Monday, March 8, 2021

Voting Rights Hanging in the Balance

By Susan Roberts

Following the historic turnout in Election 2020, states across the country are contemplating or crafting legislation to change access to the ballot box. According to the Brennan Center for Justice, these restrictive proposals are born of the claims of voter and election fraud widely circulated by President Trump and his supporters. The Brennan Center, the go-to tracker of such legislation, estimates that around 240 pieces of restrictive legislation have been introduced in 43 states. Moreover, these proposed regulations are not limited to “swing” or “battleground” states. As of March 4, North Carolina has not passed any such legislation this year, but given controversial efforts in the last ten years, it may be simply a matter of time until such proposals come to the General Assembly.

By and large, there was agreement by state officials that 2020 was one of the most free and fair elections in recent memory. Indeed, a recent report from The Hoover Institution, an influential and conservative think tank, used rigorous statistical modeling to evaluate the claims of election illegalities and found no validity to support fraud allegations. The failure of the over fifty lawsuits contesting elections results further debunks claims of election corruption.

Four considerations can shed light on the issue of voting rights changes following Election 2020: (1) the number and scope of proposed regulations, (2) the pending Supreme Court case of Bronovich v. Democratic National Committee, (3) the package of proposed changes in Georgia, and (4) the potential long term impact of the claims of voter fraud.  

First, the number of proposed changes for voter access to the polls is striking and so is the variety of proposed changes.  Regardless of the directions of these changes, they are undoubtedly a result of a contentious 2020 election.  Research by the Pew Research Center in 2018 reveals a public that is more nuanced in proposals for election law changes. About three-fourths of Americans support requiring a government issued photo identification for voting. On the other hand, about three-fifths of Americans support allowing convicted felons to vote. Additionally, roughly three-fifths support automatic registration of eligible citizens and Election Day registration. 

Second, the Supreme Court heard oral arguments on March 2 in the case of Brnovich v. the Democratic National Committee (DNC). The case involves two provisions in Arizona elections law which the DNC considers racially discriminatory under Section 2 of the Voting Rights Act of 1965. Simply put, the DNC is challenging the regulation on the discarding out of precinct ballots and the regulation criminalizing the collecting of ballots by individuals other than family members, often referred to as “ballot harvesting.” These are seen by voting rights activists as efforts to suppress voting for persons of color. Of special concern are Native Americans in Arizona. Beyond the case itself, the 6-3 conservative split on the Court is attracting national attention.

Third, the national spotlight concerning restrictive voting laws is on Georgia. With over ten proposed changes in voting rights laws, Georgia has become the “poster child,” if you will, of limits on voter access. Every media outlet covered Trump’s now infamous plea for Georgia’s Secretary of State Brad Raffensberger to find 11,779 votes so he could win the state. Even a cursory glance at the proposed changes in the separate pieces of legislation strongly suggest voter suppression rather than election protection.   For example, SB 71 would end no-excuse absentee by mail, while SB 73 would not allow political parties or affiliated groups to send out absentee ballots. 

One of Georgia’s most publicized restrictive bills aims to eliminate Sunday voting. For years, Black churches have publicized and rallied congregations to the polls. Even with Covid 19 and virtual church services, African Americans were able to use Sundays to mobilize voting. Of course, the “Souls to the Polls” initiative is not limited to Georgia. 

Arkansas, Florida, Wisconsin, North Carolina, Ohio, Texas, Louisiana, Oklahoma, and Indiana are among several states using Sunday voting to encourage early voting by African Americans. The proposed changes in Georgia extend well beyond such regulations. Even taken separately, these proposed regulations make voting more complicated. Taken together, the proposals would confuse, and even confound, the average voter. Critics see these proposals as designed to suppress reasonable access to the polls. 

It’s not the first time a narrative on voting rights has focused on Georgia. Laughlin McDonald’s "A Voting Rights Odyssey: Black Enfranchisement in Georgia" (2003) examined restrictive national voting laws as they impacted Georgia. Examining laws from the days of the Civil War and the “white primary” to redistricting in the 1990s, McDonald writes:

“while Georgia was not an anomaly, no state was more systematic and thorough in its efforts to deny or limit voting and officeholding by African-Americans after the Civil War.” 

McDonald concludes more optimistically as he chronicles individuals and members of  “the legislative black caucus” with making small advances in ameliorating racial tension in town and cities across the state. 

Fourth, the barrage of tweets from President Trump, the slew of lawsuits alleging massive voter fraud and the numbers of Congress members voting not to certify the Electoral College results have eroded universal trust in American elections.  As the assault on the Capitol of January 6 reveals, some individuals used violent means to protest an election they see as “rigged” and “stolen.” A December Politico/Morning Consult poll showed seventy percent of Republicans think the 2020 election was unfair. 

Additionally, Americans in general are concerned about a fragile democracy, one where the norms of fair elections and the peaceful transitions of power were questioned. Despite finding no evidence of allegations of fraud in the 2020 election, Pippa Norris of Harvard’s Election Integrity Project argues that the diminished voter confidence in elections presents a serious challenge for Americans. 

Indeed, this wide array of proposed legislation to change voting rights, the recent and widely publicized caution to “Plan Your Vote” may have a more expansive meaning for upcoming elections.  There is, however, another side to this saga of proposed voting restrictions. The John Lewis Voting Rights Advancement Act, introduced last year, seeks to remedy restrictions from the 2013 Supreme Court decision which compromised Section 5 if the Voting Rights Act dealing with preclearance, a stipulation that certain states and jurisdictions submit voting regulation changes to the Justice Department for approval. 

On March 4th the U.S. House passed HB 1,  For the People Act of 2021 by a 220-210 vote. This ambitious piece of legislation tackles not only restrictions on voter access but campaign finance as well. In addition, a February Brennan Center report counts 541 various proposals in 37 states aimed at expanding voting access. While many of these are filed in New York and New Jersey, this is encouraging news for voting rights advocates.  North Carolina is one of the handful of states that has proposed neither stricter nor more permissive voting rights legislation. 

What does all of this mean for voting rights in this country? Perhaps the Hoover Institution's report provides the most sobering assessment of where we find ourselves as a nation when they write “the Trump campaign delivered a blueprint for losing candidates to undermine support for the winner or even steal the election.” Given the nation’s extreme partisan polarization and partisan antipathy, chances for agreement on voting reform seem slim. Coupling that with the deep divisions within state legislatures and potential redistricting fights, the path for consensus seems doubtful.


Dr. Susan Roberts is a professor of political science at Davidson College. She tweets at @profsuroberts.