The battle for control of Congress in this fall’s midterm elections may be decided in state legislatures this spring when voting rights legislation could be in bloom.
So far this year, at least 16 bills aimed at making it harder to vote have been introduced in eight states, according to the Brennan Center for Justice at NYU School of Law. The proposals include a mix of photo ID requirements for voters, curbs on voter registration activity, cuts to early voting opportunities and new barriers to absentee voting.
Meanwhile, 144 bills to expand voter access have been introduced in 22 states. Many call for automatic, same-day and online voter registration. Others would expand absentee and early voting.
And with the legislation, campaign-style rhetoric has heated up.
“Republicans seem to come up with a whole variety of ways in which they want to restrict the number of people who get to the polls. And that’s just not good for democracy,” said former U.S. Attorney General Eric Holder, who now chairs a group seeking to elect more Democrats to office. “It seems to me that Republicans see that they can’t necessarily win the game, so they’re trying to change the rules.’"
But Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, said Holder’s comments were “a complete and total lie.”
A member of the now-shuttered Presidential Advisory Commission on Election Integrity, von Spakovsky questioned Holder’s assumptions about Republican lawmakers’ motives. “(Holder’s) assuming that laws — for example, asking (voters) for IDs — that that’s being done by Republicans in order to prevent people from voting. And I just don’t think there's proof that shows that," von Spakovsky said.
Ever since the Supreme Court gutted the main provisions of the Voting Rights Act in the 2013 Shelby v. Holder decision, state proposals to increase access to the ballot box have far outnumbered bills that would restrict access.
“That’s in contrast to what happened in 2011 and 2012 when we saw a wave of voting restrictions passed,” said Jonathan Brater, counsel for the Brennan Center’s Democracy Program.
While voting rights advocates are heartened by the trend, the Brennan Center noted in 2017 that “of the legislation making the most substantial impact on voting access, more legislation to limit participation is advancing toward passage."
As Republicans try to retain control of both legislative chambers in 32 states — despite an embattled GOP president and energized Democratic voters — bills restricting voter access could make a sudden comeback this election season, Brater said.
“Often times, restrictive bills move through very quickly and without much process. So just because we haven’t seen (a lot of) them yet, doesn’t mean they aren’t going to happen,” Brater said.
While the recent rise in President Donald Trump’s approval ratings are boosting GOP optimism toward the mid-term races, voting rights advocates fear Republicans might turn to so-called “voter suppression laws” as a bulwark against major Democratic gains. A strong Democratic showing could give the party more control of the redrawing of electoral maps after the 2020 Census and potential control of one or two houses of Congress.
With so much at stake, Holder and other voting rights advocates say they would not be surprised to see GOP-controlled state legislatures pass more measures creating barriers for voters who traditionally support Democrats. All of the most extreme restrictive laws that flourished from 2010 to 2012 were passed by GOP-controlled statehouses, Brater said.
Fourteen states had new voting laws deemed restrictive by critics on the books for the first time in a presidential election in 2016. Civil rights groups said the laws helped shave one- to two-percent of eligible voters in key states, which aided in the surprising election of President Donald Trump.
Others say those fears are being overstated. Even if the laws do have that effect, there’s legal recourse through restraining orders, temporary injunctions and other measures, said Logan Churchwell, communications director for the conservative Public Interest Legal Foundation.
“To say, ‘Look out. Red-state Republicans, who are most likely white, might change your election laws and harm people who are likely black or brown. And there’s nothing you can do except scream really loud.’ That’s the opposite of reality,” Churchwell said.
The measures being proposed in statehouse across the country share similarities.
This year in Nebraska, a proposal would require photo IDs to vote, while a New Hampshire bill would impose more restrictions on that state’s voter ID law.
Another bill in Nebraska and a similar one in Virginia would make absentee voting more difficult. Legislation in Indiana calls for shrinking the early voting period and a Utah bill would allow election officers to do the same in some situations.
In Indiana, Mississippi, Nebraska and New Hampshire, new proposals also call for more aggressive purging of inactive and ineligible voters from state registration rolls, presumably to prevent alleged voter fraud.
The Public Interest Legal Foundation has also sent letters to 248 counties and cities in 24 states threatening legal action if they don’t apply similar “maintenance” to their voter rolls as required under the National Voting Rights Act.
The foundation and other conservative groups advocate a range of measures they say are intended to combat voter fraud, promote voter ID efforts, improved administration of elections and voting equipment standards.
Churchwell, of the Public Interest Legal Foundation, said the localities all had more registered voters than voting-age adults in their jurisdictions. He said that’s a sign the voter rolls haven’t been properly updated to remove the deceased and those who relocated.
But civil rights groups, including Brennan, Demos and the Lawyers’ Committee for Civil Rights Under Law, sent these same counties a separate letter warning that PILF’s efforts were “inconsistent” with the National Voter Registration Act of 1993 and that their “claims of improper list maintenance are baseless, and its demands are not required by federal law.”
“We were very concerned that counties would begin taking actions (based on the PILF letters) that they shouldn’t take, are not obligated to take and that would harm legitimate voters on the rolls,” said Stuart Naifeh, senior counsel at Demos.
In their letter, the groups said voter rolls can be bloated because people thought to have moved can’t be taken off the rolls unless they confirm their relocation in writing or a waiting period has elapsed. And because large-scale purges can’t be conducted within 90 days of a federal election, many ineligible names can remain on the rolls as Election Day nears and rolls swell with even more new voters.
Naifeh said PILF began suing small counties in largely Hispanic areas of Texas, then predominantly black counties in Mississippi and have now moved on to heavily Democratic counties in key swing states, like Florida’s Broward County, North Carolina’s Wake County and the city of Alexandria in northern Virginia.
State capitals are not the only battleground.
The U.S. Supreme Court will decide this year whether Ohio’s purge process overseen by its Republican Secretary of State, Jon Husted, is constitutional.
Ohio has the most stringent purge process in the country, sending a confirmation notice to registered voters when they fail to cast a ballot in a single two-year federal election cycle. If voters don’t respond to the letter and fail to vote in the next two federal elections over a four-year period, their names are removed from the rolls.
Voting rights advocates say the policy violates the National Voter Registration Act, which doesn’t allow purges base on voter inactivity. If the high court backs Ohio’s policy, it would be a major setback for Democrats in the run-up to the mid-term elections.
“My worry is it would be a green light for people across the country to do what has been happening in Ohio,” said Ohio Democratic Party Chairman David Pepper. “Anyone across the country who’s inclined to make voting harder will immediately just start doing the same thing. That’s the real damage. It would nationalize a policy that’s already a real problem in our state.”
Blaine Kelly, a spokesman for the Ohio Republican Party, said in a statement that the policy, which goes back decades, is more lenient now than it was when Democrats were in power.
“The Democrats can’t hide from history,” Kelly wrote, “and their manufactured outrage over this case is hypocritical at best.”
These and other efforts to restrict voter access — along with partisan gerrymandering that favors Republicans — have accelerated since 2010, Holder said.
That’s the year a GOP wave election swept large numbers of Republicans into state office. Since then, 10 states have imposed stricter voter ID laws, seven have made voter registration more difficult, six have cut early voting opportunities and three have made it harder for people with criminal records to restore their voting rights.
While laws limiting voter access typically make it more difficult to cast ballots, partisan gerrymandering can be just as problematic because it “manipulates the way votes are counted and gives certain voters disproportionate voting strength compared to others,” Brater said.
In 2011, Republicans controlled the entire redistricting process in 19 states and drew 213 congressional district maps, the vast majority of which were gerrymandered in favor of Republicans, critics say.
Holder’s new group, the National Democratic Redistricting Committee, is targeting nine gubernatorial races and 20 state house races in 12 key states this year, hoping to elect Democrats who will exert more power when state and congressional electoral districts are redrawn in 2021 based on data from the decennial census.
The group will focus resources on states like Florida, Michigan, North Carolina, Ohio, Pennsylvania, Texas and Virginia where extreme partisan maps have provided 16 to 17 extra congressional seats for Republicans since 2010, according to a 2017 Brennan Center report.