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In my last article, I reviewed some of the voting rights expansion legislation that is being passed or debated by various US state legislatures. But while there is much to celebrate about the expanded voting rights contained in these bills, the reality is that they’re being dwarfed by the onslaught of voter suppression bills that are dominating red states’ legislative agendas.
A Solution Looking for a Problem
That most of this legislation amounts to a solution looking for a problem does not seem to inhibit the bills’ sponsors and supporters from pushing through these measures, the impacts of which range from the draconian to the subtle. Former President Donald Trump’s own “Voter Fraud Commission” disbanded without issuing a final report. Why? Because they found virtually no evidence of voter fraud during the 2016 election in the 20 states they investigated.
And, when it comes down to it, neither has anyone else. A review by Republican Ohio Secretary of State Frank LaRose, for example, found that out of 5,883,999 ballots cast in the 2020 general election in his state, there were only 27 that were cast illegally. If you’re keeping score at home, that works out to 0.00046 percent of ballots cast. Not even a problem, let alone a crisis. It’s not even what a statistician would call “noise.”
And yet, on this flimsiest of pretexts, hundreds of laws and regulations are being passed or debated that will in one way or another make it more difficult to vote and thereby, barring some miraculous backlash of indignation, reduce the number of voters. So why let the facts get in the way of such a noble purpose?
The Why and Hows of Voter Suppression
Voter suppression legislation is introduced for one overriding reason: to create a partisan advantage and win elections. But, incidental or deliberate, it may also have a secondary sinister effect: contributing to the further erosion of trust in our election processes.
Both effects would play into the hands of a minority that knows it is a minority and has no plan to do anything about that other than putting thumbs on the electoral scales to transform itself into a power-wielding faux “majority” — with authoritarianism lurking as a Plan B should the thumbs prove too light.
Voter suppression comes in two forms: structural suppression and targeted suppression.
The Electoral College is a classic example of structural voter suppression, which might better be called a baked-in distortion of the electoral phase of the democratic process.The idea of “one person, one vote” has indeed been an illusion since the country’s earliest days. Since each state gets awarded electors based on the sum of its numbers in the House and Senate, the result is that small states get extra votes. For example, residents of Wyoming have four times more voting power for president than do those of California.
The practical impacts of this systemic suppression have been substantial. Four times in the history of our country, a presidential candidate has won the popular vote by a significant margin only to lose the election owing to the built-in imbalance caused by the Electoral College. Two of those instances have given us our last two Republican presidents and there is a serious threat of a repeat in 2024.
In the case of the Senate, the distortion and consequent imbalance are even more extreme: As of the last census, half the US population enjoys representation by 83 senators, the other half by only 17. And naturally the smaller, rural and red, states benefit dramatically from this imbalance. In this case, looking again at Wyoming and California, the Senate representation ratio is roughly 40-1 in favor of the people of the sparsely populated red state.
The Democrats must struggle chronically and mightily against this built-in constitutional gradient to remain competitive in Senate representation, giving conservative senators like Joe Manchin (D-WV) and newly independent Kyrsten Sinema (I-AZ) a whip hand over everything from legislation to appointments to rule-making.
And of course, for much of its history, the Land of the Free saw no compelling reason to permit women or Black people to vote, and that was baked into the Constitution until amendments altered its design — in the case especially of Black would-be voters, a prohibition only to be replaced by Jim Crow hurdles.
Disproportionate Impacts Are Rarely Accidental
Which brings us to targeted suppression. These efforts include instituting voter ID laws, limiting early voting, banning voter drop boxes, and purging voter rolls. These methods are usually targeted at would-be voters of color, the elderly, young voters (particularly students), urban dwellers, renters, and people with disabilities. We will present below a state-by-state analysis of actions such as these that are being debated and passed in statehouses throughout the United States.
We note as well that some targeting efforts are less superficially obvious than others. Selectively purging voter rolls — especially with algorithms that fail to completely and uniquely identify the targeted voter, so that other legal voters with similar identities are also purged, which tends to disproportionately purge non-white voters — is an example of obvious targeting. So is closing or consolidating polling places in venues where targeted constituencies are concentrated. If vehicular ownership becomes a precondition to voting because the voting “center” is now five miles distant, and if you simultaneously criminalize group travel to those distant polls, you have just disproportionately suppressed the vote of poorer voters who do not own their own cars.
The impacts are easy enough to observe, if one can overcome the impulse to just look away:
Less obvious, on the other hand, would be something like rejecting proposals to move Election Day from Tuesday to a weekend day. Tuesday voting would seem to impact all voters, but in fact takes a greater toll on working-class, 9-to-5 voters, single-parent families, and those whose workplace is distant from their homes.
It’s no secret why Republicans have fought to keep Election Day to a single weekday affair:The reality is that elections are won and lost in the cold realm of integers.
Any “reform” that conveys numerical advantage — whether by making it easier for “your” voters to vote or harder for “their” voters to vote — must therefore be regarded, prima facie, as conceived in large part to convey that advantage. It is, to be blunt, one big process game with all eyes — whatever “principled” pretexts have been advanced — riveted on outcomes.
The 2013 Shelby County v. Holder decision by the Supreme Court served to facilitate much of this cynical legislation by striking down two provisions of the Voting Rights Act of 1965. The first established a formula to determine which states and localities demonstrated a history of voting rights violations. The second required the jurisdictions identified by this formula to obtain “preclearance” from the federal government before making any changes to their voting laws.
As a result of this rather disingenuous decision — which was predicated on the fantasy that such racial discrimination was a thing of the past, posing no threat going forward — it is now far easier for state officials to limit voting opportunities for persons of color.
Some State Examples
Let’s examine a by-no-means-exhaustive sampling of these voter suppression bills that unfortunately have been signed into law in a number of US states.
As part of this survey, I will also present comments by legislators and others who have opposed this legislation, and what the reasoning behind this opposition is. I will then report on some restrictive legislation that was vetoed by two governors, and on a serious threat that lies ahead.
Florida
FL SB 7050, signed into law by Gov. Ron DeSantis (R) on May 24, runs to 2763 lines of text and has 52 sections. It covers a lot of ground and a comprehensive analysis would be eye-glazing. That, unfortunately, is the case with a number of “election integrity” reforms, in which little nuggets of suppression are buried deep in a vast statutory or regulatory pudding.
The main thrusts of SB 7050 serve to:
- Tighten voter ID requirements, particularly for first-time voters, by subjecting voters to more and higher administrative hurdles, which in turn makes it easier for suppression-minded administrators, at state or county or even precinct levels, to block or discourage voters, and to do so selectively.
- Make it more difficult for third-party voter registration organizations — crucial to the process of registering minority, non-home-owing, and younger voters — to operate by: prohibiting noncitizens from assisting in their work; requiring annual organizational re-registration in place of one-time registration; tightening deadlines for processing registration forms; prohibiting the use of critical voter information by such organizations.
- Shift responsibility for verifying that all qualification hurdles have been successfully cleared from election administrators — who fully understand and are able to keep centralized tabs on the fulfillment of such requirements — to the individual would-be voter, who is apt to be lost at sea trying to suss out the complexities of state election law. (A telling example of such difficulties played out with the 15 ex-felon voters arrested by DeSantis’s election police for illegally attempting to vote, when they believed in good faith that they had satisfied the deliberately ambiguous state requirements for reenfranchisement — a show of force not lost on other would-be Florida voters harboring even a small doubt regarding their status.)
- Impose or increase fines and jail time for a host of violations by both individuals and organizations, giving the state and counties power to punish and intimidate, and thus discourage, both get-out-the-vote organizations and would-be voters, especially marginal voters.
State Sen. Geraldine Thompson (D) had no trouble finding these “little nuggets” and comprehending their cumulative effect. “This really is suppression,” Thompson said. “Just like poll taxes. That was suppression. Just like violence against people who wanted to vote was suppression.”
A coalition of groups including the ACLU of Florida sent a letter to legislators objecting to numerous parts of the bill. In their letter, they state:
This bill sends mixed signals to voters, and in some cases may dissuade eligible citizens from voting altogether. It also continues the state’s pattern of behavior in abdicating its role in verifying voter eligibility and passes that responsibility on to average citizens, who do not know the complexities of election law.
The Florida Conference of the NAACP, the Hispanic Federation, and the League of Women Voters all filed suits in federal court challenging several provisions of SB 7050 on constitutional grounds. The result at the district court level was something of a split decision.
Chief Judge Mark E. Walker, of the US District Court for the Northern District of Florida — who in 2022 had struck down provisions of an earlier suppressive “reform,” FL SB 90 — on July 3 temporarily blocked two provisions of SB 7050:
- Barring noncitizen volunteers from conducting voter registration activities on behalf of third-party voter registration organizations.
- Criminalizing routine retention of voter information for any purpose except voter registration, making it a felony to maintain voter information for other activities, such as get-out-the-vote efforts.
In making his ruling, Walker, mincing no words, stated: “This case arises from Florida’s latest assault on the right to vote.”
On July 10, the Florida attorney general and secretary of state appealed Walker’s ruling to the 11th Circuit. However, these two provisions of SB 7050 remain blocked, pending that court’s review.
Two other disturbing provisions of SB 7050 — one prohibiting individuals with certain felony convictions on their record from handling voter registration applications, the other imposing cumbersome restrictions on third-party voter registration organizations — survived Walker’s initial review on the grounds that the plaintiffs would likely be found to lack standing to challenge those provisions. The two plaintiffs were given 14 days to file an amended complaint to continue the case; on July 24, the plaintiffs refiled.
The changes to Florida voting laws are integral to the ongoing obliteration of democracy in the Sunshine State. On a yearly basis, DeSantis and the Legislature he dominates continue to separate citizens of Florida from their civil and constitutional rights.
Those most affected are, of course, members of the BIPOC community, senior citizens, LGBTQ+ individuals, young people, the poor, the selectively incarcerated, and, frequently, people with disabilities.These unfortunately have historically been the groups that have faced the most voter harassment and intimidation.
Changing what is acceptable as a form of voter ID, limiting early voting periods, eliminating voter drop boxes, or prohibiting the practice of giving out water to people who wait in long election lines are all forms of voter suppression that target specific sectors of our population. The full spectrum of voter suppression laws and regulations ranges from the egregious to the subtle. The impact — and therefore, we must conclude, the idea — of most if not all of them is to disenfranchise and intimidate some portion of voters who seek to participate in our democratic processes, and to do so selectively and disproportionately, with prejudice.
Idaho
HB 340, signed into law by Gov. Brad Little (R) on April 4, requires all individuals to present proof of identity and proof of residency when registering to vote. Existing law required voters only to prove their residency and make an oath or affirmation of their identity. To prove their identity under HB 340, individuals would have to produce one of the following:
- A current Idaho driver’s license or ID card.
- A current passport or other ID issued by the federal government.
- A current tribal identification card.
- A current Idaho concealed-carry permit.
Notably, the bill excludes student IDs from the list of acceptable IDs for registration and removes them as an option to prove residency. The state recently enacted HB 124, removing student IDs from the list of acceptable IDs for voting as well, a move that has drawn two lawsuits for discriminating against younger voters.
Youth voter engagement organization Babe Vote and the League of Women Voters of Idaho filed a lawsuit in state court against Idaho Secretary of State Phil McGrane (R) challenging HB 124 on the basis that it was enacted in order to make voting “more difficult for young voters and specifically for Idaho students, whose school IDs are no longer sufficient for voting.”
March for Our Lives Idaho filed a parallel lawsuit in federal court challenging HB 124, charging that the law violates the 26th Amendment of the US Constitution, which prohibits denying voting rights to those who have attained the age of 18 “on account of age.”
During a hearing on the bill, state Rep. John Gannon (D) asked whether HB 340 violates a section of the Idaho Constitution that states no person shall gain or lose residency for voting in elections while they are a student at any institution of learning. Gannon received no response from the committee.
The effect of HB 340 and HB 124 is to cull students from the voting process. The bills were presented as an attempt to cut down on voter fraud by students, a premise based on myth and completely lacking in factual support. Idaho has historically experienced very little voter fraud. The conservative Heritage Foundation has found only 10 instances of voter fraud in Idaho since 2004. And as for students: “There have been no recent instances of fraud that we’re aware of using student IDs,” said McGrane’s spokesperson Chelsea Carattini.
Go home, students; step right up, gun owners: It’s hard to miss the partisan impact of Idaho’s latest targeted suppression push.
Arkansas
SB 258, signed into law by Gov. Sarah Huckabee Sanders (R) on March 24, includes the following reforms:
- Prohibits an election employee from establishing or using a drop box to collect absentee ballots.
- Prohibits anyone from delivering absentee ballots to a drop box.
- Requires absentee ballots to be delivered by mail or by hand delivery, as determined by the county clerk.
State Sen. Clarke Tucker (D) spoke out against it:
Where you drop mail at the post office, that’s not staffed. You can stuff as many items into a drop box at a post office as you want… So how does the risk for fraud exist in a drop box that does not exist with sending items through the mail?
State Sen. Tyler Dees (R) replied:
Each drop box across the country acts as a beacon of mistrust for voters. I do believe it increases the potential for fraud… There’s the potential for someone to do the same things that we’re talking about with drop boxes through the mail, but by allowing drop boxes, it only intensifies the opportunity.
In reality, drop boxes remain a safe and secure way to vote.
In May of 2022, the Associated Press surveyed top election offices in each state and asked whether the use of drop boxes was connected to fraudulent votes or stolen ballots or whether the boxes and/or the ballots within were damaged during the 2020 election cycle. All but five states responded to the survey.
The results? None of the offices reported any instances of voter fraud or stolen ballots tied to the boxes. Also, there were no reported incidents of damage to the boxes or ballots that would have affected the election results.
South Dakota
On March 21, South Dakota Gov. Kristi Noem (R) signed 12 election bills into law. These bills include HB 1165, which effectively bans drop boxes in the state, along with “ballot harvesting” — a practice of vital importance to disabled, homebound, and other less-mobile would-be voters, and one long derided but recently embraced by the GOP in many states.
Native Americans face the biggest hurdles in attempting to vote by mail in South Dakota. Most of the post offices on reservations are small and in some cases limit entrance to only one family at a time. Also home mail delivery on some reservations is limited, so people have to drive long distances to pick up and send mail. And a significant amount of this populace does not have access to a reliable vehicle, further hindering their ability to vote by mail and making ballot “harvesting” a critical service for many.
The bill also is all but certain to lead to more rejected absentee/mail-in ballots and to up the pressure on and selective intimidation of in-person voters by expanding the role of “poll watchers,” trained and mobilized in large numbers by the GOP in recent elections for that very purpose.
A majority of county auditors opposed HB 1165. South Dakota did not record a single case of voter fraud or other election-related crimes tied to the use of ballot drop boxes in 2020 or 2022, according to a survey that drew responses from 58 of 66 counties. “I think we’re trying to correct a problem that doesn’t exist,” said Harding County Auditor Kathy Glines.
Noem has not ruled out running for president in 2024. Signing restrictive bills like HB 1165 serves to burnish her credentials with the Republican Party, given its post-2020 “Stop the Steal” enthusiasm for restricting drop boxes and limiting mail-in voting in Republican-controlled states across the country.
Wyoming
- HB 279, signed into law by Gov. Mark Gordon (R), adds identification requirements for voters requesting a mail-in ballot in person. The bill went into effect on July 1.
- HB 47 adds new guidelines for the certification of electronic voting machines, responsive to suspicions raised by and misinformation disseminated by Trump’s Stop the Steal campaign.
The ACLU of Wyoming spoke out against HB 279, saying:
ID laws deprive many voters of their right to vote, reduce participation and stand in direct opposition to our country’s trend of including more Americans in the democratic process.
Mississippi
SB 2358, signed into law March 23 by Gov. Tate Reeves (R), limits who can assist voters with disabilities in returning their completed mail-in ballots. It stipulates that only election officials, postal workers, family members, household members, or caregivers can help voters with disabilities return their completed mail-in ballots and imposes criminal penalties and fines on those who violate the law.
Disability Rights Mississippi, the League of Women Voters of Mississippi, and three voters filed a federal lawsuit charging that the law makes it harder for voters to cast their ballot and “also risks disenfranchising entirely blind, disabled, or low-literacy voters.” They add that the law impacts “all aspects of the voting process … regardless of the method by which the voter lawfully chooses to vote.”
On July 25, the District Court granted the plaintiffs’ request to block SB 2358, ruling that the bill violated Section 208 of the Voting Rights Act of 1965 (52 U.S.C. §10508). Under the court’s order, Mississippi voters who need assistance owing to disability, blindness, or inability to read or write may legally engage someone of their choice to assist them with delivering or returning their mail-in ballot.
Peg Ciraldo, co-president of the League of Women Voters of Mississippi said of the ruling, “Mississippi voters in need of assistance to vote can be assured that their voices will be heard at the ballot box.”
Indiana
HB 1334, signed into law May 1 by Gov. Eric Holcomb (R), would require voters who request mail-in ballots via a paper form to include two forms of ID: the last four digits of their Social Security number and either their 10-digit Indiana ID number or a unique identifying number from their voter record.
Julia Vaughn, who leads the nonpartisan elections watchdog group Common Cause Indiana, argued the bill was unnecessary, stating:
It’s a bill that is out of balance. It’s a bill that over-emphasizes concerns about the security of voting by mail at the expense of easy access for voters and smooth administration by county election officials. And it does so with little to no proof that such restrictions are necessary from a security perspective.
Gubernatorial Opposition to Restrictions
The foregoing is just a sampling of the “bad” bills made law in red states. And it all could have been worse. If not for governors in red or purple states who vetoed some of the more heinous legislation, voting rights would have taken a far greater hit.
For a few examples, in Arizona, suppressive election bills that Gov. Katie Hobbs (D) vetoed included the following:
- A measure that would have forced future Arizona secretaries of state to not perform any of their duties in races in which their name is on the ballot. Hobbs noted that the secretary of state is the chief election officer for the state and that there is no a priori reason to question their impartiality.
- A mandate to remove people from the acting early voting list if they are not an early voter in every election cycle. In vetoing this piece of legislation, Hobbs wrote: “I stand ready to sign bills that make voting more accessible, accurate and secure. This bill accomplishes none of these goals.”
- A provision allowing representatives of both major political parties to challenge election officials on the authenticity of a signature on an early ballot. Hobbs stated that it would create unnecessary burdens for election workers and raise Arizona voter privacy concerns.
Kansas Gov. Laura Kelly (D) vetoed a bill that would have required that all advance voting ballots be returned by 7 p.m. election night. This legislation would have eliminated the current three-day grace period for mail-in ballots, a grace period frequently used by members of the military who are stationed throughout the country or abroad.
In Louisiana, Gov. John Bel Edwards (D) vetoed HB 260, a quiet legislative power grab that would have required election officials to get permission from the Legislature to implement federal standards/directives/best practices.
In his veto, Bel Edwards wrote that the bill “would insert politics into the administration of elections and voter registration,” and that passage of such legislation “would violate Article 2, Section 2 of the Louisiana Constitution, which provides that elections are conducted by local officials and the executive branch.”
More Threats on the Horizon
And the threats and battles continue. To take just one example of the ongoing campaign to undermine voting rights and selectively shrink the electorate, Texas will reintroduce three election-related bills that seek to further burden voting in the Longhorn state by:
- Authorizing a ban on the use of countywide polling places on Election Day (thereby forcing would-be voters to return to their home precinct within voting hours).
- Permitting the secretary of state to appoint election marshals to enforce the election code and address violations.
- Increasing the penalty for illegal voting from a misdemeanor to a felony.
Voter Suppression at the Federal Level
On July 10, House Republicans introduced the American Confidence in Elections (ACE) Act, an all encompassing “election integrity” bill. ACE, referred to by House Administration Committee Chairman Bryan Steil (R-WI) as “the most conservative election integrity bill to be seriously considered in the House in over 20 years,” includes almost 50 standalone bills focused on multiple Republican priorities, such as tightening registration and voting requirements, encouraging voter purges, and further loosening campaign finance regulations.
ACE is, in essence, the GOP’s answer to the Democrat-sponsored, rights-expanding, and filibuster-doomed PAVE and SAFE Acts of previous sessions — and might reasonably be called the Anti-John R. Lewis Voter Rights Advancement Act.
The bill would:
- Require a photo ID to vote, both in-person and by mail.
- Ban same-day voter registration and require annual list purging, without protecting against broad-brush purging algorithms.
- Prohibit community ballot collection and restrict drop boxes.
- Bar universal mail-in voting.
- Mandate signature verification for all mail-in ballots.
- Direct election administrators to count only those mail-in ballots that are received before the polls close on Election Day.
- Further limit public financing of campaigns.
- Make it harder for students to vote.
- Give the congressional majority an expanded role in monitoring state and local election administration.
ACE mandates these changes first for Washington, DC, elections and then, by extension, as a prescribed nationwide overhaul. The impacts are dramatic. For example, in barring universal mail-in voting, it would effectively nullify the statewide processes adopted by a number of states, including Oregon, Washington, Colorado, and California.
The stench of hypocrisy could knock one over. When rights-expanding Democratic bills came before Congress, Republican opponents argued strenuously that the conduct of elections was strictly a matter to be left to states and local administrators — an argument that obviously does not apply to rights-contracting Republican legislation.
This is a familiar “flexibility” when it comes to the “principles” of federalism: No sooner had the Dobbs decision overturned Roe v. Wade and returned abortion regulation to the states, where the GOP strenuously insisted it belonged, than congressional Republicans began work on federal legislation to ban abortion nationwide.
It appears that MAGA Republican strategists recognize that achieving even draconian levels of structural and targeted voter suppression in the red states they control will not suffice to lock in their ascendency at the federal level. As the ACE Act makes clear, scattered fiefdoms are not enough for a party bent on permanently ruling the nation.
But ultimately the principle to be defended here is nonpartisan — it is democracy itself. Stacey Abrams said, “Any voter denied a say in democracy has been harmed, and a remedy is in order regardless of the effect on an electoral outcome.”
We must heed Abrams’s words, focus on fair and genuinely democratic processes rather than desired outcomes, and stop harming our citizens. The fate of our republic hangs in the balance.
Greg Simbeck, based in Minnesota, reports on politics and elections for WhoWhatWhy.
