Legislators Battle Whether to Restrict or Expand Voting

The mechanics of election administration became a national obsession in 2020. Whether from pre- and post-election disinformation about fraud or the efforts of public officials and private-sector groups to help voters during the pandemic, passions over election integrity have soared since the November presidential election. They reached a fever pitch following the Jan. 6 attack on the U.S. Capitol and in the weeks since, hundreds of bills have been put forward in state legislatures in the name of election reform.

Now, voting rights advocates are on edge as the Supreme Court considers a case that could thwart efforts to protect minority voters. The Arizona attorney general and the state's Republican Party have asked the court to review an appellate court decision that Arizona laws restricting ballot collection and out-of-precinct voting are discriminatory. A worst-case scenario would be a ruling that not only overturns the earlier decision but also includes a departure from precedent that weakens the Voting Rights Act.
A bigger percentage of eligible voters cast votes in November than in any other election in the past 120 years. Practices implemented to make voting safe during the public health emergency, such as early voting and vote-by-mail, were popular with voters and added to the turnout. They weren’t the only factors driving participation, however. A pre-election Pew survey found that more than 80 percent of voters felt that it “really mattered” who won the election.

Both parties want to build on the lessons learned from the general election, but they have different ideas about what that means. Research and experience might show that absentee voting does not change outcomes, but some find it hard to believe there is no meaning in the fact that only a third of Trump supporters voted by mail, while nearly 60 percent of Biden voters used mail ballots. 

Election officials moved fast to make changes during the pandemic, says New Mexico Secretary of State Maggie Toulouse Oliver, the president of the National Association of Secretaries of State (NASS). Early voting and vote-by-mail were expanded in states with fundamentally different political viewpoints out of the necessity to prevent large crowds of people from gathering in one place.

“Now there's going to be contention over whether to codify some of those changes or to see them as problematic,” says Toulouse Oliver. “Largely, the states that are trying to make things more restrictive are coming from a point of view of believing the conspiracy theories that have been batted around.”

Hundreds of Bills to Restrict or Expand Voting

An analysis by the Brennan Center for Justice published on Feb. 8 identified 165 bills in 33 states that could restrict voter access, and more than 500 in 37 states that intended to expand access. Since that time, hundreds more have been introduced, says Eliza Sweren-Becker, counsel in the center’s Democracy Program and the lead author of the roundup. 

Her most recent count is 253 “restrictive” and 704 “expansive” proposals in 43 states. Although no instances of irregularity or voter fraud have been found that affected the outcome of the election, state lawmakers continue to use the false charge that both occurred to justify restrictive legislation, says Sweren-Becker. 

“Election administrators across the country made sure that voters could vote in a safe and secure manner,” she says. “After a historic turnout, we’re seeing a backlash, with state lawmakers trying to put stumbling blocks in the way of voters at every step of the way.”

These include such things as eliminating “no excuse” voting and permanent early voting lists, aggressive purging of voter lists, shortening early voting periods, banning drop boxes and preventing the mailing of absentee ballots to those who have not requested them. Five states are seeking to eliminate same-day voter registration, a practice that, according to estimates by social scientists, would give millions more Americans the opportunity to vote. 

An Oklahoma bill calls for an amendment to the U.S. Constitution that, among other things, would prohibit the mailing of an absentee ballot to any citizen unless in response to a request that is notarized or signed by two other eligible voters. Violation of these and other requirements would be a felony punishable by at least five years in prison.

Arizona bills would give the Legislature the authority to overturn results certified by election officials, says Sweren-Becker. An Iowa bill would impose criminal sanctions on election officials. A New Hampshire bill mandates that members of the public must be permitted to “observe the processing and counting of absentee ballots without obstruction and from a distance of 6 feet.”

“Of course, it should be the expectation that election officials are going to follow the rules, but that’s not the way to lead qualified, dedicated election officials to stay on their jobs,” says Sweren-Becker. The unrelenting pressures of the pandemic, the disparagement of election officials for adhering to the rule of law and threats against their safety have already led to a wave of resignations. 

For those who have remained on the job, a flurry of bills seeking to cancel practices that resulted in increased participation can feel like one more attack, this time from state lawmakers. But some see things differently.

Court-Ordered Changes Shook Voter Confidence

Attorney Mark Braden served as counsel to the Republican National Committee for 10 years and has decades of experience in cases involving voting rights, redistricting and contested elections. The most important thing, he says, is for voters to believe that the system works — which he is confident it does.

“It’s important that the winners win, but equally important is the fact that the rational supporters of the losers believe that the person who won actually won,” he says. “Those are so much more important than anything else.”

While he considers 90 percent of the former president’s assertions about fraud to be “total nonsense,” he does feel there are legitimate reasons to be concerned about the process. For example, the disruptive circumstances of the pandemic led to election guidelines being revised through consent decrees and court orders. 

“The Democrats couldn’t get exactly what they wanted through the legislatures, so they just went to the courts,” he says, setting a precedent for future midstream changes.

Derek Muller, an election law expert who teaches at the University of Iowa, believes that these court-ordered changes late in the election process shook voter confidence. The appearance that alternate voting rules were coming from left-leaning courts or judges added to the sense that they were unfair, he says. 

Those who were willing to believe that voting systems were manipulated, despite paper records and recounts that indicated otherwise, are unlikely to be reassured by legislation, says Muller. “I think the key is to get people to understand and trust existing procedures, rather than buy into concerns that aren’t empirically proven.” 

It’s not surprising that the combination of an exceptionally controversial and polarizing presidential campaign and a pandemic would impact the election process, says Braden, but the next election will be different. “A lot of places will return to their more traditional system, which will be less controversial and should be easier for people to understand.”

Partisan Control of State Legislatures

Making Better Access Permanent

More than three times as many bills have been introduced to expand access to the polls as to restrict it. “We are seeing a number of state lawmakers look to 2020 and see which of the policies that were temporarily adopted worked,” says Sweren-Becker. 

The Brennan Center found that proposed expansion legislation focuses largely on mail voting, early voting, voter registration and voting rights. These include proposals for no-excuse mail voting in every election and authorizing or requiring drop boxes for ballots. Lawmakers in numerous states want to allow election officials to start processing ballots before election day and to restore rights to persons with past criminal convictions. 

Bills that expand voting access have been put forward in states also considering restrictive policies. Republicans currently control legislatures in 30 states, and Democrats in 18. Republicans hold the legislature and the governorship in 23 states, the Democrats 15. With the putative leader of the Republican Party and three-fourths of self-identified Republicans still holding to the belief that the election was stolen, efforts to codify recent changes will be fought hard. 

“In some states these bills will have no chance,” says election law expert Rick Hasen, Chancellor's Professor of Law and Political Science at UC Irvine, of legislation aimed at increasing access. “In other states where there's more cooperation or perhaps divided government and there's room for compromise, those bills could have a chance.” 

Would Federal Voting Standards Work?

If disagreement about best practices for election administration is the norm at the state level, differences could be reduced by setting federal standards. Article I, Section 4 of the Constitution grants Congress the right to make or alter regulations regarding the “Times, Places and Manner” of holding elections. 

HR1, the For the People Act first introduced in the House of Representatives in 2019 and passed by that chamber, aims to provide such standards. It was reintroduced in January and has the support of every House Democrat.

The For the People Act is built on three pillars, says Daniel Weiner, deputy director of the Brennan Center’s Election Reform Program. The first expands voting access and creates a baseline federal standard that includes modernizing voter registration and restoring the right to vote to formerly incarcerated persons. The second puts safeguards over redistricting into place and bans partisan gerrymandering, and the third overhauls the campaign finance system. 

The election practices that HR1 would prescribe are already in place in many states, including online voter registration (40 states), automatic registration (18 states and the District of Columbia), same-day registration (21 states and D.C.) and pre-registration of voters at age 16 (23 states). Voter participation would be enhanced by practices such as two-week early voting periods, no-excuse vote by mail, prepaid ballot mailings, drop boxes and curbside voting.

The bill addresses election security by eliminating paperless systems, setting standards for equipment and requiring it to be certified, and post-election risk-limiting audits. Provisions to end gerrymandering include the creation of independent commissions to oversee redistricting, a ban on the use of maps that favor or disfavor one party and uniform rules for drawing congressional districts. These would not take effect until after the 2030 Census.

Campaign finance reform proposals include the creation of a small donor matching system which would provide a 6-to-1 match for donations up to $200 to Congressional candidates from a “Freedom from Influence Fund.” 

“Small donor matching provisions are the most effective way to counter the trends we’ve seen over the last decade,” says Weiner. “The only way to have a different system, particularly given how the Supreme Court has ruled, is to create some sort of viable path for candidates to fund their campaigns in a different way.”

Debate Rages Over Federal Voting Standards

Mitch McConnell has called HR1 a “power grab,” but Weiner thinks it has a chance. “Our democracy had a near-death experience in some ways,” he says. “There’s an unprecedented understanding that our democracy’s challenges are multifaceted and require a multifaceted solution.”

Mark Braden is adamantly opposed to attempts to nationalize the election system. “One of the virtues of our system is that it’s diverse and done differently in different locales, which are appropriate because people have different situations,” he says.   

For Braden and Muller alike, the Help America Vote Act (HAVA) is a cautionary tale about unanticipated consequences from federal action. In an effort to address controversy around the possibility that inaccurate punch cards affected the outcome of the 2000 presidential election, HAVA allocated $650 million for states to purchase electronic voting equipment that proved to be even more of a security concern.

“I can see the logic behind trying to create more of a standard across the states,” says NASS President Maggie Toulouse Oliver. “I still think it's really important for states to have a lot of freedom and flexibility and funding to be able to implement any sort of federal mandate.” 

There’s little doubt that HR1 will pass the House, but Hasen isn’t sure it will make it any farther. With a one-vote majority in the Senate, Democrats would have to get rid of the filibuster to push the bill through and there does not appear to be enough Democratic support to make this happen.
HR1 also would strengthen the Voting Rights Act, referencing the Supreme Court’s 5-4 Shelby County v. Holder decision in 2013. In this case, the court effectively ended a requirement for states and jurisdictions with histories of discrimination against voters to receive federal approval before implementing changes to their voting rules by ruling that the formula used to decide who should go through this preclearance was outdated. 

As HR1 moves forward, another federal voting reform bill is also in play, one that directly addresses the racial dimensions of voting rights and disenfranchisement of minority voters.  

The Voting Rights Advancement Act (VRAA), which passed the House and was renamed the John Lewis Voting Rights Advancement Act in the Senate, proposes a new formula for preclearance, based on documented evidence of discrimination. It establishes guidelines for notifying voters about changes, and enables the attorney general to send federal observers to monitor elections, prevent voter intimidation and report what they have found.  

Pleasing Losers Is a Big Challenge

No legislation could be expected to cure all partisan fears, says professor Muller. “When Republicans win elections, Democrats lose faith in the electoral process, and when Democrats win elections, Republicans lose faith.” If a Republican loses in 2024, it won’t matter what restrictions were placed on absentee voting or how many observers were allowed to watch vote counts, he says.

Legal challenges are to be expected for any bills that make it to law. If the For the People Act did manage to make it into law, it should withstand a Constitutional test, says Joshua A. Douglas, a law professor at the University of Kentucky.

“As for the new state restrictions, I certainly expect them to be challenged,” he says. “Unfortunately, the latest Supreme Court precedent unduly defers to the states, making it even harder to successfully challenge election laws.” 

It would be a mistake not to reflect on the role the “will of the people” played in the 2020 election. It may not be possible to gauge how much the 2020 turnout was due to opportunities introduced during the pandemic and how much by a sense that the very soul of the nation was at stake, but it’s a question worth asking.

“There are a lot of really important empirical questions that remain unanswered about the changes that Republicans and Democrats are talking about,” says Muller. “Despite the fact that there is so much partisan wrangling, it’s hard to know if all of these things are making very much of a difference.” 

New Mexico Secretary of State Toulouse Oliver and her colleagues are still thinking about the ways that misinformation interfered with their work and public confidence in it, generating not just discontent but threats of violence against election officials.

“We’ve started talking about reconstituting a committee or task force to try to get a better handle on public education,” she says. “Folks who were willing to buy into the conspiracy theories had no knowledge of, or no interest in, how election processes really work.”