NRS 293.463 and Nevada Voters

Ballot BoxWith all the recent discussion of vote suppression strategies and tactics emanating from the right wing of our national politics, there’s at least one aspect of the issue that isn’t getting much attention.  What is the economic impact of suggestions to curtail voting, especially those ideas put forward which would eliminate early voting, voting by mail, and other such concepts?

A Time and Distance Problem?

The crux of the issue for employers is that “Employees in Nevada are entitled to a sufficient period of time off to vote, without penalty, if there is not sufficient time outside working hours when the polls are open.”  [BizTK] The entire framework is set forth in NRS 293.463:

 NRS 293.463 Employees may absent themselves from employment to vote: Procedure; penalty. 1.Any registered voter may be absent from his or her place of employment at a time to be designated by the employer for a sufficient time to vote,  if it is impracticable for the voter to vote before or after his or her hours of employment. A sufficient time to vote shall be determined as follows:  (a) If the distance between the place of such voter’s employment and the polling place where such person votes is 2 miles or less, 1 hour.  (b) If the distance is more than 2 miles but not more than 10 miles, 2 hours. (c) If the distance is more than 10 miles, 3 hours.  2. Such voter may not, because of such absence, be discharged, disciplined or penalized, nor shall any deduction be made from his or her usual salary or wages by reason of such absence. 3.Application for leave of absence to vote shall be made to the employer or person authorized to grant such leave prior to the day of the election.

Note that in the Nevada statute the “sufficient” time involved in voting is determined by the distance between the polling station and the place of work.  It is not qualified by the number of minutes — or even hours — a person is standing in line waiting to vote.  In short, Nevada’s statutes allow for travel time to get to the polls, but not wait time.* An Attorney General’s opinion (pdf) from December 2, 1986 sought to clarify the statute:

“NRS 293.463 is a statute which should be interpreted and applied in a liberal manner in order to achieve its salutary purpose of ensuring that employees have the unfettered opportunity to vote during an election.  If it is impracticable for an employee to vote before or after the workday and the employee meets the other qualifying terms of the provision, the plain language of the statute affords the employee a specified amount of time absent from the workplace in which to vote.”

An employer is not liable for any penalty under the provisions of NRS 293.463 if the law has been generously applied so that the employee has an “unfettered opportunity” to vote.   The statute doesn’t mention any fetters applied when the prospective voter gets to the polling station, stands in line and watches the minutes tick away until the “deadline” is reached. At this juncture both the employee and the employer are at the mercy of the election officials.   What happens when a shortage of ballots, a shortage of election machines, a shortage of polling stations, or other inopportune situation creates long waits at the polls?  Is a worker to be penalized wages lost if he or she is standing in line for more than 3 hours at the polling place 3 miles from work?  Is the employer to continue to pay an employee who, at no  fault of their own, exceeds the maximum number of hours absent for the purpose of voting? Extending voting times, including the use of early voting opportunities, helps resolve some of the questions otherwise left to the judgment of employees and employers.  Employees and employers who have “regular” hours, 9-5 Monday through Friday, can put these issues aside if the employee can avail him or herself of Saturday voting periods.

Sheer Numbers

The population of the United States of America in the first census of 1790 was 3,929,214 individuals.  Since women could not vote we must subtract 1,541,263 free white women from the voting total.  We must also subtract the 694,280 enslaved persons from the total eligible to vote.  There were 791,850 free white males under the age of 16, and ineligible to vote, so we have to subtract these numbers from the total as well.  The vote was the province of property owning white males, who comprised between 10% and 16% of the total population.   If we take the most generous figure, 16%, then we can conclude that there were only 628,674 eligible voters in the entire country in 1790.   In short, the entire voting population in 1790 was less than the current total population of Denver, Colorado (634,265.) [Pop] The relatively small numbers fit the original establishment of an election day in the United States:

“The United States was an agrarian society in the mid 1800′s, and it was believed that November would be the best month to hold elections, since harvest would have been completed. Tuesday was the best day of the week because it did not interfere with the Sabbath, yet gave farmers enough time to travel to the polling places. Wednesday was traditionally market day, and therefore not a good choice.” [IslandLaw]

Thus, now an industrial/financial predominantly urban  nation has an election day set for an agrarian, predominantly rural society.   The time it takes to vote is not only a function of the time allowable for the electorate to show up at the polls, but also of the capacity of the officials to conduct the election itself.

Numbers also show us the problems associated with this task in Nevada. The state’s total vote in the national election of 1920 was 27,194.  In the 2012 election 1,014,918 voters cast ballots in the national election.  Obviously, a system and staffing which could handle less than 30,000 voters statewide would be over-run by an increase of 3632%. Nevada Total Votes castThe notion that the state of Nevada could realistically accommodate the needs of Nevada’s employers and employees on a single election day in a single block of time from 7:00 a.m. to 7:00 p.m. doesn’t seem possible given the increasing numbers of voters who have been casting ballots at our polling stations. Nor does it seem reasonable to conclude that even the voting population of Clark County (Las Vegas, and environs) could be reasonably accommodated under previous systems and protocols. Clark County Population IncreaseThe single day, single block of hours, which worked from 1920 to 1950 would have been stressed by 1970, and overwhelmed by at least 1990? The picture is essentially the same in the other major population area, Washoe County: Washoe County Population Increase

Options

If the “single day/single time block” system for voting cannot reasonably allow voters to cast ballots within the times specified, then adjustments must be made if the spirit of NRS 293.463 is to be followed.   One option is to hire more staff and create more polling sites, with more election supplies and equipment. This option has been commonly adopted nationwide because EAVS statistics confirm that the number of precincts has increased from 167,037 in 1980 to 185,994 in 2004. [pdf]  Most states have between 1 and 2 precincts per polling place; Nevada, as of 2004, had about 3 per polling station. [pdf] However, there comes a point at which combining precincts and creating new polling places becomes prohibitively expensive.  The applicability of the option is proportional to the willingness of the community to tax itself in order to expand its voting operations.

Nevada employers, as patriotic as anyone else, are faced with the prospect of impeding that “unfettered opportunity to vote during an election” required by NRS 293.463, or the option of higher local taxation to pay for making voting more accessible in a single day/single time block system.  Ironically, it may be the employer who could find his or her opportunity to vote in a single day/single block system impinged by having to cover for employees tied up in voting place lines during working hours?

Another option for handling these Sheer Numbers is in early voting, which in 2014 will be from May 24 to June 6 for primary elections, and from October 18 to October 31 for the general elections.   Early voting allows the election officials to spread the work load along an extended time period.   It also gives employers some relief from having to release employees during working hours, and from, in some instances, having to cover for them and pay them for lost time during regular working days. Several counties have adopted mail in ballots for small and/or remote precincts.  Information regarding “mail in precincts” is available from county clerks or voting registrars.  Rural counties have adopted these precincts/mail vote systems to reduce the expenses involved in establishing fully staffed and equipped voting places in areas where the total population is such that the expense isn’t judged justifiable.

The Objections

The most common objection to modifying the single day/single time block voting system is that it somehow “diminishes the civic experience.”   The argument is generally supported by the contention that if people have given their lives and honor for the right to vote, current voters can at least stand in line for a few hours.   The logic of this contention depends on conflating the Right to Vote with the Exercise of Voting Rights.   Indeed, many have lost their very lives for the Right to Vote, but one might reasonably assume that no one has given their all for the Right to Vote in A Single Day, Single Time Block Voting System. What people want, from all sides of the political spectrum, is the capacity to exercise those voting rights, to take advantage of the opportunity to vote in our democracy.

The “civic experience” is reduced, not by extending opportunities with extended or early voting, or with mail in ballots, but when people do not have convenient access to Exercise the rights they appreciate.  Why should voting be convenient?  Because it is an essential part of our “civic experience,” which should be shared by as many eligible voters as possible.

Other objections are predicated on campaign processes.  It is said that early voting requires campaigns to recalibrate their expenses.  Of all the stake holders in the election process, the campaigns may have the least grounds for objections — they entered into the campaign voluntarily, and if they seek voters to their candidate or cause, they need to take the “calibration” of the electorate into consideration before calculating their own campaign’s “calibrations” and ad buys.

A few have objected that “all the facts” aren’t available to those who vote early, and who thereby miss the last minute advertising, and campaign press releases.  This argument might have more merit if the last minute campaign rhetoric weren’t so often specious and spurious.   All too often, waiting until the the eve of an election day garners only the most questionable information, and the attendant cynicism that the information was released at the last minute because it couldn’t withstand 24 hours of fact-checking.

Those who oppose the mail in system for extending the exercise of the vote object to the potential for abuse.  One right wing blog proposed that spouses of a different political party could “lose” the person’s ballot.  If we have so many marriages in this country which are on such shaky ground, then our problem isn’t on the calendar or at the precinct, it’s in the paucity of affordable marriage counseling.

Evidence for “mail in ballot” abuse most often comes from absentee balloting, although one case in Oregon concerned their mail in ballot system. Oregon, which uses mail in ballots, experienced one problem in Clackamas County with a temporary election worker. ” State Department of Justice officials won’t talk about the criminal investigation into allegations that a temporary elections worker cast additional votes for Republicans in races voters left blank.” [Oregonian] Tampering with ballots in Oregon is a Class C felony, with an ‘ up to five year prison term’ and a $125,000 fine.  The Swenson Case was the first involving the mail in votes, and the Oregon City woman pleaded guilty to the offense in April, 2013. [KATU] Oregon is reviewing its ballot handling and processing procedures.

“The misconduct occurred less than a week before the general election, creating concern that the legitimacy of some results would be questioned. The tampering, however, apparently did not affect any races. All the suspect ballots were reviewed to identify voter intent — or, in this case, lack of intent — and then counted.”  [KATU]

Thus much for this much cited case. The last common objection is that mail in balloting and extended voting depress turnout.   Here we meet the Wisconsin Study, and a new term “civic stimulation.”  However, the study contains some elements which cast doubt on the simple conclusion.   In some states campaigns reduced their activities based on the early returns.  It could as easily be argued that if this reduction in campaigning caused less turnout, then the turn out is a function of the campaigning and not the election process itself –The campaign having made a calculated decision that it had probably reached all the voters it was going to get. In short, it depressed its own turnout. The research also concluded that even when extended voting was available the depression factor was reduced if same day registration was allowed.

What depresses turnout?  Voter Suppression Tactics

“The study, conducted by University of Massachusetts Boston professors Keith Bentele and Erin O’Brien, examined restrictive voting laws proposed between 2006 and 2011. That included voter ID laws, proof of citizenship requirements, voter registration limits, early voting and absentee voting restrictions, and restrictions on felons’ voting rights. They found that “the more that minorities and lower-income individuals in a state voted, the more likely such restrictions were to be proposed.” [TP]

No surprise there, and only abetted by the creative ways the ‘suppressionists’ have devised to gut the Voting Rights Act. [NYT] In the mean time, arguments for making voting more arduous, or to enhance that “civic experience” or “civic stimulation,” can’t erase the sheer numbers of voters who must be accommodated by local election officials.  Nor do such arguments assist employers and employees who seek unfettered opportunities to vote in Nevada elections.

The Bottom Line

The economic impact may not be easily quantifiable, but if we conjecture that the losses in terms of wages and productivity must be increased as more employers find they have to release more workers for longer periods of time to exercise their right to vote, then the result isn’t good for either the employers or the political system.   What might be calculable at a micro-level is the reduction in expenses when employees can exercise their voting rights on their own time.   An employer with five employees, all of whom have access to mail in ballots or extended voting times, will be paying far less to satisfy the requirements of NRS 293.463 than the employer who has to release five employees during the day to stand in polling place lines.

* See also: Labor and Employment Laws in the State of Nevada, Fisher & Phillips LLP, PDF

2 Comments

Filed under Economy, Politics, Vote Suppression, Voting

2 responses to “NRS 293.463 and Nevada Voters

  1. RockBlot

    Reblogged this on Humboldt County Democrats and commented:
    The Desert Beacon put together a nice piece on Nevada’s voting regulations. Take a moment or two and take a read through her great article.

  2. Pingback: NRS 293.463 and Nevada Voters « Nevada Rural Democratic Caucus