— Senate Minority Leader Mitch McConnell (R-Ky.), in a floor speech, Jan. 5
Democrats in the Senate have pressed for an up-or-down vote on legislation that they say will strengthen voting rights. The Freedom to Vote Act would override many state laws and set national standards such as a minimum of 15 days for early voting, mail-in ballots and universal rules for voter identification. Another bill, the John Lewis Voting Rights Advancement Act, would strengthen and restore parts of the 1965 Voting Rights Act and make it easier for voters to challenge state voting rules.
Republicans have said the legislation is unnecessary and tilted to favor Democrats. They have especially pushed back against statements by Democrats that laws passed in GOP-controlled states since the 2020 election are intended to dampen voting by people of color. “There’s been a lot of talk about big lies,” McConnell said Jan. 4, referring to former president Donald Trump’s false claim that he lost the presidential election because of fraud. “Well, the ‘big lie’ on the other side is that state legislatures controlled by Republicans are busily at work trying to make it difficult for people to vote.”
A McConnell spokesman said he was referring to the specific claim that the new laws are aimed at people of color. He provided nearly a dozen examples of Democratic lawmakers such as Schumer suggesting these are “Jim Crow” laws. That phrase refers to a system that, before passage of the 1965 Voting Rights Act, systematically denied Black Americans their constitutional right to vote through “literacy tests,” poll taxes and other measures.
President Biden — who is speaking Tuesday in Atlanta to press for the voting legislation — six times has used similar language, according to a search of transcripts on factba.se, including claiming the laws were “Jim Crow on steroids.”
As we have noted before, that’s rhetorical overkill. Unlike the Jim Crow era, these laws do not prevent Black people from registering to vote. Many of these laws are the subject of litigation, however, and it will be up to the courts to decide whether they are intended to dampen voting by minority groups. As a reader service, we’ve combed through the lawsuits and countersuits to identify the key provisions that are under fire in four states — and why.
One thing worth noting: The Justice Department so far has only filed suit against the laws in Georgia, alleging “racial discriminatory provisions.” Although the Justice Department has filed suit over the Texas law, it has not made a similar race-based claim in that instance. Instead, it has argued that the law improperly restricts assistance that can be given to voters. However, it filed a statement of interest in private litigation against the Texas law that the Justice Department said raises “plausible claims of intentional discrimination.”
Whether a law is intended to reduce participation by people of color is often hard to document. Few lawmakers these days are going to openly advertise that this is their intention. Voting rights advocates such as Sean Morales-Doyle, acting director in the Democracy Program at the Brennan Center for Justice, said it is curious that some states changed their laws after they experienced sharp increases in minority participation, especially through mail-in voting. But that by itself is not evidence of bias.
Moreover, the picture is murky because many states opened up new but temporary avenues to vote, such as via absentee ballots or drop boxes, because of the coronavirus pandemic. So laws might end up being more restrictive post-2020 — but less restrictive when viewed through a pre-pandemic lens.
Even what are termed “restrictive laws” in red states may be less restrictive than existing laws in blue states. Georgia tightened rules on absentee ballots, but the provisions are still more generous than in New York. Should Georgia be compared to New York — which has historically restricted the use of absentee ballots? (That’s the argument the state makes.) Or should the new laws be considered in the context of Georgia being historically more expansive about the use of absentee ballots? (That’s the argument voting rights advocates make.)
All told, at least 19 states in 2021 passed 34 laws that are more restrictive on voting rights, according to a count by the Brennan Center, a liberal group challenging some of the laws in court. Meanwhile, at least 25 states enacted 62 laws with provisions that expand access. The actions mirrored previous trends. “The states that have enacted restrictive laws tend to be ones in which voting is already relatively difficult, while the states that have enacted expansive laws tend to have relatively more accessible voting processes,” the group says.
The nonpartisan National Conference of State Legislatures (NCSL) says “an astounding 3,676 election bills were introduced” in 2021, with 285 bills across 42 states and two territories becoming law. “Absentee/mail voting was a popular topic, due in large part to the historic expansion of absentee and vote-by-mail options precipitated by the pandemic in 2020,” the NCSL says. “Even so, only a handful of states drastically expanded or limited absentee/mail voting, a larger chunk made changes to ballot collection rules, and addressed a feature of the process that, until 2021, wasn’t much of a legislative issue: ballot drop boxes.”
Another wrinkle is that the Supreme Court’s 2021 ruling in Brnovich v. Democratic National Committee appears to have weakened a section of the Voting Rights Act that targeted discriminatory results, such as whether a law leads to minority voters registering or voting in lower numbers. In the 6-to-3 opinion written by Justice Samuel Alito, the court said election laws should be examined with “consideration of ‘the totality of circumstances’ that have a bearing on whether a State makes voting ‘equally open’ to all and gives everyone an equal ‘opportunity’ to vote.” In other words, a law may stand if it added the “usual burden of voting” on a relatively equal basis to all voters.
Biden’s narrow victory in Georgia — along with Democrats winning two Senate seats in runoff elections — was one of the big surprises of 2020. Georgia had been considered a reliable state in the Republican column.
The Justice Department complaint, filed before the Brnovich ruling, highlights several provisions in the law, claiming the legislature enacted them knowing they would disproportionately affect Black voters. The lawsuit framed this action against the backdrop of the state’s “history of discrimination” against Black voters and the dramatic increase in the use of absentee ballots by Black people that led to narrow victories for Democrats.
- Prohibiting government entities from mailing unsolicited absentee ballot applications and imposing substantial fines on third-party organizations that send follow-up absentee ballot applications.
- Requiring most voters who lack certain identification numbers to photocopy another form of identification each time they request an absentee ballot, reducing the time in which voters may apply for an absentee ballot, and restricting the use and availability of drop boxes to return that ballot.
- Prohibiting distributing food and water to voters waiting in line to cast their ballots
- Prohibiting counting out-of-precinct provisional ballots unless they are cast after 5 p.m. on Election Day
Georgia, in its response, which was filed after the Brnovich ruling, argued that the law actually increased voter access, reflecting “lessons learned” from conducting an election during a pandemic. Moreover, it says that the Justice Department is singling out Georgia and has failed to demonstrate that the law “denies Georgians the right to vote based on race, considering the totality of circumstances.”
“Many of the provisions of SB 202 that DOJ calls ‘discriminatory’ and even ‘racist’ are the law in many states, including Delaware, New York, Rhode Island, New Jersey, Maryland, and Wisconsin,” the complaint says. “Yet DOJ is not suing those states, nor has it sued others controlled by Democrats that have laws far more restrictive than Georgia’s.”
The drop box provision is an example of how the pandemic has complicated how one can interpret the changes. The Justice Department lawsuit notes that emergency rules allowed for expanded use of drop boxes to return absentee ballots. In the 2020 cycle, four major metropolitan counties with large numbers of Black votes surrounding Atlanta — Cobb, DeKalb, Fulton and Gwinnett — had 111 drop boxes. Nearly 60 percent of the absentee ballots that were returned were placed in a drop box.
The new law mandates the use of drop boxes in all counties, thus expanding Georgians’ statutory ability to vote using drop boxes compared with the pre-pandemic era. But it places a limit based on population size or number of early-voting locations, so the four counties surrounding Atlanta would be limited to a total of 23 drop boxes, according to the Atlanta Journal-Constitution.
Moreover, under the law drop boxes would only be available during voting hours and must close permanently at the close of the early-voting period — the Friday before Election Day. In effect, the drop boxes could only be used when people would be voting in person anyway.
Trump won Texas by almost six percentage points, but amid heavy turnout Biden significantly increased the popular vote for the Democratic ticket compared with 2016. Some congressional races have been decided with narrow margins of victory.
The Justice Department complaint was relatively narrow, alleging that provisions of the Texas law deny eligible voters meaningful assistance in the voting booth and require rejection of mail ballot materials for immaterial errors or omissions.
The lawsuit claimed that assistance provisions would affect “voters with limited English proficiency, voters with disabilities, elderly voters, members of the military deployed away from home, and American citizens residing outside of the country.” Specifically, the law required a new oath, under penalty of perjury, that prevented people who assist voters from answering a voter’s questions, explaining the voting process, paraphrasing complex language and providing other forms of voting assistance.
Regarding mail ballots, the new law expands on Texas’s already strict requirements on the use of mail ballots. Voters must provide their driver’s license number or the last four digits of their Social Security number when applying to vote by mail — and those numbers must match the information contained in the individual’s voter record. “Conditioning the right to cast a mail ballot on a voter’s ability to recall and recite the identification number provided on an application for voter registration months or years before will curtail fundamental voting rights without advancing any legitimate state interest,” the Justice Department argued.
The private litigation, led by many groups that represent the interests of Black and Latino residents, targets those provisions but also aims at elements of the law that barred drive-through voting, the use of movable structures as polling places and 24-hour early voting. The lawsuit claims that these provisions successfully raised minority participation in the 2020 election and that the Texas legislature targeted them under unproven claims of ensuring election integrity.
Texas has filed motions seeking dismissal of the lawsuits, largely on technical grounds of standing and jurisdiction. But it has argued that the lawsuits also fail on the merits. For instance, “Texas’s accommodations [for the disabled] may not match Plaintiffs’ preferences perfectly, but they are not required to do so,” the state said in one filing.
The Texas law also has elements that could be viewed as expanding voter rights. It increases the minimum number of hours for early voting and allows voters to correct minor mistakes on their mail ballot, such as a missing or illegible signature.
Trump easily won Florida, but the 2018 Senate race was close. Turnout by Black voters soared in 2020, with a significant number voting by mail. The number of mail ballots from Black voters more than doubled in 2020 compared with 2018 and 2016.
A variety of civil rights groups have filed lawsuits against a new law that would limit ballot drop box locations and limit their use to early-voting hours. During the 2020 election, most of Florida’s counties provided at least one drop box that was available 24 hours a day, seven days a week. The law also makes it illegal for volunteer organizations to help voters return mail ballots.
“These restrictions on drop boxes will have a disproportionately heavy impact on Black and Latino voters, who tend to have stricter and more unpredictable work obligations that limit their availability during normal voting hours,” one lawsuit says. “These restrictions will also disproportionately burden individuals who have less flexibility in choosing to travel to a drop box exclusively during early voting hours,” noting that the percentage of Black Floridian workers who use public transportation is six times higher than that of White voters.
Florida, in seeking to dismiss the complaints, argues that restrictions on drop boxes do not prohibit a person from voting. As for the claim that some voters cannot get time off from work to vote, “those voters could presumably vote in-person during the weekends in the early-voting period at one of the locations — which are usually centrally located near business districts,” the state said in one filing.
This is a fairly Republican state in presidential years, but Democrat Jon Tester narrowly won reelection to the U.S. Senate — by fewer than 18,000 votes — in 2018, largely on the strength of support from Native American voters. Tester won 75 percent of the vote in Glacier County and 65 percent of the vote in Big Horn County — both areas where Native Americans are a majority of the population.
A new law would prohibit any person who distributes, orders, collects or returns another person’s ballot from receiving any pecuniary benefit (such as money). Western Native Voice and Montana Native Vote, nonprofit groups that collect ballots, have filed suit, saying the law aims to make it harder for people to vote on sprawling reservations, as both groups rely on paid organizers to collect ballots.
The reservation of the Blackfeet Nation, which joined the suit, is about the size of Delaware and is snowbound at least eight months of the year. But it had only four drop boxes in 2020. The suit says that many houses on the reservation do not rely on mail delivery and share post office boxes and vehicles, so they rely on others to pick up and deliver mail. Blackfeet also hired ballot collectors in 2020, paying $20 an hour. “Nonprofit plaintiffs pick up and drop off ballots on the Blackfeet Reservation,” the suit says. “If nonprofit plaintiffs were not able to perform this function, less Blackfeet members would be able to vote.”
Another new law eliminated Election Day registration, which 8,000 voters used in 2018. The suit says this law also disproportionately affects Native Americans, who often lack Internet access with which to print the required forms and live long distances from polling places.
Montana, in its response, denied the allegations. It said the bills were “neutral and nondiscriminatory” and “supported by rational, compelling and state interests.”
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