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Here are the main takeaways for Part 2:
- Voting in the United States has become much easier over the past few elections, especially, but not solely, due to COVID.
- The current more expansive approach to voting is very recent: early voting began in 2004 in Florida, 2010 in Maryland, 2016 in Massachusetts, and 2019 in New York. No-excuse mail balloting was popular in the West in the 1970s, but unusual East of the Mississippi until 2020. Currently it is allowed in 41 states, and all mail voting is the law in Vermont and seven Western states.
- The voting rights landscape is very confused: there are as many states expanding the franchise as are restricting it.
- Republicans are enacting laws at the state level to make voting harder because they believe the easier it is to vote the more likely it is that Democrats, particularly voters of color will vote.
- Congress is considering two voting laws that will make voting much easier by intruding the federal government into voting regulations; however, the likelihood of passing either of these laws soon is very low.
Why are Republicans trying to reduce the ability to vote, while Democrats are trying to expand it? The question itself is not a partisan one. As we will see below, Republican controlled state legislatures are passing laws to make it more difficult to vote, while Democratic controlled franchises are making it easier. The answer to the question above is that Republicans want to reduce the franchise because they believe that making it more difficult to vote will reduce the number of Democratic voters more than Republican ones. They believe (probably rightfully) that any curtailing of mail or absentee voting should hurt Democratic voters disproportionately. In 2020, Democrats disproportionately took advantage of the ability to vote by mail. Sixty-five percent of mail-in ballots were cast for Biden, while only 33% were cast for Trump (see figure below). Many of the other restrictions, are aimed specifically at Democratic efforts to get voters to the polls. For example, the Texas law barring voting on Sunday before 1PM is a transparent attempt to reduce the “souls to the polls” efforts of black churches to get parishioners to the poll after Sunday services. The rhetoric about changing the voting rules to reduce fraud is itself fraudulent.
What is happening today with respect to voting rights? In some states voting rights are being expanded, while in others they are being restricted. The Brennan Center for Law and Justice listed 17 states as enacting 21 new restrictive laws as of the end of May 2021. More ominous is the fact that “at least 61 bills with restrictive provisions are moving through 18 state legislatures. More specifically, 31 have passed at least one chamber, while another 30 have had some sort of committee action (e.g., a hearing, an amendment, or a committee vote). Overall, lawmakers have introduced at least 389 restrictive bills in 48 states in the 2021 legislative sessions.” At the same time, twelve states have expanded access by passing forty bills to expand access. Virginia leads the way with nine expansive bills. What makes it a bit confusing is that three states (Indiana, Kentucky and Montana) have passed bills restricting access on one hand while expanding it on the other.
Forms of restrictive bills. According to the Brennan Center, restrictive laws focus on voting by mail but also make in-person voting more difficult.
- Twelve states are restricting voting by mail. Of these, six laws shorten the timeframe for voters to request a mail ballot, five laws make it more difficult for voters to automatically receive their ballot or ballot application — either by making it harder to stay on absentee voting lists or by prohibiting officials from sending applications or ballots without the voter’s affirmative request, nine laws in eight states make it more difficult for voters to deliver their mail ballots, including a law in Arkansas that makes the in-person ballot delivery deadline earlier, six laws that restrict assistance to voters in returning their mail ballots, four laws that limit the availability of mail ballot drop boxes, three laws impose stricter signature requirements for mail voting, while three others impose stricter or new voter ID laws for mail voting.
- At least 8 states have enacted 11 laws that make in-person voting more difficult. Three states have enacted four laws that impose new or harsher voter ID requirements for in-person voting, four laws make faulty voter roll purges more likely, risking confusion and disenfranchisement when voters show up at the polls. Montana eliminated Election Day registration and moved up its registration deadline to the day before Election Day. Three states have limited the availability of polling places: Montana permitted more locations to qualify for reduced polling place hours; Iowa reduced its Election Day hours, shortened the early voting period, and limited election officials’ discretion to offer additional early voting locations; and Georgia reduced early voting in many counties by standardizing early voting days and hours.
However there seem to be as many laws expanding access as laws limiting access. The following summarizes what is happening (as of June 2021):
PRO-VOTER TRENDS
- Nine states expanded in-person early voting and only one has restricted it.
- Nine states are giving election officials more time to process ballots with no states cutting back pre-processing time.
- Five states passed ballot error notice and cure processes and no states have rolled theirs back.
- Four states expanded voting eligibility or access for citizens with past felony convictions and no states have done the reverse.
- Four states passed new or improved electronic ballot tracking laws and no states have done the reverse.
ANTI-VOTER TRENDS
- Eleven states have passed new laws shifting election authority with potentially chilling ramifications for non-partisan election administration in some of these places.
- Ten states have created election-related crimes with potentially suppressive effects.
- Eight states made it more difficult to return ballots on behalf of voters while one state made it easier.
- Six states imposed new or more restrictive voter ID laws while only one state took action to make its voter ID law more equitable.
MIXED OUTCOMES
- Twenty-two states expanded mail voting while eleven have restricted it.
- Thirteen states improved voter registration while three states imposed new registration barriers,
- Eight states expanded ballot drop off locations while four states restricted them.
The map below illustrates the complex landscape of voting law changes. Not surprisingly, most states where voter restrictions are being eased are “Biden” states (with the exception of Indiana and Louisiana) and most states where restrictions are being increased are “Trump” states. Of particular importance with respect to national politics is what is happening in two red states which Trump lost in 2020 but will likely still be in play in 2022 and 2024: Arizona and Georgia.
Perhaps the most pernicious trend is changing laws concerning election oversight.
- As of April 15, 2021, state lawmakers have introduced at least 40 bills in 20 different states that would expand the powers of poll watchers.
- Several states are considering laws that would expand the authority of state legislatures to oversee elections, thus raising the specter that new challenges to election results would be decided not by appointed officials but by partisan state legislatures. After governors, secretaries of state, and local officials took action in 2020 so that voters could safely cast their ballots during the pandemic, state legislators are advancing bills that limit executive and local power. Of those, five such bills have already been enacted. Perhaps more alarming, according to The Voting Rights Lab “So far this session, 144 bills shifting election authority have been introduced, with the most concerning bills enabling partisan state legislatures to overturn election results. Fortunately, no legislation that extreme has been enacted, but 11 states have enacted new laws reallocating power to administer elections.” One can imagine how much worse the 2020 election would have been without brave officials such as Brad Raffensperger, resisting the Trump machine’s call to change the election results.
Legislation now before Congress. There are two voting rights bills now being considered in Congress, neither of which has any chance of being enacted by the 117th Congress. The John Lewis Voting Rights Act would restore and strengthen parts of the Voting Rights Act of 1965, certain portions of which were struck down by the 2013 decision of the United States Supreme Court in 2013 in Shelby County v. Holder. Particularly, it would bring back the Voting Rights Act of 1965’s requirement that certain states pre-clear certain changes to their voting laws with the federal government. According to the Washington Post’s Peter Stevenson, the Act would:
- Create a pathway for citizens or the federal government to challenge new voter laws in the courts, particularly if parties can show the new law infringes on minority voting rights.
- Require public notice for any changes made to voting laws in a state or political subdivision.
- Provide new rules for polling places on Indian reservations that require states to pay for polling places at no cost to tribes.
- Require many categories of changes in state or local election procedures to go through a process called “preclearance” — essentially, approval from the Justice Department’s civil rights division — before being implemented.
The “For the People Act” is much broader. According to Michael Wines, writing in The New York Times, it would “effectively set a national floor on ballot access, requiring all federal elections to start with an identical set of rules.” It would create a national voter registration system, require states to have early voting, extend mail voting to all states, allow college students to vote where they are going to school, end partisan gerrymandering, and reign in political contributions.
Conclusions. The twenty-first century has seen a wide expansion of the ability to vote. More states have allowed early voting, no-excuse mail-in voting, online registration, drive-through voting, vote drop boxes, etc. Voting in 2020 is much easier than it was in 2000. Recently, the Republican party has been working to reduce voter access and has introduced and/or passed bills in a number of states. However, while it is true that the Supreme Court is unlikely to overturn these restrictive laws unless they can be shown to be discriminatory, and that bills switching election oversight from appointed officials to state legislatures are worrying, we should recognize the following before getting too outraged:
- Almost as many states are expanding voter access as are reducing it.
- Most of the states restricting access are solidly “Red” states and so the national result will be minimal.
- Restrictions are mostly moving the bar backward to 2010, not 1970.
- Voter outreach efforts have been successful in overcoming voter restrictions (see Georgia senate elections).
