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After years of all-out assaults on voting rights intended to keep voters of color and young people away from the ballot box, Republicans have a new target: groups that help people cast their ballots. However, in a major win for voting rights groups, a federal court ruled that the First Amendment protects this type of assistance.
The United States District Court of Kansas recently ruled that mailing pre-filled ballot applications to prospective voters is protected by the First Amendment rights to speech and association. Similar legislation, which targets civic engagement groups as a proxy for Democratic voters, is moving forward around the country.
“We know that disproportionately Black and brown and young voters rely on these types of organizations to help them navigate the obstacles to the voting process,” said Danielle Lang, the senior director for voting rights at the Campaign Legal Center. “So we know that not only are these types of restrictions attacking the First Amendment rights of these organizations but they’re also attacking voters, and they’re attacking Black and brown and young voters in particular.”
The barriers Lang mentions are often erected specifically to make voting more difficult for groups who typically support Democrats, such as voters of color and young voters, and therefore give the GOP an edge.
The Republican-controlled Kansas legislature passed H.B. 2332 in May of 2021 over the veto of Democratic Gov. Laura Kelly. The bill prohibited out-of-state organizations from participating in mail-in voting registration efforts and kept in-state organizations from mailing voter applications with any voter information already filled in. The legislature dropped the out-of-state prohibition after the suit was filed.
The Voter Participation Center (VPC), a voter registration and education organization, uses partially pre-filled ballot applications to encourage voters to register. By simplifying a complicated process, Lang said, groups like VPC help underserved voters exercise their rights.
“The simple explanation is that, unfortunately, some politicians don’t like it when more people have access to the ballot.” — Caren Short, League of Women Voters
VPC argued in the suit that the personalized application prohibition, which prohibits anyone but the secretary of state from sending out pre-filled ballot applications, violated the group’s First Amendment rights on two grounds — speech and association. Mailing out personalized applications communicates VPC’s pro-voter rights message and is an invitation for voters to associate with the group. The court agreed.
“This decision is a reaffirmation of the First Amendment rights of civic engagement groups, groups that do voter education and get-out-the-vote work,” Lang said. “It is a reaffirmation of those rights at a time when they are under attack across the country.”
Alabama, Florida, Missouri, Mississippi and Arizona are currently considering or have already passed legislation similar to Kansas’s H.B. 2332. These bills share some common restrictions, including signature matching — which Lang says is notoriously unreliable — and complicated procedures for obtaining and returning mail-in ballots.
“As legislatures have made the voting process opaque, they have created obstacles. An important tool we have in overcoming obstacles to the ballot box is organizations like the League of Women Voters and the NAACP and other civic engagement groups that are willing to do the work to help translate complicated voting rules into access for underserved communities,” Lang said.
These bills amount to strategic disenfranchisement, advocates say.
“The simple explanation is that, unfortunately, some politicians don’t like it when more people have access to the ballot,” said Caren Short, director of legal research for the League of Women Voters.
The League of Women Voters filed a lawsuit in state court challenging Kansas’s legislation, as well as a similar measure in Missouri that prohibited organizations from compensating anyone for registering voters and had a chilling effect on civic organizations in the state, according to multiple experts.
“The League is a nonprofit, mostly volunteer organization, but what does that mean? If you reimburse someone for lunch, for mileage, is that paying someone?” Short said. “The Missouri League has essentially had to stop their voter registration activity because they’re afraid of getting in trouble.”
The group won an injunction against Missouri just before the 2022 election, but the damage was already done. The League’s voter registration efforts in the state had already been hampered, Short said. The law remains in place as a lawsuit from the League makes its way through court.
Despite this chilling effect, the League of Women Voters registered 246,800 voters in 2022, including 35,400 new citizens and 22,800 young voters.
Republican-led legislatures seem intent on keeping underserved communities from making their voices heard, Short noted, adding that attacking voter engagement organizations and the NVRA is an attempt to silence voters.
Legislation introduced in Mississippi and Alabama would also prohibit compensation for voting registration efforts or for helping voters who need help delivering their ballot.
“The surge in anti-voter legislation that has gone unchecked and has had to be addressed by piecemeal litigation is a direct result of the Shelby County decision and the loss of Section 5 which was so vital,” Short said. “When we lost it, previously covered states are now free to unleash whatever voter suppression, anti-voter of color legislation that they wanted.”
Section 5 of the Voting Rights Act stipulated preclearance for changes to voting laws in places with a history of voter discrimination. In these cases, states needed to prove that any change to their voting laws would not have a discriminatory effect. In Shelby County v. Holder, the Supreme Court released the covered jurisdictions from preclearance requirements.
Freed from preclearance, states like Louisiana and Florida are now targeting the National Voter Registration Act (NVRA) by making voter registration near-impossible for people with past convictions. Lang of the Campaign Legal Center calls the act one of the last bulwarks of voting rights, and voter engagement organizations rely on it.
It ensures uniform opportunities to register to vote and is supposed to prevent states from erecting obstacles for eligible voters. Barriers to voter registration are designed to force legal challenges to the act, Lang said.
WhoWhatWhy recently reported that the League of Women Voters of Florida filed suit against the state over its voter registration application, which DeSantis used to orchestrate highly publicized arrests and intimidate former felons re-enfranchised by Florida voters.
“Felony disenfranchisement laws are rooted in Jim Crow,” Short said. “They were historically and specifically passed and implemented explicitly to disenfranchise Black people, Black men specifically. To this day they are still having that intended effect.”
Republican-led legislatures seem intent on keeping underserved communities from making their voices heard, Short noted, adding that attacking voter engagement organizations and the NVRA is an attempt to silence voters.
“Non-partisan organizations were responsible for the ever-growing participation of Black voters and other voters of color,” said John Cusick, assistant counsel at the NAACP Legal Defense and Educational Fund. “Any time you’ve seen access to the ballot box, it’s a threat to the status quo and white supremacy. It’s why so much energy and resources are now being devoted to resurrecting some of these similar tactics of going after voter registration.”
These tactics are justified by the myth of voter fraud, Cusick said. Republicans have not provided evidence of claimed fraud, but that hasn’t stopped Republican-led legislatures from putting up barriers to voting in the name of security.
If Black voters have historically used a mechanism for accessing the ballot box or if they have come to rely on it, that is a good indicator that states will go after that next.
The NAACP is challenging S.B. 202 in Georgia, a 98-page bill that targets drop boxes, absentee voting, and other provisions intended to make it easier for Georgians to vote. A similar bill is being considered in Florida and passed in Texas.
Among the cruelest restrictions, Cusick said, is a ban on providing food, water, and other relief to voters waiting in long lines. Wait times in Georgia are some of the longest in the country.
“It’s no coincidence that those long lines disproportionately impact Black voters,” Cusick said. “And yet the state goes after line relief under the guise of election integrity.”
Voter registration among Black Georgians has vastly increased, according to Cusick, outpacing registration among white voters. This context is vital to understanding the surge in legislation targeting voters and civic organizations.
“You see this anti-voting response following this historic Black voter participation, and you see it coated in race-neutral language under the guise of allegations of voter fraud,” Cusick said.
If Black voters have historically used a mechanism for accessing the ballot box or if they have come to rely on it, that is a good indicator that states will go after that next, he added.
This legislation is part of what Cusick describes as a cycle. More voter participation leads to an anti-voter reaction. Voters are often mobilized by these conditions, but that shouldn’t be the case.
“They shouldn’t have to out-organize, out-work, or overcome these barriers in the first place, even if they do,” Cusick said.
The American Civil Liberties Union (ACLU) has also filed suit to stop the Georgia law from taking effect. The group seeks an injunction against provisions that make it a felony to help someone receive or return an absentee ballot and limit access to drop boxes.
“This law violates the rights of thousands of Georgians under federal disability rights laws — and we won’t allow it,” the ACLU said in a tweet.
This law violates the rights of thousands of Georgians under federal disability rights laws — and we won't allow it.
We along with @ACLUofGA, @NAACP_LDF, @splcenter, @georgia_office, @GeorgiaADAPT, and @thearcga won't stop fighting for fair and equal voting rights for ALL.
— ACLU (@ACLU) May 17, 2023
Republicans’s strategic wave of legislation aimed at limiting voting rights needs to be met with an all-hands-on-deck response, advocates say.
“As states continue to evade their constitutional and statutory duties, it just increases the need for federal intervention,” Cusick said. “It needs to be on all cylinders — it’s litigation, it’s policy, it’s organizing.”
Everywhere anti-voter legislation is under consideration it has met with resistance from civic engagement groups, voters, and their allies.
“In states where legislators are trying to make things harder, you see community groups, advocates, regular people, voters are coming together to demand transparency, to demand change,” Short of the League of Women Voters said. “The people have the ultimate power here.”
Short recommends paying special attention to judicial elections in your area.
In the absence of action from Congress, courts are vital battlefields for voting rights, Short said. Judicial elections — where judges face little opposition — are increasingly important.
“It shows how political voting has become, unfortunately, how politicized the simple act of voting — who gets to vote, how easy it should be to vote — and it goes back to politicians and legislators actually passing, introducing laws that are making voting — a fundamental right — hard,” Short said. “That shouldn’t even be a thing; that shouldn’t even be a question.”
