Legislative Threats and Opportunities Update

By Erin Ferns Lee May 16, 2016

Photo-Tony-Webster-viaCreative-Commons

As primary season begins to wind down in the next several weeks, we can expect to see voter registration efforts ramp up.

In 2016, many states proposed new laws that, if passed, would affect voters’ access to the ballot in the November elections. Fortunately, far more positive reforms were introduced than negative, with automatic voter registration (AVR) a particular favorite among lawmakers. AVR laws were proposed in at least 24 states, and passed with bipartisan support in Vermont and West Virginia. (Though, it should be noted, West Virginia’s law comes with some strings attached).

It’s not time to celebrate just yet: not only have at least four states and U.S. Congress proposed controversial proof-of-citizenship requirements, many more have proposed over a dozen bills that would restrict voter registration in less obvious ways.

In Virginia, lawmakers passed a problematic voter registration bill that would have rejected potential voters over minor omissions on their voter registration applications. Governor Terry McAuliffe, fortunately, vetoed the bill.

And it appears that more states are moving or passing legislation to include provisions to expand voter access, while also including other provisions that make it harder to register or vote. For example, both Wisconsin and West Virginia passed beneficial voter registration policies (online registration voter and automatic registration, respectively), but both bills also erected new barriers to the ballot.

In the case of West Virginia, this compromise came with a voter ID provision that is relatively tame compared to other states. However, at least one study shows that voter ID laws, no matter how lenient, can deter turnout by confusing or intimidating voters. And Ohio looks like it may finally pass it’s 2015 online voter registration bill, but with a new amendment to put off implementation until after the 2016 presidential election.

Voter ID and felony voting rights have also created a stir this election season with significant developments in Missouri and Virginia.

Read on for a breakdown of popular voting issues in 2016 or visit Project Vote’s bill tracking tool for more information.

Opportunities in Voting Rights

AVR-LEGISLATION-MAP-MAY-2016

This spring, West Virginia and Vermont passed automatic voter registration laws that would essentially register to vote eligible citizens who interact with their local motor vehicles offices. Vermont’s new law is especially noteworthy for its explicit inclusion of National Voter Registration Act requirements, which includes important protections and benefits. So far, at least 24 states have considered AVR, and Project Vote has worked in several states to support these efforts and advise on best practices.

ONLINE-LEGISLATION-MAP-MAY-2016

Online voter registration (OVR) is a policy that is so popular for its cost-savings and convenience, it is already offered (or will soon be) in two-thirds of the states. Nearly every remaining state that does not offer OVR proposed to pass it this year, with successful enactments in Mississippi, Rhode Island, Tennessee, and Wisconsin. (Wisconsin’s OVR law, unfortunately, was paired with a provision that hampers community voter registration drives.) Meanwhile, Ohio looks to be shaping up to be the 38th state to pass OVR, though it likely will not go into effect until 2017.

RESTORATION-LEGISLATION-MAP-MAY-2016

Voter disenfranchisement and criminal justice are high profile issues that have one thing in common: they disproportionately affect communities of color. In 2016, at least 17 states proposed 37 bills to help alleviate the burden of disenfranchisement laws. These proposals range from giving citizens notice of their voting rights upon release from incarceration, to outright restoring voting rights to citizens who are no longer serving time.

The most significant fight to restore voting rights is taking place in Minnesota, but the effort is reportedly an “uphill battle.” The new bill (SF 2381) would effectively restore voting rights to 47,000 Minnesotans who are on “post-release supervision.” While the issue of voting rights restoration has growing bipartisan support in the state, it is not expected to pass in 2016 because the Republican-controlled House is divided on the issue.

Virginia is also noteworthy for its felony voting changes in 2016, though they were not legislative. Governor McAuliffe recently used his executive power to restore voting rights to 200,000 Virginians. Virginia was home to one of the strictest disenfranchisement laws, which are attributed to suppressing the vote of people of color, particularly black citizens, McAuliffe said. The governor’s order will remain in effect until at least the end of his term in January 2018.

Threats to Voting Rights

PROOF-OF-CITIZENSHIP-LEGISLATION-MAP-MAY 2016

This election cycle, anti-immigrant sentiments have apparently helped drive presidential campaigns, and inspired the introduction or reinstatement of harsh requirements for documentary proof-of-citizenship when registering to vote.

Currently, every voter applicant must affirm citizenship status under penalty of perjury, and rightfully so. However, at least four states and the U.S. Congress have introduced bills that exceed this requirement, proposing to force citizens to provide documentary proof-of-citizenship with their voter registration applications. These types of policies have been challenged and continue to be challenged in courts across the country.

Louisiana has recently come under fire for its own archaic version of proof-of-citizenship requirements, which create unfair hurdles for naturalized citizens to register to vote. The state is being sued by civil and voting rights advocates over a 100-year-old law that forces naturalized citizens to provide documents proving citizenship when registering to vote—a practice that has ended in most states for its discriminatory impact.

RESTRICTIVE-VR-LEGISLATION-MAP-MAY 2016

Policies to restrict voter registration are not always as obvious as proof-of-citizenship requirements. In fact, at least nine states proposed more than a dozen bills that would make voter registration more difficult in a plethora of ways. Such laws:

  • Restrict AVR and require proof-of-citizenship;
  • Amend same day registration laws by either requiring additional ID or closing the polls early;
  • Restrict or eliminate community voter registration drives; and
  • Impose excessive application and residency rules to register to vote.

The application and residency rules are perhaps the most easily overlooked, but they could lead to disenfranchisement. Such rules allow or require the outright rejection of registration applications for minor application errors or omissions. This includes information that is duplicative or unnecessary to assess voter eligibility on an application. In 2016, the Florida and Virginia legislature both passed such bills. Fortunately, Florida’s HB 541 was amended so that an applicant would not be rejected over errors, and the governor vetoed Virginia’s bill.

VOTER-ID-LEGISLATION-MAP-MAY.2016

Voter ID laws have been around for a decade, with 33 states currently requiring some form of voter ID. Every year, numerous states attempt to join the strictest of voter ID states with legislation to require photographic, government-issued ID to vote in any election. In 2016, 12 states have proposed 24 bills to require voter ID.

Missouri—which had its original voter ID law struck down as unconstitutional back in 2006—has been home to an annual fight to bring the problematic law back to the state. The only way this can be done, however, is if the legislature passes a constitutional amendment, and then presents it to voters as a ballot initiative in the next election. With voter’s approval, voter ID will become law. Last month, the bill appeared to have stalled, but the decade-long fight to bring it back persisted.

Early this month, the bill finally passed with some “compromise” elements to allow voters to show utility bills, bank statements, and paychecks in lieu of photo ID. While this may be a welcome change to most, state Democrats warn that if voters approve the constitutional amendment in November, the Republican legislative majority will replace the compromise law with the strict voter ID requirements that they have fought for over the last 11 years.

West Virginia recently enacted a voter ID/AVR combination bill, HB 4013, requiring voters to provide government-issued photo ID—which can include student or military ID—or else vote by provisional ballot. Though the new law is less restrictive than traditional voter ID laws, state Democrats criticized the bill for targeting elderly voters and voters of color, who may not have required ID and who would have to cast unreliable provisional ballots.

It goes without saying: neither Missouri nor West Virginia has a history of voter impersonation fraud, the only type of fraud that can be prevented by photo voter ID laws.

Conclusion

In the last presidential election, only 71% of people were registered to vote, and even fewer voted. While we’ve seen several states adopt modern voter registration policies (and at least a couple that only passed when paired with problematic “compromises”), there are still several states that have proposed to make that statistic worse by undermining access to voter registration.

More states should be making efforts to ensure that citizens have a meaningful opportunity to register to vote, and to keep their registrations up-to-date, if the elections in 2016 and beyond are truly going to reflect the will and needs of the American people.