Spurred by the lingering partisanship of the 2020 election, states are making significant changes in voting laws that both restrict and expand ballot access. Eighteen legislatures with Republican majorities have passed 30 laws this year that restrict voting access, according to a compilation by the Brennan Center for Justice. Twenty-five states, a majority of them controlled by Democrats, have passed 54 bills that expand access, according to the compilation.
Republican states restricted access by making mail voting and early voting more difficult, tightening voter ID requirements and in some cases making faulty purges of voting rolls more likely. Democratic states that improved access did the opposite: They made mail and early voting as well as voter registration easier. Some of these states also restored voting rights to former felons.
Four states with Republican majorities — Indiana, Kentucky, Louisiana and Oklahoma — passed laws that both restrict and expand ballot access.
Democrats, including President Biden, have charged that voting restrictions initiated by Republicans echo the “Jim Crow” laws that suppressed Black voting in the South from the late 19th century until the Voting Rights Act of 1965. Republicans deny this; they claim they are only erecting barriers to voting fraud.
Neither contention has the facts on its side.
Voting Fraud Is Actually Miniscule
Several studies have found only a tiny amount of voting fraud in U.S. elections. A 20-year study of the issue by the Massachusetts Institute of Technology in 2020 found the level of mail-in ballot fraud five times less likely than the chances of being struck by lightning
“We have not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise,” FBI Director Christopher Wray, appointed by Donald Trump, testified to a U.S. Senate committee.
But Democrats are over-reaching when they compare new voting restrictions to the Jim Crow era when most Blacks in the 11 states of the former Confederacy were systematically barred from voting by poll taxes, arcane tests and violence.
Suppressing the Vote?
Despite partisan furor over the new laws, voting restrictions may not reduce voter turnout, according to an analysis by demographer Nate Cohn in the New York Times. “There’s a real — and bipartisan — misunderstanding about whether making it easier or harder to vote, especially by mail, has a significant effect on turnout or electoral outcomes,” Cohn wrote. “The evidence suggests it does not.”
Spurred by the fierce contest between Trump and Biden, Americans voted in record numbers in the 2020 presidential election, casting more than 158 million ballots. Forty-six percent of them, also a record, voted by mail.
Seven states — Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington, plus Washington, D.C. — vote entirely by mail. In 2020, because of the pandemic, ballots were also mailed to all voters in California and New Jersey.
Turnout increased nearly as much in states in which voters need to give a reason for requesting a mail ballot as in “no excuse” states in which voters can get a mail ballot simply by requesting it. A study by the Stanford Institute for Economic Policy Research found that no-excuse mail voting increased turnout a negligible 0.02%.
Stanford researchers compared turnout in Texas among 65-year-olds who could get a mail ballot without an excuse and 64-year-olds, who had to give a reason for voting by mail. The difference in turnout between the two groups was almost nonexistent.
Heavy turnout is supposed to favor Democrats, but except for the presidential race Republicans did well in the 2020 election, picking up 14 seats in the U.S. House of Representatives and flipping both chambers in the New Hampshire legislature from Democratic to Republican (the only state legislative chambers in the nation to change hands).
Big Lie Fuels Big Bill Totals
The record number of election-related bills introduced this year — 3,394, according to the National Conference of State Legislatures — has been fueled by Trump’s false claim that he won the 2020 election, but the restrictive laws owe more to a 2013 Supreme Court decision that invalidated a key section of the Voting Rights Act. Writing for a court divided 5-4 in Shelby v. Holder, Chief Justice John Roberts ruled that Section 4(b) of the Voting Rights Act requiring states that had previously discriminated to pre-clear changes in their laws with the Justice Department was unconstitutional because it was based on 40-year-old data.
The effects were immediate. Within a day of the ruling, Texas announced it would implement a strict photo ID law. Two other states, Mississippi and Alabama, began to enforce photo ID laws previously barred because of federal pre-clearance.
Democrats and Republicans have battled ever since, particularly in the South, over voting laws. But there’s a significant difference this year as some states have gone beyond changes in voting procedures and passed laws that diminish the roles of nonpartisan elections officials and strengthen the hands of state legislators or other partisan officials.
Civil libertarians have found these changes objectionable even though the most dangerous of these bills, a proposed Arizona law that would have allowed the legislature to overturn election results, was dropped. The Grand Canyon State has made it a felony for election officials to change election-related deadlines without a court order.
Arkansas will allow the partisan State Board of Election Commissioners to reprimand local election officials and decertify voting results. The bill also includes a procedure allowing the state board to conduct elections.
Iowa, as part of an omnibus bill, establishes fines for local election officials who commit technical infractions.
Georgia, also in an omnibus bill, establishes fines and penalties for local officials and establishes provisions for performance reviews of these officials.
A Texas bill would have increased the authority of the secretary of state, who serves at the pleasure of a partisan governor, over voting procedures. But this and other election-related measures died when Democratic legislators left Texas en masse in July to deprive the legislature of a quorum. Gov. Greg Abbott, however, has vowed to call an unlimited number of special sessions to pass the bills.
“These might seem like distant bureaucratic changes,” commented the Economist in an editorial about the new laws impacting election officials. “In fact, they raise the chances of a contested election that the courts cannot sort out. They weaken America’s voting system in ways that will outlast the hysteria over the 2020 result.”
States can change voting procedures without causing damage to democracy. But the United States has a tradition of free and fair elections run by officials with no partisan interest in the outcome. Legislators should leave these officials alone.
This article first appeared on State Net Capitol Journal.
Lou Cannon is editorial adviser and columnist for State Net Capitol Journal, a Lexis-Nexis publication. He previously worked for The Washington Post and is author of “President Reagan: The Role of a Lifetime.”
