The national battle over voting rights and “voter fraud” will play out in Washington over the next months in relation to the Kobach-Pence commission and the resistance to it. But in the meantime, issues have been joined this spring in state legislative sessions around the country. And the resulting scorecard may surprise you.
Back in November, when the dust settled after the election, the numbers on partisan control of legislatures seemed stark and frightening for advocates of voting rights and election reform. Republicans controlled both chambers in 31 states, and had the full “trifecta,” including the governor, in 24. In sharp contrast, Democrats controlled both houses in only 13 states, and had trifectas in a mere six. Looking at these numbers, at the post-Shelby decision absence of Voting Rights Act preclearance protections, and at the radically changed posture of the Justice Department, many feared an onslaught of voter-suppression legislation that would create an even more diminished electorate for the elections of 2018.
Well, it’s now the end of June, and while some legislatures are still in session, the great majority have finished their business for the year. Several states have indeed passed bad bills. But, overall, the results are significantly better, both in staving off voter-suppression efforts and in expanding voting rights and voting access, than one might have expected as the sessions began.
First, A Few Real Successes
Perhaps the most remarkable outcome this year is in Illinois, which has a Democratic legislature and a conservative Republican governor, Bruce Rauner. Last year, the legislature passed an automatic voter registration (AVR) bill with bipartisan support, but Rauner vetoed it.
Under automatic voter registration, people who go to the DMV, and potentially other agencies as well, are automatically put on the voter roll, unless they opt out. In Oregon, which was the first adopter, AVR has added several hundred thousand voters to the rolls.
In Illinois, an AVR bill was reintroduced this year and, remarkably, passed both chambers with unanimous votes. While Rauner has 60 days to sign the bill, all indications are that he will, joining Illinois with eight other states and the District of Columbia where AVR is being implemented, and showing that maybe, at least in Illinois, encouraging people to register and vote doesn’t seem like a partisan trick.
The victory was also the work of a broad and determined coalition of voting-rights and election-reform advocacy groups, under the rubric of Just Democracy. Brian Gladstein, Executive Director of Common Cause Illinois and one of the leaders of the coalition said:
This bill will bring over one million eligible voters into the electoral process in Illinois. During a time of heightened partisanship in Springfield and across the nation, we have demonstrated that breaking down barriers to the ballot box can be achieved and supported by both Democrats and Republicans.
AVR still has a good chance to pass in other states. In Rhode Island, an AVR bill passed the House unanimously and a positive vote in the Senate is expected shortly. Governor Gina Raimondo has said she will sign it if it comes to her desk. In Massachusetts, where the legislative session goes on all year, an AVR bill with 102 legislative sponsors has been heard in committee (23 speakers in favor and none against), and could be before the full legislature in the fall.
In some other states, AVR made headway but was eventually blocked. These include Maine, New Mexico, and Nevada. In Nevada’s case, the bill passed both houses, but was vetoed by Republican Governor Brian Sandoval. A ballot initiative on AVR now goes to the voters, who will have the chance to approve it in the November 2018 general election.
In addition to automatic voter registration, other real gains were made. Utah expanded opportunities for early voting and absentee voting. New Jersey improved its processes for military voters and Indiana improved its registration process at the motor vehicle department.
Another issue where progress was made, though halting and slow, is restoration of the right to vote for citizens with felony convictions. Forty-nine bills were introduced in 16 states to restore voting rights to formerly incarcerated people who have served their sentences. A real victory occurred in Wyoming, which enacted a bill providing that people who completed their sentence after January 1, 2010, do not need to submit an application for restoration of voting rights and will automatically be issued a certificate of restoration.
In Florida, where 1.7 million citizens can’t vote due to the state’s lifetime ban on voting by people with felony convictions (1.5 million have fully completed their sentences), the broad and bipartisan Florida Rights Restoration Coalition has made major strides. The Florida Supreme Court has approved language for a proposed ballot initiative to restore voting rights to ex-felons; now the job is collecting 700,000 signatures on the petition in order to be on the ballot in November 2018.
In Minnesota, the Restore the Vote Coalition got a bill to more effectively restore voting rights through one house of the legislature. And in Nebraska, the state’s conservative unicameral legislature passed a bill to restore voting rights to citizens upon release from incarceration by a 27-13 margin, but the bill was vetoed by Governor Pete Ricketts. (Nebraska voting-rights advocates also derailed a proposed constitutional amendment requiring voter ID.)
Now for the Bad News
To be clear, and clear-eyed, the move to make voting more difficult and restricted continues, and several states enacted laws designed to limit the vote in one way or another. The forces bent on restricting the vote have won significant victories over the last several years, though many of the laws have been successfully challenged in court. In fact, of the worst voter-restriction bills that passed this year, a majority were actually efforts to re-pass laws struck down in court, altered in order to make them more judicially acceptable.
· Iowa enacted a law, championed by Secretary of State Paul Pate, which includes restrictions on voter-registration drives; hindrances to Election Day, early, and absentee voting; strict voter-ID requirements; and—most troublesome—the right to purge voter rolls of “non-citizen” names without any clarity on who and how such decisions to purge are made. This could lead to significant numbers of eligible voters being disenfranchised.
· New Hampshire passed a bill restricting registration for students and low-income voters by requiring proof of residency for those who register 30 days before the election, with investigation and criminal penalties for failure to comply. (A component to eliminate same-day registration was dropped from the bill.)
· In Arkansas, a voter-ID law, modified after courts struck down an earlier, similar law, was passed and signed. The law reinstates the requirement that a voter must provide one of a narrow choice of IDs at the polls. In addition, the legislature put a constitutional amendment requiring voter ID on the 2018 ballot.
· In North Dakota, the only state that doesn’t require voter registration at all, the governor signed strict voter-ID requirements into law. The bill was softened somewhat, particularly in regard to the Native American community, to avoid the fate of the 2016 version of the law, which was struck down in court.
Why Less Carnage?
No one wants to be naïvely optimistic, or to underestimate how much damage has already been done in states by determined efforts at voter suppression. Racially charged and politically motivated efforts continue at every level to find ways to discourage people from registering and voting. In the wake of Shelby, these efforts have multiplied and will continue to do so.
But, overall, the results in the 2017 legislative sessions were not nearly as bad as seemed likely last November. There was not a deluge of major voter-suppression legislation. Some bad bills were passed, a number were weakened as they made their way through the legislative process, and a significant number were sidetracked along the way. Two main reasons for this seem clear.
First, the courts, both state and federal, have played a significant role in preventing extreme assaults on voting. Prodded by strong litigation efforts from voting-rights organizations, in state after state, courts have found voter-suppression efforts unconstitutional, blocking their implementation. In addition to the direct effects of the cases, their cumulative impact has been to caution and restrain advocates of restrictive legislation from overreaching.
Second, it is deeply encouraging to see the growing power, sophistication, and rapid response capabilities of the movement for an inclusive democracy. In state after state, coalitions were activated, or created, to fight back against the efforts to stifle, shrink, and bleach the vote.
And the advocates didn’t just play defense. Despite the potentially unfavorable partisan makeup in so many states, the affirmative action for expanding the right and ability to vote continues to make headway—winning in some states, gathering momentum for future victories in others.
And there is one other cause for optimism worth noting. I recently attended a conference of 200 legislators and election officials from around the country, co-convened by the National Conference of State Legislatures (NCSL) and the Democracy Fund. The focus of the event was election technology and administration. There was strong and bipartisan support for improving election machinery, combating the challenges of cybersecurity, and fighting for adequate funding to run elections in the best way possible. This is one of the reasons that online registration and automatic voter registration are making real progress; they are technical improvements as well as access expansions. The election officials take their responsibilities seriously, and if legislators, state and national, would take their cues, bipartisan progress just might become more possible.
Thanks to Cecily Hines for research and perspective for this column.