It’s tempting to dispense with precinct election results when a jurisdiction switches to vote by mail (VBM). But Maryland shouldn’t do it.
Voting Rights Act Compliance
The most important reason by far is to assure that redistricting plans around the state comply with the federal Voting Rights Act (VRA). Some mistakenly think that the VRA is longer in force since the Supreme Court’s decision in Shelby v Holder (2013) suspended federal preclearance of new voting and election laws previously required under Section 5 of the VRA for covered jurisdictions.
Section 2 nevertheless remains in force and continues to prohibit discriminatory redistricting practices. In any case, Maryland has never been a covered jurisdiction that had to submit its election practices to federal scrutiny under Section 5.
Precinct election results are critical evidence for both bringing and defending redistricting cases under Section 2 of the VRA. Matching race and ethicity data with precincts election results allows the application of statistical methods to estimate turnout rates and candidate support levels by race and ethnicity. These estimates are critical for both bringing and defending challenges under Section 2.
There is really no substitute for this approach. Polling data is unavailable for all but statewide contests and even then it cannot be broken down reliably to legislative or county council district levels. Consequently, precinct election data remains vital to make it possible for courts to adjudicate Section 2 cases properly.
In order to win a redistricting challenge under Section 2, plaintiffs must satisfy a three-prong test outlined by the U.S. Supreme Court in Thornburg v Gingles (1986). The minority must be: (1) sufficiently large and geographically compact to constitute a majority in a single-member district; (2) politically cohesive; and (3) racial-bloc voting usually defeats the minority’s preferred candidate.
The last two prongs rely on having estimates of voting behavior by race. In the absence of precinct election results, these will be impossible to generate. While results from earlier years will remain available, results from the most recent elections are considered the most valuable since they are closest to the current situation.
State defense attorneys might welcome making it more difficult to bring voting rights challenges. But it hardly seems the right approach for a state committed to racial equality and compliance with federal law. Choosing not to produce precinct election results for this reason could even become evidence of racially discriminatory intent.
Fortunately, VBM is not a barrier to producing precinct election results. It is little different than distributing early vote back to precincts. Undoubtedly, it takes more effort but longstanding VBM states do it. Maryland can look to these models for guidance as they continue to prepare for a different Fall election than expected.
The state claims that it cannot produce them for June – a claim that deserves close scrutiny. Lawmakers must continue to press them to change this decision for June and November and to make sure that our elections remain safe and top notch.
Preventing and Finding Fraud
Beyond the Voting Rights Act issues, precinct election results remain extremely valuable for fraud detection. Political scientists and statisticians have developed methods to sniff out outcomes that are highly unlikely absent fraud. They are equally useful for undercutting irresponsible and baseless fraud claims from the Left or the Right.