Just this week, almost three months after election results were certified by a Congress besieged by violent rioters, Biden’s predecessor issued a statement saying, “The Fraudulent Presidential Election of 2020 will be, from this day forth, known as THE BIG LIE!”
This baseless assertion, refuted in dozens of court cases and multiple recounts but carried forward tacitly or overtly by the great majority of Republicans, has served as the crucible for an unprecedented number of bills seeking changes in voting rules.
According to a new report from the nonprofits States United Democracy Center, Law Forward and Protect Democracy, a number of the most recent bills could go beyond restricting voter access and create opportunities for legislatures to interfere with election administration or overturn results.
“Politicians who didn’t like the outcome in 2020 are trying to change the rules through legislation that would interfere with the way elections are run,” says Jessica Marsden, counsel at Protect Democracy and an author of the report. “If some of these bills had been on the books in 2020, concern about state lawmakers overturning the will of the voters would have intensified.”
3,000 Election Bills
Changes to election law are proposed every year, says Wendy Underhill, director of elections and redistricting for the National Conference of State Legislatures (NCSL).
The Brennan Center for Justice has been tracking recent voting bills, categorizing them as either “restrictive” or “expansive” in regard to voting rights. By their latest count, restrictive bills have passed in Georgia, Iowa, Arkansas and Utah; and there are expansive ones in Massachusetts, Montana, New Jersey, New York and Virginia. At present, 55 bills that would restrict voting rights are moving through legislatures in 24 states, and 112 bills that would expand them are moving through legislatures in 31 states.
The bills being put before legislatures are bigger, including omnibus bills that come with many small tweaks in one bill, says Underhill. “If we had them on paper, they’d be weighing us down.”
While they recognize that legislators have authority over election policy, it’s normal for election officials to be nervous every time legislatures are in session, says Ricky Hatch, county clerk/auditor for Weber County, Utah. “You just don’t know what’s going to come out of that,” he says.
Marsden and her colleagues are worried about what might come out of current sessions. Their analysis focuses on a trend toward making election administration a more partisan process than it has been in the past. “What is concerning to us is that bills that wouldn’t have gotten a hearing or moved at all in the legislative process are taking steps in that direction,” she says.
Potential for Partisan Control
The report, A Democracy Crisis in the Making, points to 148 bills in 36 states that could create potential for partisan control of election processes and outcomes. These fall into four broad categories, say the authors: legislative seizure of control over election results, legislative seizure of election responsibilities, legislative meddling in election minutiae and imposition of penalties, including criminal penalties, for election decisions.
As with other legislative proposals, most of the bills in these categories will not become law. Bills proposed in Arizona, Missouri and Nevada could enable legislatures to interfere with results, whether by giving them power to certify or reject them, or to choose electors to replace those chosen by the voters. These proposals “would dramatically increase the probability of an election crisis,” says the report, but their enactment does not appear to be imminent.
In regard to election responsibilities, Marsden and her co-authors point to proposals that could erode executive branch authority over elections, altering a balance of power in which legislators establish election rules and the executive branch appoints and oversees the officials who administer them. For example, a Maryland bill (sponsored by a Democrat) would take away the governor’s authority to appoint and remove members of the state Board of Elections and give it to the speaker of the House and the president of the Senate, effecting a shift in partisan control along the way. A Tennessee bill would strip the secretary of state of all election responsibilities and pass them to a board appointed by the Legislature.
This shift in power has already been accomplished by Georgia SB 202, enacted in March, which ousts the elected secretary of state as chair of the State Election Board and replaces them with a “chairperson elected by the General Assembly.”
Election officials are generally prepared for resilience in the face of natural disasters or other emergencies, but the pre-election timeline for COVID-19 disruptions to continue was essentially endless. Emergency orders that seemed necessary to ensure public safety caused controversy in many cases, and some bills seek to curtail such authority in the future. An Arizona bill makes it a felony for any official to change an election deadline, filing date or other election-related date. Marsden views such proposals as short-sighted after the pandemic experience and the real possibility of future outbreaks, or climate disasters, manifesting around election dates.
Recently, it’s been reported that Republicans in Michigan plan to use existing law to circumvent legislative-executive balance. If they are able to gain enough signatories for a petition from residents in support of their voting reform proposals, the Michigan constitution would allow their changes to be enacted without the approval of their governor, Democrat Gretchen Whitmer.
Legislators Don't Know How Elections Work
In the category of “meddling with minutiae,” Marsden and her colleagues include bills that they characterize as “micromanaging” of election officials by members of the legislature. This could range from inspection of voting machines to overseeing voting, maintenance of voting rolls or the tallying of votes.
“We all hold our breath when the legislature starts talking about bills about how election officials do their work, because they don’t know how we do our work,” says Hatch. If they don’t consult with local election officials, he says, policy decisions can be not just bad, but administratively impossible to execute.
“If they don’t consult us beforehand to get our thoughts, that’s when you get bad law,” he says.
Despite challenges unimaginable in any previous election season, the 2020 election was remarkably smooth, the most secure in election history. It’s not the competency of legislators to conduct post-election audits, direct pre-election processes, monitor equipment or review voter rolls even in normal times, says Marsden.
Proposals to criminalize actions by election officials and poll workers or others who might engage in election activities constitute a more indirect form of interference. An Arkansas bill would include poll workers in the category of election officials subject to civil liability and fines for acting in a way that “hinders or disregards the purpose of the duty or responsibility.” Wisconsin AB179 makes it a Class I felony for a worker in a retirement home or residential care facility to influence an occupant to apply for an absentee ballot.
Public derision and threats of violence have been enough to cause career election officials to leave their jobs after years of dedication and service to a profession they had previously found rewarding. They had help in 2020 from hundreds of thousands of election workers and volunteers, including young people who stepped up to fill the places of at-risk seniors. “It’s easy to imagine that taking one of those jobs or volunteer opportunities becomes much less attractive if you have the threat of civil or criminal penalty hanging over your head,” says Marsden.
Overreaction to 2020 Turmoil?
The motives behind recent bills are likely to vary from steely determination to achieve change to a desire to be noticed as part of a fraud contingent that continues to attract funding and support. There’s no question that some legislatures are overreacting to the charges raised in 2020, says Derek Muller, an election law scholar at the University of Iowa College of Law.
“But there’s also no question that having a significant patchwork of rules governing elections is not a good thing,” he says. “I don’t think we want wildly disparate treatment of voters in a single jurisdiction, or extensive changes to election rules close in time to an election.”
Legislators should be cautious about usurping the nuts and bolts of administration from experts who handle its many details on a routine basis. Election administration is not just counting votes, he says, but everything from acquiring and calibrating equipment to developing the format of ballots.
Even after a normal election, it would not be unusual for legislatures to propose changes to election law. There are advantages to having them dictate rules and assert control following the turmoil of 2020, says Muller. “It can be a problem if it’s getting deep into the weeds of things they lack the institutional competence to do, but providing uniform voting rules is certainly within their bailiwick.”
“We certainly think there’s room for improvement in our elections processes, and we welcome serious efforts to do that,” says Marsden. Toward that end, she recommends elevating the voices of local officials and election administrators in discussions about reform.
Muller hopes that legislators will spend less time reacting to the last election and more time thinking critically about how to provide the best voter experience in the next one. “I just hope they move forward,” he says.
Hatch would like to see all sides pay more attention to the actual contents of proposed legislation. “Like people, bills are complex,” he says. “It’s hard to put them in one category or other, because most of the time they have good and bad in them.”
In the face of Republican control of nearly two-thirds of state legislatures, Democrats are looking to Congress and the For the People Act to avert the worst consequences of adherence to the original “big lie” and fealty to its creator.
“If you were going to say what the two parties are doing,” says NCSL’s Underhill, “one way to put it would be that Republicans are working in the states and Democrats are working in the federal government.”
