to submit ballots, in-person voting centers, and voter registration being available up to and including Election Day.
“There are always improvements we can be making to the system,” said Amanda Gonzalez, executive director of Colorado Common Cause, a nonpartisan group advocating for increased government accountability. “We have a system that really is a model nationally, and we’re continually looking for ways to improve it.”
Colorado’s policies and processes all matter because communities that have been historically disenfranchised from voting and democratic participation are largely the same communities facing a variety of systemic barriers that affect their health, income and overall well-being.
Across the country, poll taxes, literacy tests, intimidation tactics, violence and other voter suppression efforts have historically targeted people of color, people with lower incomes, people less likely to own homes or property, people with disabilities, immigrants and younger people—all to dissuade or prevent them from voting.
Election data and analysis of who does and does not vote help contextualize the effects of barriers to voting, both historically and today. Following the 2016 election, Pew Research published a study showing that people who did not or were not able to vote were disproportionately people of color, people with lower incomes, younger people, and people with lower educational attainment.
More recent efforts in other states to discourage voting, such as purging registered voters from rolls, reducing available polling locations, strict voter identification laws, and signature matching, serve the same discriminatory purpose.
Recent studies dispute the degree to which voter identification laws affect actual voter turnout, though some evidence suggests such measures can skew results in close elections by disproportionately dissuading people of color and people with lower incomes from voting.
Though the effect of these kinds of laws might be debatable, there’s evidence of discriminatory—and overtly partisan—intent behind some of these measures. A 2016 New York Times article documented numerous instances in Wisconsin and Pennsylvania where elected officials and political operatives stated the aim of dissuading or preventing people of color from voting. And in striking down a voter suppression law in North Carolina, the U.S. Court of Appeals for the 4th Circuit stated the law was “targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.”
Beyond these barriers, the feeling some people have that their vote might not matter or count threatens to further discourage democratic participation.
“A lot of negative rhetoric around the integrity of the elections are really detrimental to voting rights, and discourage people from believing in the system and trusting their votes,” said Salvador Hernandez, civic engagement coordinator for Mi Familia Vota, a national organization promoting Latino participation in the political process. “Those are serious threats. More than anything, they discourage people from participation or create mistrust.”
“The more people who participate, the better the outcomes for our communities are going to be,” Gonzalez said, “because we know that our democracy is actually better, stronger and more responsive to its constituents when we are all participants.”
Researchers with the University of Wisconsin echoed the reciprocal connection between voting and well-being.
“Research shows that the healthier you are, the more likely you are to cast a ballot,” wrote Barry Burden, a professor of political science and director of the university’s Elections Research Center. “When a person is involved with civic life, they are social, efficacious and participating.”
“When somebody feels like they matter in their government and their community, that they’re a decision maker, there’s something empowering in that,” said Gonzalez. “We know that is good for public health.”
A Look Back at 2018
According to Colorado Common Cause, in 2018 voters in Denver took an average of 13 minutes to complete the ballot, though some people took up to 90 minutes to vote. These challenges reflect some of the trade-offs that come with a ballot initiative process.
“On one hand, [ballot initiatives] are a really great way for people’s voices to be heard... people can bring the issues they care about to the ballot,” said Gonzalez. “The downside is that the language is often confusing. Some of the ways that language goes into the ballot is constitutionally mandated. And I think people find the tax questions, which are regulated by TABOR, particularly confusing.”
Even the tax ballot questions being in all capital letters is mandated in the state constitution.
According to a readability formula reported on by The Colorado Independent, a voter needed 22 years of education—roughly equivalent to a doctorate degree—to fully understand Colorado’s 2018 ballot. The same formula was used in an expansive 2009 ballot study showing that, among all 50 states, Colorado had the second-most difficult ballot to understand over a 10-year span from 1997 to 2007.
The language barriers are even more complex for voters that may need a ballot in a language other than English.
Hernandez recounted the story of an elderly couple in Weld County who needed assistance to understand the Colorado ballot. “They spoke English at a basic level—but since the language was so complicated on the ballot, they did not know what they were being asked to vote on.”
According to the nonpartisan voter protection program Just Vote Colorado, four counties—Conejos, Costilla, Denver and Saguache—met the threshold for bilingual ballots in 2018 based on Census data. Two others, La Plata and Montezuma counties, were required to provide election materials in the Ute language.
Related to this are persistent concerns over the federal government’s intention of including citizenship as a question on the 2020 Census, and a predicted chilling effect it could have for some non-English speakers in terms of participation. The issue, which is now being challenged in court, could have significant implications not just for the language availability of future ballots, but also for redistricting and congressional representation.
“People don’t think about our Census as connected to voting rights,” said Gonzalez. “We take the Census for granted.”
According to The Colorado Sun, a small number of voters across the state experienced a smattering of other minor issues in the 2018 election, ranging from internet outages, to ballot drop boxes being full, to voters receiving incorrect ballots.
In future elections, the question for Colorado is not just whose voices go unheard when voters face these barriers, but also why it matters and what effect it has on communities and families across Colorado.
During the 2019 legislative session, Secretary of State Griswold called out differences in Colorado's election system when compared to recent voter suppression efforts in Georgia, Florida and North Carolina. Griswold also prioritized voter access in supporting a bill to expand automatic voter registration (SB 19-235), which was approved by the legislature. Another election bill (HB 19-1278), also pending the governor's signature, would take a data-driven approach to increase ballot drop-boxes and help reduce lines in voting centers.
2020 and Beyond
With or without the Electoral College in place, attempts to further undermine the protections of the Voting Rights Act will persist. According to 2018 analysis by the Brennan Center for Justice, 31 state legislatures introduced 99 bills in the span of a year to decrease access to voting. And since 2010, 26 states actually implemented voting restrictions.
Still, there are signals that voting rights are and will remain a core principle in the U.S. political system, and free and fair elections are still the cornerstone of democratic participation.
In the 2018 elections, Maryland, Michigan and Nevada approved initiatives making it easier to register to vote. Colorado and Missouri both passed bipartisan reforms to the redistricting process in an effort to reduce gerrymandering. (Gerrymandering is manipulating electoral district boundaries in order to favor one party over another.) And Floridians voted to restore voting rights to 1.4 million former felons, including 500,000 African Americans.
“Voting is so powerful,” concluded Gonzalez. “When you feel like your voice is heard, when you feel like you have a say in your community and the people who are running it, and those systems are transparent and you’re able to understand, there’s something uniquely empowering in that.”
That the right to vote is important and powerful cannot be disputed. But whether that right can be protected over the long term and expanded for historically disenfranchised communities is less certain.