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The Illusion of Choice: How Big Data & Missing Legislation Robbed American's of Free Will

Sahith Mocharla

Edited by Isabella Rogoff, Jia Lin, and Vedanth Ramabhadran


2016 was one of the tightest presidential elections in American history. Numerous swing states were in the balance, not the least of which was Michigan–holding 16 electoral votes–where both Hillary Clinton and Donald Trump needed to win to push themselves closer to victory. In such a hotly contested election, every vote matters; therefore, if something were to influence or sway certain groups from not voting, it would have an outsized effect on the election as a whole. In 2016 a British consulting firm, Cambridge Analytica, utilized non-consensual data taken from Facebook to target specific voters (black Americans in Michigan) and flooded them with ads centered around them not voting. With nearly 1.5 million black Americans in Michigan, after these ads black American voter turnout fell by 12 points from the previous year. Trump won Michigan by 11,000 votes and the election that year, but who knows what may have happened if those voters had a chance to express their voice? If they weren’t influenced by groups without their consent or knowledge to legitimize an election? 

Modern elections in the United States are fundamentally polarized–a reflection of the general American psyche having minimal political overlap–but voting still matters [1]. Voting is essential to the American democratic system–supporting a representative system that should reflect the views and interests of millions of people. Voting legitimizes the government and bestows the capacity and responsibility to make decisions for the country. In a society governed by a social contract, which according to John Locke is a metaphysical compact or agreement between a people and their government, voting represents the consent of the people [2]. However, the voting not only has to occur, it must also be legitimate–that is to say an illegitimate vote (for any variety of reasons) undermines the democratic principles that govern the American political system. If a vote is in any method illegitimate, then the power derived from the vote is null and void meaning that any semblance of authority that the ‘elected’ government would yield is inherently false. The rule of law, establishment of social order, and governmental mandates would all be flawed, irrespective of their practical merit, the very decision itself wouldn’t be valid. A legitimate vote serves to legitimize a government and as a result that government’s actions.

Why and how is modern voting, therefore, under threat? Voting is a formal choice and choices are only legitimate when they follow a certain constraint: the capacity and autonomy to decide between two or more choices whilst unconstrained by external parties [3]. With this understanding, modern voting fails to meet this criteria in a multitude of ways: the electoral college system, the enacting of voter suppression laws, and unregulated campaign finance (in conjunction with lacking data privacy laws) all of which have threatened voters across the country.

The Electoral College system–for executive federal elections as well as Senate/House seats–creates unique incentives to push for polar extremes in political rhetoric and platforms to create political shifts, thereby increasing their potential voter base and hopefully gaining more votes. These political shifts are a mechanism known as ‘Overtonian politics,’ a methodology where a politician repeatedly campaigns in such an extreme manner (far right or left) that policies that might’ve seemed extreme before the campaign seem conciliatory or moderate after.  Public officials can, theoretically, only create policies that the majority of people want–that is the best way to garner widespread support and get elected–but by proposing and constantly promoting ‘radical’ policies (that the majority of people wouldn’t automatically agree with), politicians can convince people that previously ‘extreme’ policies become not only digestible but preferable [4]. This political maneuver is especially empowered under a winner-takes-all system because by simply garnering 50.1% of the vote, you will represent the whole. All these factor into the status quo: a flood of politicians promoting loud campaign messages and pursuing specific policies that restricts other voters or frees their own. 

Voter restriction is primarily enacted through suppression laws, which target the access, ability, and methods of voting of specific groups (namely political, economic, and racial minorities), and are utilized by politicians to guarantee the highest probability of success. A notable example of voter suppression is Senate Bill 1970. SB1970: removes only Harris County’s non-partisan election administrator (a position that provides election information and manages election sites), a provision not levied upon any other county [5]. Texas legislatures also overturned many previous election policies aimed at increasing voter access and capacity through mail in ballots, voting stations, drive-through voting, and 24-hour voting–through multiple bills. The diminishing of voters is dangerous for a multitude of reasons, the first being that it undermines the vote itself. The Voting Rights Act of 1965 facilitated opportunities for all communities to participate in all aspects of the political system on an equal basis. The act prevented racial discrimination in voting, empowered federal oversight for voting practices, and largely shifted the face of national politics. The act was also instrumental in helping minority candidates get elected in many seats across the country as people who used to not be able or allowed to vote for those candidates now could.

In numerous rulings since then the Supreme Court has undermined the basis of the Voting Rights Act. The act holds that jurisdictions with discriminatory pasts to obtain approval from the Department of Justice before enacting new voting laws, a process called preclearance, in section 5; furthermore, section 2 of the act holds that people ought to be allowed to sue “either on their own behalf or with the assistance of the Justice Department–to undo existing laws and procedures that would deny equal political opportunity to voters to elect their candidates of choice” [6]. Shelby County v. Holder essentially removes the applicability of preclearance, ruling that section 5 is unconstitutional. In Shelby, Shelby County, Alabama sought to make section 4 and 5 of the act ruled as unconstitutional as it seemed to exceed the bounds of congressional authority while the Alabama attorney general Eric Holder contended otherwise.. Justice Clarence Thomas argues in Shelby “that the blatant discrimination against certain voters that Section 5 was intended to prohibit is no longer evident” [7]. This ruling was dissented by Justice Ruth Bader Ginsburg under the interpretation that the congressional power to enforce the Fourteenth and Fifteenth Amendments encompasses legislative action such as the Voting Rights Act; therefore, the act should remain in place. Following Shelby’s decision, numerous states have enacted policies impeding voter access; including Texas which also implemented the nation’s most restrictive voter ID laws, which had previously been prevented under preclearance [8]. After Shelby and up to 2020, the turnout gap between black and white Americans grew between 9.2% and 20.9% across five states (Alabama, Georgia, Louisiana, Mississippi, and South Carolina) originally protected by Section 5 of the Voting Rights Act [9].

Shelby isn’t alone in undermining voter rights, with a new ruling in  Brnovich v. Democratic National Committee in 2021, the Supreme Court made it incredibly difficult to bring a suit under section 2 of the Voting Rights Act. Brnovich was filed after Republican legislators in 2016 passed H.B. 2023–the collection of ballots–challenged by the DNC as a violation under section 2 of the Voting Rights Act and the Fifteenth Amendment. The court’s ruling in Brnovich, although explicitly not creating a test for all succeeding Section 2 cases, still undermined the ability of Section 2 cases to be brought [10]. 

The tenets of voting and choice–capacity, autonomy, and independence from external forces–are all undermined by these voting legislations, all of which threaten the strength of the 15th Amendment. They threaten, specifically, Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude and Section 2: The Congress shall have power to enforce this article by appropriate legislation [11]. Both sections are under unique threat as new legislation is constantly being pursued that disenfranchises certain voters, at least in part due to the unique incentive structures generated by the Electoral College. Yet those aren’t the only factors at play–campaign finance and political fiscal rules contribute to the pursuit of voter suppression and control.

Campaign finance has primarily been understood under two key Supreme Court cases: Buckley v. Valeo and Citizens United v. Federal Election Commission (FEC). In Buckley, the court restricted fiscal contributions to campaigns by limiting the amount an individual could contribute to a campaign and requiring reporting of contributions above a certain threshold, all of which was meant to be overseen by a newly formed commission: The Federal Election Commission [12]. In Citizens United, the court determined that corporate speech was categorized as free speech [13]. Therefore, corporate money was simply an expression of free speech and could not be regulated under the 1st Amendment: “Congress shall make no law… abridging the freedom of speech” [14]. The decision in Citizens United meant any corporation could contribute to a campaign as political speech–which is inarguably indispensable to democracy–is still true for a corporation. While the decision made in Citizens United is, on its own, unambiguous and ineffective, when paired with lax regulations for data privacy, corporate interference in elections has become a major threat both to the legitimacy of votes writ large and the rights of voters across varying circumstances. Campaign finance regulation–or lack thereof–inherently incentivizes the active accumulation and mining of voter data through multiple mechanisms: targeted advertising, fundraising efficacy, and compliance costs. Through data mining, corporations can target demographics with several different forms of advertisements and maximize the impact of their persuasion, furthermore, this makes their fundraising more effective as each campaign dollar spent theoretically has more of an effect, culminating with a tertiary benefit of meticulously maintained data helping meet compliance regulation for campaign finance disclosure. However, while these nominally seem like efficient and effective processes, they create a malicious secondary effect: data mining. To gain the aforementioned benefits, corporations require large amounts of raw data to manipulate, analyze, and distill–creating incentives that may harm voters. Data mining creates numerous privacy concerns while facilitating the creation of manipulative advertising techniques, exhibiting algorithmic bias, and reinforcing echo chambers while being incredibly hidden. Data mining therefore raises several legal issues around privacy and discrimination laws specifically, regarding the Health Insurance Portability and Accountability Act (HIPAA), the Civil Rights Act of 1964, cybersecurity laws, and others. Data mining may violate these basic tenets of American freedoms given its propensity to siphon data to be sold to other actors without the genuine awareness of the constituents whose data is being collected.

Data mining and campaign platforms that utilize the ‘benefits’ of targeted advertising may inadvertently feed, uphold, and perpetuate hidden biases and misconceptions about certain groups. By type-casting and generalizing people to specific characteristics (such as race), we inherently limit any potential understanding we can have of the person. Furthermore, the person themselves becomes less informed as they are only fed content that algorithms assume they will like. This is critical for elections as voters, old and new, will likely remain in echo chambers that are incredibly difficult to break out of. These echo chambers then collectively push polarization and solidify its hold on the American (and global) political spectrums. The advent of ‘Big Data’ and the lack of subsequent regulation has changed the game for politicians. Politicians now often speak in buzzwords and TikTok-worthy phrases to garner social media attention and play to a demographic base that is predisposed to listen to them–while alienating a group that has been almost conditioned to be anti-candidate. An article by NBC by Chuck Todd and Carrie Dann says “Big data revolutionized the way American politicians win elections. In the process, it broke American politics” [15]. Through technology and demographic data, it is easier, incentivized, and more effective than ever for campaigns to ignore broad swaths of voters and focus only on their “political base’ [16]. In conjunction with Overtonian theories of campaigning, politicians can increasingly ignore the center in favor of voters predisposed (or preconditioned) to agree with them. Politicians who are then elected become beholden not to their voters or even the electorate, but rather to their ‘base’ who helped them get elected, only furthering the polarization and lack of representation in politics and government.

Campaigns have long targeted data to gain an edge in elections although it was primarily done through surveys and fieldwork, which ‘Big Data’ has all but eliminated. The 2016 election, as mentioned earlier, was a public touchstone on the effect of ‘Big Data.’ The Cambridge Analytica case–Securities and Exchange Commission vs Facebook in 2019–was a turning point in American politics, where a massive data mining scandal was found to be working for the Trump campaign by scraping Facebook users’ data. In this case, the Cambridge-based firm disproportionately identified Black voters as ripe for ‘deterrence’ specifically preparing messages that singled them out and convinced them to not vote [17]. Black voters made up 17 percent of non-voters in Wisconsin despite making up just 5.4 percent of voters, and 33 percent of non-voters in Michigan while accounting for just 15 percent of the voting population, perhaps facilitating the subsequent margin of victory for Trump (winning Michigan by 11,000 votes while Black turnout fell in Michigan by more than 12 points) [18]. Trump’s win in these states was key in an election he barely won and calls into question the legality and ethics of data usage in campaigning–especially when not consented to nor opted into by users (Meta agreed to pay $725 million to settle a private class-action lawsuit related to improper data sharing concerning Cambridge Analytica and other companies) [19]. Cambridge Analytica only represents the tip of an iceberg hidden beneath an ocean of gray area concerning data gathering techniques. Numerous firms operate and siphon data from nearly every action voters undertake, and there currently aren’t laws on the books regulating these practices. These actions serve to intensify polarization across the country, and hamstring the possibility of practical policy, whilst simultaneously somehow leading to a representative class less connected to their voters than ever before. In a world where politicians can gain access to one’s ice cream flavor of choice, the stores one shops at, and the cat videos one laughs at in one’s own private time it seems ridiculous each one is a carefully crafted piece of electioneering meant to make you think, act, and vote a certain way, yet the current system of voting not only doesn’t prevent such action, it may actively encourage it. 

Multiple things therefore seem plausible and obvious to uphold legitimate voting: Congress and/or the Supreme Court ought to uphold and reinvigorate the Voting Rights Act by either overturning Shelby or passing new legislation–as Congress is empowered to do under the 15th amendment. Congress also ought to pass new legislation proposing, regulating, and restricting the use, mining, and manipulation of data–especially in elections.

 

[1] Rachel Kleinfeld, Polarization, Democracy, and Political Violence in the United States: What the Research Says, Carnegie Endowment for International Peace, https://carnegieendowment.org/2023/09/05/polarization-democracy-and-political-violence-in-united-states-what-research-says-pub-90457 (last visited Apr 29, 2024).

[2] Democracy-Legitimacy,Representation, Participation | Britannica, https://www.britannica.com/topic/democracy/The-legitimacy-of-government (last visited Apr 29, 2024).

[3]  Bavetta, Sebastiano; Navarra, Pietro (2011). "Chapter 5". Index of Economic Freedom (Report). The Heritage Foundation. p. 65. Retrieved February 12, 2013. 

As noted, there are two aspects of free choice: opportunity to choose and autonomy to choose.

[4] Maggie Astor, How the Politically Unthinkable Can Become Mainstream, The New York Times, Feb. 26, 2019, https://www.nytimes.com/2019/02/26/us/politics/overton-window-democrats.html (last visited Apr 29, 2024).

[5] US: Texas Laws Threaten Houston Area Voting Rights | Human Rights Watch, (Jul. 19, 2023), https://www.hrw.org/news/2023/07/19/us-texas-laws-threaten-houston-area-voting-rights (last visited Apr 29, 2024).

[6] 10321, The Voting Rights Act Explained | Brennan Center for Justice, (2023), https://www.brennancenter.org/our-work/research-reports/voting-rights-act-explained (last visited Apr 29, 2024).

[7] Shelby v. Holder, Oyez, https://www.oyez.org/cases/2012/12-96 (last visited Apr 29, 2024).

[8] Effects of Shelby County v. Holder on the Voting Rights Act | Brennan Center for Justice, (2023), https://www.brennancenter.org/our-work/research-reports/effects-shelby-county-v-holder-voting-rights-act (last visited Apr 29, 2024).

[9] 211, 209, & 9907, Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act | Brennan Center for Justice, (2024), https://www.brennancenter.org/our-work/research-reports/racial-turnout-gap-grew-jurisdictions-previously-covered-voting-rights (last visited Apr 29, 2024).

[10]Brnovich v. Democratic National Committee, Oyez, https://www.oyez.org/cases/2020/19-1257 (last visited Apr 29, 2024).

[11]The 15th Amendment of the U.S. Constitution, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/the-constitution/amendments/amendment-xv (last visited Apr 29, 2024).

[12]Buckley v. Valeo, Oyez, https://www.oyez.org/cases/1975/75-436 (last visited Apr 29, 2024).

[13]Citizens United v. Federal Election Commission, Oyez, https://www.oyez.org/cases/2008/08-205 (last visited Apr 29, 2024).

[15]How “Big Data” broke American politics, NBC News (2017), https://www.nbcnews.com/politics/elections/how-big-data-broke-american-politics-n732901 (last visited Apr 29, 2024).

[16] Sean Illing, A Political Scientist Explains How Big Data Is Transforming Politics, Vox (2017), https://www.vox.com/conversations/2017/3/16/14935336/big-data-politics-donald-trump-2016-elections-polarization (last visited Apr 29, 2024).

[17] Geoffrey A. Fowler, Perspective | How Politicians Target You: 3,000 Data Points on Every Voter, Including Your Phone Number, Washington Post, Feb. 24, 2021, https://www.washingtonpost.com/technology/2020/10/27/political-campaign-data-targeting/ (last visited Apr 29, 2024).

[18] Craig Timberg & Isaac Stanley-Becker, Cambridge Analytica Database Identified Black Voters as Ripe for ‘Deterrence,’ British Broadcaster Says, Washington Post, Sep. 28, 2020, https://www.washingtonpost.com/technology/2020/09/28/trump-2016-cambridge-analytica-suppression/ (last visited Apr 29, 2024).

[19] Arjun Kharpal, Facebook Parent Meta Agrees to Pay $725 Million to Settle Privacy Lawsuit, CNBC (2022), https://www.cnbc.com/2022/12/23/facebook-parent-meta-agrees-to-pay-725-million-to-settle-privacy-lawsuit-prompted-by-cambridge-analytica-scandal.html (last visited Apr 29, 2024).

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