Analysis

Professor Douglas's Suggested Changes to Proposed Kentucky Voter ID Bill

Here is a quick link to Professor Douglas's memo to the Kentucky legislature.

On February 20, 2020, Professor Douglas testified before the Kentucky House Committee on Elections, Constitutional Amendments & Intergovernmental Affairs about SB 2, the proposed bill to require voters in Kentucky to show a photo identification to vote. Find his testimony here

During that testimony, legislators asked him to provide, in writing, his proposed amendments to the bill, as well as summaries of important cases and studies on the topic. 

Professor Douglas authored a memo to the legislature.

Find that memo here

Here is a summary of the five changes he is suggesting to the bill as passed by the House Committee on Elections:

1. Delete Section 1(4) on page 3 (This provision states that “The affirmation executed under this section shall be processed in same manner as an oath of voter affidavit as prescribed by Section 17 of this Act.”)

2. Section 1(1)(8)(b) (page 2): Change “inability to financially afford” a birth certificate or other documentation to “lack of birth certificate” or other documentation in the reasonable impediment provision (and related sections for absentee voters)

3. New Section 1(1)(8)(i) (page 2): Add a catch-all to the reasonable impediment provision

4. New Section 1(2)(f) (page 3): Allow for personal recognizance as a “non-photo ID” that would allow a voter to use the reasonable impediment provision

5. New Section 38: delay implementation to 2021

Kentucky's Post Election Procedure in Close Races (2019 KY Gov Edition)

Written initially in 2015 by Professor Joshua A. Douglas and Senior Editor Thomas E. Travis. Updated in 2019 by Professor Douglas and Jay Phillips

[Updated Nov. 6 with corrected information]

Kentucky’s 2019 constitutional officer election results are trickling in and it appears that the gubernatorial race will come down to the final votes. What happens next if we still don’t know a winner?

There are two levels of post-election procedures for a disputed gubernatorial election: a recanvass and an election contest.

Kentucky law allows a candidate to file a request with the Secretary of State for a recanvass within a week from Election Day. The recanvassing procedure mandates the county election boards to recheck each machine and report the figure back to the county clerk; a representative from each campaign can be present as the recanvassing occurs. In layman’s terms, this process checks to ensure the ballots were reported and added correctly. The recanvass would happen on Thursday, November 14.

A recanvass usually sees only very modest changes in vote totals. A swing of 5,000 votes would be shocking. 

Kentucky does have a statute on recounts, but it seems the law does not apply to gubernatorial elections. There is no automatic recount in general. And the relevant statute on a candidate requesting a recount appears not to apply to gubernatorial elections. That statute provides that a recount goes before a judge in the Franklin Circuit Court -- but again, a close reading of the statute suggests that this provision does not apply in this context. [THIS PARAGRAPH HAS BEEN UPDATED WITH CORRECTED INFORMATION.]

The next step would be an election contest with the legislature. The losing candidate must file a written notice within 30 days after the last action by the State Board of Elections (this year, the last day for the State Board to certify the results is Nov. 25). The legislature would randomly select a committee of 11 members -- 8 from the House and 3 from the Senate -- to hear the contest. The committee's decision is reported to the full legislature, and a joint session of the legislature would ultimately decide the contest. 

Going into the election, both sides believed the race would depend on the last vote cast. If the race continues into the post-election processes, the legislature could be called upon to determine the winner.

Kellyanne Conway and the Hatch Act

- Jacob Sherman

Kellyanne Conway says that she is above the law, a statement the Office of Special Counsel (OSC) roundly rebukes. On June 13, 2019 the Office of the Special Counsel gave President Trump a report that outlined Kellyanne Conway’s alleged violations. Specifically, OCS argues that Kellyanne Conway—during media appearances—violated the Hatch Act.

First introduced in 1939, the Hatch Act was created to limit partisan activities of federal officials. Senator Carl Hatch, a Democrat from New Mexico, introduced the bill after “learning that New Deal–era government programs, specifically the Works Progress Administration, were using federal funds overtly to support Democratic Party candidates in the 1938 elections.” To keep up with the times, the Hatch Act has been amended a few times.

The latest amendment, in 1993, allowed civil servants to participate more in the political process. However, this amendment did not change the core function of the law. Certain federal employees are still prohibited from engaging in political activity “while on duty.” 5 U.S.C. § 7324. The core of the allegations surround activity while Kellyanne Conway was in a Fox News interview.

During these interviews, OCS alleges that Kellyanne Conway commented on 2020 political candidates. These interviews—given in her official capacity—were used to support republican or denigrate democratic candidates in the 2020 election. For example, the report details a Fox News interview on February 1, 2019. In that interview, Ms. Conway details questions she would ask presidential candidate and Senator Cory Booker. Ms. Conway alleged that, if Senator Booker was a Republican, he would be called a sexist. The report goes on to allege several other incidents.

This incident raises interesting questions. For me, the most interesting question is what advisers like Kellyanne Conway can do. Because the act was introduced to cut down on corruption, it is easy to argue that government employees should not be able to use their government position to advocate for future leaders. However, the act currently has an exemption for the President and Vice President. If the President is exempt—presumably because of the political nature of the presidency—perhaps advisers of the president should also be exempt. Advisors to the president, on the other hand, have the privilege of advising the president. They should not also get the privilege of using their position to advocate for who they want to advise next. On the other hand, the President is a unique position. It is only fair that the bully pulpit should be allowed to bully.

Trump, however, has decided against taking the OCS recommendation that Kellyanne Conway should be fired. Regardless of personal opinion surrounding Kellyanne Conway’s actions, Trump, by not firing Kellyanne Conway, is pushing debate around whether officials like Conway should continue to fall under the Hatch Act requirements.

Why Aren’t People Talking About Ranked Choice Voting?

- Joe Scherpenberg

Voters in New York City will decide on an amendment to the city charter that would make future elections for New York City municipal positions decided by a ranked-choice ballot.

A small handful of municipalities and the state of Maine for federal elections have previously adopted this system, but the Big Apple would by far be the largest population of Americans to utilize the system. [Its worth noting that Australia has been using the ranked-choice method for over a century]

Though still in its nascent stages, calls for the adoption of ranked-choice voting have grown in the past few election cycles with an eye towards reforming way Americans vote.

But what is Ranked Choice voting? In a way, it’s your vote getting a second bite at the apple. I’m going to try and do the impossible now and describe the way it works. it’s not complicated, but it is difficult to grasp just reading a description of it, so bear with me. [if you’re a visual learner like me, just watch this video]

The way it works is you mark down on your ballot which candidate you’d vote for first, then what candidate you’d vote for second, then third, etc. Tallying the votes effectively happens in “rounds,” for lack of a better word. During the first round, the ballots are counted based on their FIRST choice. Once the first round tally is finished, every ballot that chose a candidate who came in last has their first choice discarded and then their vote gets credited to whoever their second choice was. This concludes the second round of tallying. This process continues until a winner is affirmatively decided.

But why go through all this trouble? What’s the point? Some argue this would open up public offices to third parties which would help political gridlock, give people a wider and more representative selection of candidates, and reduce voter apathy associated with feelings of wasted votes. It can also improve the tenor of campaigns and avoid the feeling of a "spoiler" effect.

Whether these potential benefits pan out will be something that Election Law experts and Reforms alike will be watching closely, but New York City adopting this method would go a long way in building momentum for wider acceptance in the United States.

Democracy and Drink: Ballot Initiatives Allowing Alcohol Sales in Kentucky

- Aaron Meek

Dr. Benjamin Rush, a signer of the Declaration of Independence and civic leader in the early Republic, warned of the dangers of indulging in drink, writing: “What starts as water and wine quickly turns into punches and toddies and cordials, ending with a hopeless vortex of gin, brandy, and rum, day and night.” According to Dr. Rush, drinking leads a man to all manner of punishment, death worst of all. 20th century politicians and activists carried Dr. Rush’s aversion to spirits forward and passed the 18th Amendment, which prohibited the sale of alcohol. Even after the repeal of prohibition, certain states and localities continue to prohibit alcohol sales within their borders.

This year, the denizens of Scott County, Kentucky are the latest to add their voice the age-old debate as they consider a ballot initiative to transform the country from a “dry” county to a “wet” county. Early returns suggest that the initiative will past. As the names suggest, “dry” counties are those which entirely prohibit the sale of alcohol, while their “wet” counterparts allow the drinks to flow. Further complicating matters, certain Kentucky counties designate themselves as “moist”, meaning that they generally prohibit alcohol sales, except in certain circumstances (such as the sale of wine or beer at restaurants). Such laws often lead to odd situations where the citizens of certain Kentucky counties may have to drive into town or cross the road in order to enjoy a beverage. 

This issue is particularly relevant in Kentucky. On one hand, as early as 1990, more than half of Kentucky counties were dry. On the other hand, the growth of the bourbon industry in recent years has generated millions of dollars for the state and placed Kentucky on the cultural map. Scott County’s decision exemplifies the current trend, but the debate is surely far from over.

Partisan Gerrymandering Arrives (Again) at the Supreme Court

Zack Damron

On Friday, the Supreme Court let the nation know that it was ready to enter into the fray when it comes to partisan gerrymandering…at least, that’s what scholars and experts are hoping for (well, maybe some of them).

These new cases out of North Carolina and Maryland are actually not very new at all. North Carolina has had some major problems when it comes to gerrymandering, with infamous District 12 coming into focus numerous times under racial gerrymandering. The Court, two terms ago, held in Cooper v. Harris that District 12 must be redrawn because it unconstitutionally used a “racial target” and the “target had a direct and significant impact on the district’s configuration.” The Supreme Court summarily vacated and remanded to the District Courts in light of the ruling in Gill. In Gill, the Wisconsin Legislature adopted a map that affected the state legislative district boundaries for the area around Milwaukee and Madison. The challengers to the map noted that under the proposed map, the Republican Party would maintain a majority in the state house even though it only receives 48% of the vote. The Democratic Party would then have to receive 54% of the vote in order to form a majority. The Court held that these plaintiffs did not have the standing here to bring suit in order to strike down the map as a partisan gerrymander.

The North Carolina districting plan came shortly after the Court’s ruling in Cooper, which sought to incorporate both racial and partisan data into keeping a district, which would “maintain the current partisan makeup of North Carolina’s congressional delegation.” The challengers alleged that the new maps violated the Equal Protection Clause of the 14th Amendment and the First Amendment.

The North Carolina three-judge district court ruled first that the challengers had standing to sue, and then agreed with the challengers that the plan violated the Equal Protection Clause and the First Amendment by, according to the court, discriminating against non-Republican voters. The State filed an emergency application for a stay directly to the Supreme Court (certain election law issues may be appealed directly to the Supreme Court), which the Court granted until it decided Gill. The Court then vacated and remanded the case back to the three-judge district court for reconsideration in light of Gill. The District Court again decided that the Plaintiffs had standing to sue and concluded that the plan still violated the First and Fourteenth Amendments.

The Redistricting Committee formed the map coming out of Maryland in 2011. The challengers allege that the Commission used a so-called “Democratic Performance Index” to predict how a Democratic candidate would fair in a particular district. They also allege that the district in question (Sixth District) swung from being predominantly Republican to predominately Democratic, while the move of Republican voters out of the Sixth District into the Eighth District had relatively no impact on the way that district votes. The challengers sued based on their First Amendment rights of association.           

On the contrary, the case out of Maryland was originally decided by a one-judge District Court, which decided not to convene a three-judge panel. A three-judge panel was later convened, with the help of the Supreme Court, which ruled that the Plaintiffs had standing to sue under the First Amendment. After all of the necessary hurdles had been jumped, the District Court granted summary judgment in favor of the challengers, with the court agreeing with their “First Amendment claim that their representational rights have been impermissibly burdened by reason of their political views and voting history.”

The Supreme Court has a confusing history in deciding whether partisan gerrymandering cases can even be heard in the first place. The Court decided in Davis v. Bandemer that these particular claims are justiciable (lawyer-speak for “able to be tried”); however, no one opinion garnered enough votes to put a precise test on how much partisanship is too much when drawing maps. This fact lead Justice Scalia to argue for himself and three others, in Vieth v. Jubelirer that such claims are not justiciable because there is no set “manageable standard,” meaning that the claim is a “political question” that the Court cannot entertain. The key vote was, surprise-surprise, Justice Kennedy. Kennedy determined that the Vieth’s claim could not be heard because there was no manageable standard, BUT he stated that there is a standard out there; it is up to the litigants to produce it. A sort of an “I’ll know it when I see it” standard rears its head again. Justice Kennedy did give us a glimpse into that beautiful mind when he determined that the First Amendment may (possibly) give litigants that standard that he’s looking for. But again, he didn’t say so exactly.

Recently, the Court had an opportunity to wade through the gerrymandering thicket in Gill v. Whitford, which came out of Wisconsin. However, the Court punted on the merits by ruling that the plaintiffs did not have standing to sue. Chief Justice Roberts held for a unanimous Court that the plaintiffs here did not prove that their individual votes had been diluted due to being affiliated with the Democratic Party. In general, a plaintiff may not make a statewide challenge because this challenge is not “particularized” enough to indicate that the plaintiff’s individual rights had been violated. This gave the plaintiffs enough room to tailor their claims to meet this standard, and possibly have the merits of their claims heard before the nine-member Supreme Court.

It’s hard to know where these new cases from North Carolina and Maryland will turn out. Everyone is hopeful that we don’t have another punt like we did in Gill. Will the Supreme Court once and for all decide whether or not such claims can be heard, and if so, how far is too far to be unconstitutional? With Justice Kennedy gone, does Justice Scalia’s view that these claims can never be heard finally have enough votes to be binding law? Or, does the First Amendment provide the manageable standard to garner five votes and provide litigants a standard to use when bringing these sort of challenges? Without question, the ones to watch are Chief Justice Roberts and Justice Kavanaugh. With Kennedy out, it will be interesting to see if Roberts takes hold of the middle and provides the “swing vote” one way or the other. Justice Kavanaugh took Kennedy’s place on the bench, and no one really knows how he will vote as he never faced a case quite like this as a lower court judge.

The end of partisan gerrymandering may be nigh, but we’ll have to wait until the summer to find out.

Power vs. the People: How Maine Voters Saved Ranked-Choice Voting

By Seth Woods

The voters of Maine have spoken about how they wanted their elections to be conducted. Several times. Yet their legislators have repeatedly tried to prevent the electorate’s wishes from being fulfilled.

Since 2001, election reformers have lobbied the Maine Legislature to change the way government officials were elected in the state, by replacing the traditional plurality voting system (also known as “winner-take-all” or “first past the post”) with a preferential voting system that requires a candidate to receive support from a majority of voters. In Maine, the proposed new system was called “ranked-choice voting,” (RCV) while in other cities around the country it’s known as “instant runoff voting.” 13 cities (including Maine’s largest city, Portland) currently use RCV for local elections – though this number will increase, as voters in Memphis rejected the city council’s last-ditch effort to repeal the program before next year’s municipal elections. Maine is the first state to conduct federal elections using RCV.

Instead of only voting for one candidate in a race, ranked-choice voting allows voters to sort candidates based upon the voter’s personal preference. Candidates with the fewest first-choice votes are eliminated, and the ballots cast for eliminated candidates are reallocated to the voter’s next-best choice. The process repeats until someone is elected with a majority (50% + 1) of the votes.

For example, if a voter wanted to vote for a minor party candidate, the voter could mark the minor party candidate as their first choice and a major party candidate as their second choice (were their first-choice candidate to be eliminated). RCV limits the “spoiler effect” minor parties are occasionally accused of after close elections, and counters the claim that voting for independents and minor-party candidate is like “throwing your vote away.” RCV has also been shown to reduce negative campaigning: candidates are less likely to attack opponents when those opponents’ supporters could swing the race with second-choice votes.

This idea of ensuring every voter’s voice is heard is especially relevant in Maine, where voters are notorious for supporting independent candidates. One of their U.S. senators is a declared independent, and was re-elected with 55% of the vote. The outgoing governor was elected and re-elected in contentious three-way races, both times failing to get more than 50% of the vote. Six members of the state House were elected as independents in the 2016 election.

Ultimately, it was the voters that decided it was time to bring ranked-choice voting to the state. After more than a decade of failed attempts to pass RCV through the legislature, reformers gathered enough signatures to bring the proposal directly to the voters, which passed with 52% of the vote in November 2016. However, leadership in Augusta still had their concerns about the program’s implementation, claiming that the system would be confusing to voters and burdensome on local election clerks. Upon request of the state senate, the Maine Supreme Court issued a unanimous advisory opinion that RCV was unconstitutional in respect to general elections for state legislators and governor.

With the Court’s ruling in their pocket, the state legislature passed a law delaying the implementation of RCV indefinitely unless the law was passed as a constitutional amendment – a process that requires 2/3 support from both chambers of the legislature before it can go before the electorate. Multiple lawsuits were filed in favor and opposition to the bill, culminating in a state Supreme Court mandate that RCV be used to conduct the 2018 primary election. The governor announced he would not certify any results of RCV elections, calling ranked-choice voting “the most horrific thing in the world.”

Considering RCV had stalled in the capitol for so many years, activists had to mobilize quickly if they were going to defend the new system from legislators hoping to bury it. By March, proponents of the program had acquired enough signatures to put the legislature’s bill up for a “people’s veto” that would override the legislature’s delaying tactics. The veto vote was held during the June 2018 primary election (which also served as the first statewide election to use ranked-choice voting in Maine), and the electorate once again sided with RCV and against the legislature. Having overridden all legislative maneuvers, ranked-choice voting had finally become the law of the land.

Last Tuesday’s election was the first time ranked-choice voting was used in a general election in Maine. Only three races used the ranked-choice system (U.S. Senator and the two U.S. Representatives) and in two of those races, a candidate reached the 50% threshold on the first count with no need to eliminate candidates or re-allocate votes. The third race (in the 2nd Congressional District) will be decided by the ranked-choice system later this week. Republican Bruce Poliquin and Democrat Jared Golden each garnered 46% of the vote; how the remaining 8% of the votes split between the two candidates will decide which one will head to DC in January. The winner is expected to be announced tomorrow.

Pictured: A sample ballot in Maine’s 2nd Congressional District using ranked-choice voting. From the Maine Secretary of State’s website: https://www.maine.gov/sos/cec/elec/upcoming/pdf/CD2.SampleBallot.pdf

What in the World is Happening In Florida: Part One

By Zack Damron

Like the recount debacle in 2000, Florida is at the center of controversy this election cycle. Only this time, it isn’t the Presidential race. The Senate race between Republican (and current Governor) Rick Scott and incumbent Democrat Bill Nelson has focused on two counties, Broward and Palm Beach Counties. (There are other recounts in Florida for other races, which we will explore in future posts.)

This isn’t the first time that Broward County and its election supervisor, Dr. Brenda Snipes, has been in the spotlight…and not in a good way. During the 2016 Congressional race, the Florida State Department found that workers in the county impermissibly destroyed ballots before they were told to, and while there were suits going on.

There are competing lawsuits filed by both candidates regarding the counting of ballots in the state. Governor Rick Scott filed suit in Broward and Palm Beach Counties asking for information regarding the ballots. Incumbent Bill Nelson has also filed suit in Federal District Court claiming that counties are improperly rejecting vote-by-mail and provisional ballots on the basis of a signature mismatch.

As ballots continue to pour in from these two counties, Gov. Scott has asked for public records detailing who voted, how many ballots have been authenticated, and how many ballots are left. Both counties declined to produce this information, leading Gov. Scott to file a lawsuit based on state public record laws for the disclosure of the information sought. Gov. Scott stated in his complaint that “the lack of transparency raises substantial concerns about the validity of the election process.” Broward County Judge Carol-Lisa Phillips recently ordered the county to turn the requested information over to Gov. Scott after emergency hearings were held Friday afternoon.

In Palm Beach County, Gov. Scott requested that his representatives be allowed to inspect “potentially damaged” mailed-in ballots from overseas, and he claimed that Supervisor of Elections Susan Bucher and her staff are impermissibly determining validity of the ballots without oversight of the Canvassing Board. In his second win in as many days, Judge Krista Marx ordered that the Supervisor of Elections staff must have the canvassing board verify the ballots, and ordered the staff to provide Gov. Scott with a list of everyone who voted by provisional ballot.

Incumbent Bill Nelson also filed suit in Federal District Court to “count every vote.” The statute at issue here, Fla. Stat. 101.68(1) dictates that vote-by-mail ballots will be counted only if the signature on the voter’s certification matches the signature on the books. A voter may cure a so-called “mismatch” by submitting an affidavit that cures the mismatch by 5 p.m. on Election Day (can be lengthened to 7 p.m.), the signature on the affidavit matches the registration books, and the canvasser is able to confirm the identity of the voter. According to the ACLU, in 2016, approximately 1% of all vote-by-mail ballots were rejected. Senator Nelson seeks to force the counties to count every vote-by-mail ballot. He suggests that without court intervention, the counties will be left on their own and that will cause “arbitrary and standardless” processes for counting these ballots using the signature matching requirement. The same exact process is used for counting provisional ballots, and Sen. Nelson is seeking the same recourse. Fla. Stat. 101.048(2)(b)(1). With both forms of voting, Sen. Nelson emphasizes that the variance across counties is extremely troubling, and he seeks more uniformity in the way the statute is enforced. Those who remember Bush v. Gore, with differing standards between how votes were cast based on the “intent of the voter,” will see echoes in this year’s dispute.

A recount in this race has been ordered to begin, as of yesterday. In Florida, the deadline for all counties to have unofficial returns submitted is November 10. If the returns show that the candidates are within 0.5% of each other, the Secretary of State is required to perform a machine recount. The second set of returns are due by November 15, and if the candidates are within 0.25% of each other after the second returns are submitted, then the State can order a manual recount of all ballots. A manual recount only looks for undervote ballots (those with no vote or fewer than the number of choices on the ballot) and overvote ballots (those who voted for more than were supposed to). As of Nov. 9, in Broward County, there were 26,000 ballots that did not vote in the Senate race, but did vote in the gubernatorial race (3.7% difference).  It is not clear if the large number of undervotes is due to machine error, the design of the ballot (causing voters to miss the Senate race), or something else. The recount can be cancelled by any candidate at any time, or if the number of under- or overvotes is less than the amount of ballots needed to change the election result. On November 16, all overseas and military ballots are counted. Official results from each county must be submitted by November 18, with the official results certified by the Secretary of State by November 20.

Needless to say, we haven’t heard the last from Florida.

Educators on the Ballot: #120Strong to the Statehouse

By Seth Woods

One of the most unique events of the 2018 election campaign was the increased number of public workers who ran for office, including police officers, firefighters, and first responders. The most prominent group of candidates running in 2018, however, were public educators. According to the National Education Association, over 1800 educators filed as candidates this year. In Kentucky, 36 current or former educators ran for positions in the General Assembly.

For many of these Kentucky teachers-turned-candidates, their motivation for running stemmed from the passage of Kentucky Senate Bill 151, the public educators’ pension reform plan, in March of this year. The bill was introduced and passed by a slim majority on the last non-veto legislative day of the 2018 session, without consultation from educators’ groups or minority party legislators, and without undergoing a legally-required actuarial analysis. In June, Franklin Circuit Judge Phillip Shepherd ruled the law unconstitutional.

Many educators feared losing the benefits they had accrued, and used those concerns to mobilize communities to support their cause. In April, most of Kentucky’s public school districts closed their doors while teachers rallied on the steps of the state capitol, garnering national attention in the process. Their first victory happened in the May primary, when a math teacher from Rockcastle County upset the state House majority floor leader by 123 votes. Support for the educators’ cause developed momentum throughout the general campaign. In September, a high school teacher from Woodford County working two extra jobs was featured on the cover of Time magazine. Just a few weeks earlier, a national poll found that 78% of public school parents would support educators if they went on strike for more pay.

Tonight, nine educators were elected to the Kentucky General Assembly, with another (Owensboro professor Jim Glenn) with a one-vote lead and likely heading to a recanvass. While most of the first-time candidates were defeated by incumbents, educators impacted the state’s political discourse–and with an increase in ranks, educators are likely to remain a significant presence in the near future.

Do Negative Campaign Ads Influence Campaigns Negatively?

By Sarah Spalding

“Unfit.” “Liberal mob.” “Conservative alt right.” This election cycle and in innumerable ones past, registered and unregistered citizens eligible to vote are bombarded by this type of cacophonous rhetoric in the mail. In addition, nearly every commercial break during local broadcasts features a monochromatic “worst of” highlight reel of a candidate while a robust voice espouses fear-mongering buzzwords.

Immediately following, a brightly colored screen and positively intoned voice promotes the very same candidate, only serving to further confuse the voter on what each candidate’s stance truly is. “How can a candidate say one issue is important, but their opponent has a clip of them espousing the opposite?” “Which side is telling the truth?” A well-discerning voter may often find these questions running through their head. This begs a second question: do negative campaigns influence campaigns negatively? This answer is almost as double sides as the essence of the question: it depends.

In a world where elections have become more media driven, it’s unsurprising that negative campaign advertising has only continued to rise. During the 1960s, only 10% of all televised campaign advertisements were negative. In a massive turn of events, only 14.3% of ads in 2012 could be considered positive. A 2014 study found that when they surveyed voters and used the term “negative campaigning” in a question about that form of advertising, 55% of the respondents strongly agreed that this type of campaigning was unethical. In contrast, the group that received the same question, but the words “negative campaigning” were excluded responded positively overall. Surprisingly, the most common response was that the ad made them feel “not at all angry.” Essentially, this data tells us that if voters aren’t actively recognizing an ad as negative, they may not find the purveyor of the ad to be producing anything reprehensible.

Negative campaign advertising has been found to be effective in terms of influencing voter preference, as well as turnout at the polls. That information does  not come without qualifiers. Negative advertising can be extremely powerful for voters, but part of that power depends on who is espousing it. One commonly hears the phrase “paid for by the ____ for ____,” if one listens to the end of an attack ad or reads the fine print of a shiny flyer pulled from the mailbox. The data shows that the ads produced by Political Action Committees (PACs) was largely ineffective on voter psyche. Adversely, negative ads produced by the candidates themselves actually had a positive effect on how voters made decisions. This is due to how voters may view the credibility of the information being doled out. However, while the aforementioned study looked at for whom voters polled, another found that negative campaigns can actually affect whether or not citizens vote at all. Self-identified Republicans and Independents viewed negative advertisements as persuasive, yet they decrease overall voter turnout. This is especially polarizing for independents, who due to a less partisan allegiance, are already less likely to vote.

In the end, negative campaign advertising does not appear to have the negative impact on the public that one may imagine. Its effectiveness ultimately hinges on who is producing it and what their political affiliation may be. This leads to the ultimate conclusion that for some candidates, a negative ad may mean a positive result.

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