Following the 2020 presidential election that saw historic voter turnout and later a strongly contested election result, hundreds of bills that would restrict voting access have been introduced in nearly every state across the nation.
Two bills at the federal level—S.B. 1 in the United States Senate and H.R. 1 in the House of Representatives (called the For the People Act)—both aim to expand voter access to the ballot box.
Frances Hill, professor of law and Dean's Distinguished Scholar for the Profession at the University of Miami School of Law, and Gregory Koger, professor and chair of the Department of Political Science in the College of Arts and Sciences, share their thoughts on the various efforts underway.
How would you describe the legislation being proposed and passed at the state level that some say is restricting voter rights, especially in minority communities? Will these efforts survive court challenges?
Hill: Forty-eight states have bills filed in their legislatures to amend election law. Although their proponents describe them as efforts to remove or to forestall electoral fraud, this is problematic since no one has found any evidence that there was fraud in the 2020 election. This makes the some 300-plus legislative proposals difficult to explain. If asked to describe them, one could perhaps call these bills a solution without a problem. Or one could describe them as solutions to an unidentified problem for an unacknowledged purpose.
This comment will describe some of the core provisions of these bills, most of which reflect a template prepared by the Heritage Action Center, now known as Heritage Action, which describes itself as a sister organization of the Heritage Foundation. There are, of course, variations among these enacted or proposed statutes. The Brennan Center for Justice at New York University has a very useful database that tracks these differences as updated information becomes available.
Many of the bills or enacted statutes have two major components—a voter suppression component and a vote nullification component. The voter suppression component changes voting procedures for voter registration and then casting a ballot. The vote nullification component allows state legislatures to strip authority from the state officials in charge of election law implementation, usually the secretary of state, and gives the legislatures of the various states authority to oversee the counting of votes without any evidence of fraud. The legislature is then authorized to certify the winner of an election. Both the voting suppression provisions and the vote nullification provisions are matters of grave concern. Neither is consistent with democracy.
The new procedural rules—the voting suppression provisions—may at first glance seem to apply equally to all voters, but a closer look suggests that this is not the case. The new procedural rules serve the cause of imposing rules that serve as barriers to voting. The result is voter suppression. The nature of these new rules will become burdens and barriers for voters of color, low-income voters, those who vote only infrequently, and younger voters. These potential voters lack the resources and the experience to navigate the new barriers. The difference becomes real and stark when one compares voters who travel by bus or subway with voters who have a car and can drive to the polls, those who have a driver’s license that will validate for purposes of registration and voting and provide evidence for a signature match, and those who have access to the internet for online registration and information about election procedures.
Voters who are not impacted by these procedural changes tend to live in areas likely to have shorter lines at polling places because there are more polling places per capita than there are in areas where people travel to the polling place by public transit and where there are fewer polling places per capita. Some of the more common procedural changes include limiting the number of days for early voting, whether in person or by mail. They also include imposing stricter rules on signature matching or verification of other forms of voter identification. The number of drop boxes for absentee voting would be reduced, along with restricting registration or voting to normal business hours—when people with lower salaries are given less control over their time.
The provisions disallowing giving someone a bottle of water while they are waiting in line to vote on a hot day attracted a great deal of public attention, but they only have meaning in areas that are likely to have long lines at polling places. There are provisions that permit voting monitors not merely to watch the voting process from a location inside the area in which people are voting but also to approach voters and observe how individual voters are voting. These voting monitors can challenge particular ballots as they are being cast without any evidence of fraud.
These supposed neutral rules result in outcomes ranging from inconvenience to intimidation. They will affect voters of color, younger voters, first-time voters, and minority voters who are often the majority of the population in areas with a limited number of polling places.
The vote nullification provisions empower state legislatures to take over the process of counting votes without any verifiable evidence of fraud or procedural irregularities. The statutes already enacted in Georgia and Florida include this provision. This is very worrisome in light of the widespread reports of death threats to persons charged with supervising and implementing elections, including counting the votes. Many of the new state statutes make poll workers subject to substantial civil monetary penalties or even criminal penalties for even the smallest deviation from the new rules. In recent weeks reports of resignations by poll workers have increased to the point of raising serious questions about who will supervise and implement elections procedures and vote counting in the 2022 midterm election. The possible answers are not reassuring to anyone interested in honest elections.
Post-election polling shows little public support for either of the voting suppression or vote nullification provisions.
Koger: According to the Brennan Center, 14 states have enacted new laws this year to restrict access to voting, with 18 other states actively considering restrictive measures. Common themes in these laws include new restrictions on mail-in ballots, more restrictive voter ID requirements, more frequent purges of voter lists, reductions in early voting, and fewer polling places. Meanwhile, 14 states have expanded voting access by making it easier to vote early or vote by mail.
Before 2013, these new voting laws or regulations would be suspended until they received preclearance (approval) from the Justice Department before they went into effect. In the 2013 case Shelby County v. Holder, the U.S. Supreme Court struck down Section 5 of the Voting Rights Act, giving states and counties greater discretion to enact restrictive voting laws, with the only recourse for civil rights advocates being a slog through federal courts to overturn the laws under Section 2 of the Voting Rights Act, which prohibits actions that have disparate negative impact on people of color.
The restrictive laws face a range of court challenges under Section 2. Florida’s law, for example, faces at least four different suits claiming it will lead to a racial disparity or otherwise violate federal law. However, a case arising from a 2016 Arizona law, which is pending before the U.S. Supreme Court, may result in the court limiting the application of Section 2 of the Voting Rights Act to laws enacted in 2021. In that case, the best remaining strategy for opponents of restrictive state laws is new federal legislation.
It seems H.R. 1 and S. 1 will not receive enough votes in the Senate, and any attempt to pass the For the People Act by ending the filibuster and requiring a simple majority vote is being blocked by Sen. Joe Manchin. What can Congress do to ensure everyone has the ability to vote and that effort is equitable for everyone?
Hill: It is unclear what path is realistically available. The For the People Act was passed by the House but is stalled in the Senate. Those who support the bill might consider a more targeted bill that addresses the most burdensome of the new requirements placed on individual voters, particularly voters of color and low-income persons. This would reaffirm the right of every United States citizen to vote. It is also crucial to limit the rights of election monitors to distinguish lawful activities from unlawful intimidation of individual voters as they are voting.
It is absolutely fundamental that state legislatures should not be able to certify election results that do not reflect the votes actually cast by its citizens. Americans have a right to vote and to have their votes properly and honestly counted. It would be helpful in these circumstances to understand why politicians who were elected to public office by the people are now voting for legislation that suppresses voting and nullifies votes. It has become necessary to consider whether the supporters of voter suppression and vote nullification are confident that their supporters would not experience the new provisions as barriers but that the potential voters for their opponents would be prevented from voting by these provisions. Agreeing on what provisions should be included in any alternative to the For the People Act may not be possible in this Congress.
Koger: H.R. 1 and S. 1 are broad-based election reform proposals that include public financing of federal campaigns, full disclosure of political spending, early voting and election-day registration across the country, and requiring states to establish independent commissions to draw Congressional district lines. Sen. Joe Manchin (D-WV) has publicly opposed these bills, expressing concerns about imposing election laws by narrow partisan votes, especially if filibuster reform is required to accomplish it. And, since the Democrats hold a 50-50 “majority” in the Senate based on Vice President Kamala Harris’s tie-breaking vote and no Republican will support these bills in their current form, the party needs every Democratic vote to pass them. I expect that Democrats will continue to try to persuade each other that the bill is absolutely necessary to arrest a decline in American democracy, including a violent attack on the U.S. Capitol.
Is the John Lewis Voting Rights Act the logical next step for Congressional Democrats to pursue to at least have some voting safeguards put in place at the federal level?
Hill: The John Lewis Voting Rights Act, H.R. 4, would restore the voter rights that are now being diluted by gerrymanders and other manipulation of the rules that govern the process of voting. This bill focuses on blocking voting suppression provisions but does not deal with voting nullification procedures. H.R. 4 does not address the vital issue of who counts the votes. H. R. 4 is an important piece of legislation, but the two bills are not substitutes for each other.
Koger: The John Lewis Voting Rights Act would respond to the 2013 Supreme Court decision Shelby County v. Holder by proposing a new formula for identifying states and counties subject to preclearance, or by applying the requirement nationwide. If the Act is passed by Congress and applies retroactively to all state laws and actions since 2013, it would undo a great deal of damage to voter equity. However, it would not accomplish the pro-voting reforms of the For the People Act, nor would it revamp a campaign finance system that currently distorts the American political process. Nor is it clear that the Lewis Act is any more likely to pass the Senate, given the opposition of Senate minority leader Mitch McConnell (R-KY).
Is Sen. Joe Manchin tarnishing his legacy by being an obstructionist in passing voting rights legislation? Or is he going to be lauded for bringing back bipartisanship to the Senate?
Koger: First and foremost, I think Sen. Manchin is representing his state. West Virginia voted 69 percent to 30 percent for Donald Trump in 2020, so his caution and preference for bipartisan compromise are understandable given his electoral situation. At the same time, he seems to be increasingly frustrated at his open invitations for Republican cooperation. No single senator, no rule, can convince minority party senators that it is in their personal interest to cooperate with Democrats on major legislation.
Given how Congress is so deadlocked along party lines, what do you see happening with the current filibuster situation? Do you see Democrats—and Manchin—doing something to minimize the filibuster before the 2022 midterm elections?
Hill: The filibuster, which is a Senate rule and not a constitutional requirement, can be modified in a number of ways. The Senate could vote to require only a majority vote to adopt bills that protect civil rights, including voting rights. This would keep the filibuster in place for other issues. This has already been done for the Senate confirmation of federal judges. It is unclear what changes, if any, would be supported by either political party in current circumstances.
Koger: I do not know! The current situation seems untenable, but the alternative options of major Senate reform or Republican cooperation both seem very unlikely at present.
