Legislative Threats and Opportunities Update

By Erin Ferns Lee November 21, 2016
Photo: Marco Verch via Creative Commons
Photo: Marco Verch via Creative Commons

The 2016 election is over. Over the course of this election year, new laws went into effect at polling places in 14 states across the country. But, several states also implemented positive reforms designed to help more eligible citizens get on the voter rolls, like automatic voter registration (AVR).

While advocates and lawmakers have slowly worked over the last 50-plus years to make the democratic process more inclusive, efficient, and modern, the future of voting rights remains uncertain. During his campaign, Donald Trump perpetuated unfounded fears of voter fraud and election rigging. And, in an undemocratic twist, he inspired his supporters to commit crimes, including voter fraud and voter intimidation tactics on Election Day.

More worrisome still are the individuals Mr. Trump intends to appoint to key positions in the federal government, as many of them have made career-long investments in the narrative of voter fraud and the need for more restrictive voting laws.

This is not okay or normal. And it’s not just politics as usual.

The 2016 presidential election was the first in over 50 years to take place without the full protections of the Voting Rights Act. The Supreme Court’s gutting of that law in 2013 cleared the way to implement new laws that helped block the vote in several states on Election Day, and which will continue to hinder voters in future elections.

So, though 2017 is considered by many people to be an “off-year,” it will still require vigilance on the part of voters, advocates, and lawmakers to ensure no new laws undermine our democracy when Americans next have the opportunity to elect members of Congress in 2018, to choose a president in 2020, or to vote in future elections. (Many of the most suppressive voting laws—like North Carolina’s notorious omnibus bill HB 589 in 2013, and Indiana’s strict voter ID bill in 2005, were passed in “off-years.”)

Below, we outline some of the voting policies that came up most frequently in 2016, and which we are also preparing to monitor in 2017. Visit Project Vote’s bill tracking tool to monitor these issues and more.

Opportunities in Voting Rights

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By far, the most commonly proposed reform in 2016 is automatic voter registration. Twenty-five states and United States Congress proposed AVR, a clear sign that lawmakers are increasingly on board with taking the onus of registering citizens to vote (and keeping registration rolls up-to-date) off of citizens and putting it onto government.

Automatic voter registration passed in Vermont and West Virginia. It also passed in New Jersey and Illinois, but governors in both states vetoed the measures, citing fears of “voter fraud.” New Jersey Governor Chris Christie shut down A1944, making the baseless claim that it was a “cocktail of fraud.” Illinois Governor Bruce Rauner, a Republican, was concerned that ineligible people would be added to the voter rolls, but expressed interest in working with Democrats and Republicans in the state legislature to fix those issues.

Last week, Illinois lawmakers announced plans to override Governor Rauner’s veto of Senate Bill 250. So far, the Senate successfully passed the override bill and it awaits House approval.

AVR seems to have even more potential to reach across party lines beyond the legislatures. Voters in Alaska—considered a thoroughly red state—approved a ballot initiative to automatically enroll citizens to vote through the state’s Personal Fund Dividend Division, which manages the state’s widely distributed annual oil-wealth payouts. Most AVR policies are based around finding unregistered eligible voters through motor vehicle databases. Alaska’s version of the policy, however, “could create one of the most complete and accurate U.S. state voter registries of all time,” wrote Josh Eidelson at Bloomberg Businessweek. This is because “[n]ot everyone gets a driver’s license, but in Alaska, almost nobody neglects to sign up each year to get their free dividend check.”

Overall, AVR has great promise, and would be best implemented at the federal level so that it may benefit all voters. But so far, the federal bills have remained stagnant, and seem less likely to advance in the 115th Congress.

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While AVR is the post popular policy reform in the country, online voter registration (OVR) is the most widely adopted. Five states passed OVR, including Idaho, Ohio, Rhode Island, Tennessee, and Wisconsin. Despite its generally bipartisan support, however, policies in Ohio and Wisconsin did not pass without strings attached.

In Wisconsin, the new law also included a problematic provision that suppresses voter registration drives. And Ohio’s new law was amended to go into effect after the 2016 presidential election, missing the opportunity to gain new voters in the swing state.

Most OVR policies require an electronic signature on file with the state, usually through the state motor vehicles agency. As we know from discussions on voter ID and AVR, not all citizens have a driver’s license, which excludes them from the ease of registering to vote online. This year, Pennsylvania demonstrated how to improve upon an existing OVR policy by using everyday technology: the commonwealth now allows voter registrants to upload an image of their signature online, the same way people can endorse checks when online banking. 

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Early voting is widely used where it is available, which is a significant majority of states. This fact makes lawmakers in those states react in one of two ways: expand early voting to accommodate more voters or reduce its effectiveness by cutting off days, like we just saw in Ohio and North Carolina.

Although it is only modest improvement, a few states have proposed adding early voting days or sites. Maryland and Louisiana passed new laws to expand on early voting.

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Six states and the U.S. Congress proposed bills to repeal or expand existing voter ID laws.

Like early voting expansion, any viable efforts to dismantle restrictive voter ID laws are typically modest in that they add to the list of acceptable ID. Bills to outright repeal voter ID have not gained traction in 2016.

Florida adopted SB 666 to expand the list of acceptable voter ID to include veteran health identification cards, government employee IDs, and licenses to carry a concealed weapon or firearm.

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Millions of citizens are banned from participating in our democracy due to past felony convictions. Communities of color are particularly affected by these historically racist policies, as they are overrepresented in the criminal justice system.

To address this huge gap in the American electorate, voting rights restoration policies have slowly gained bipartisan support in the last few years.

Despite the growing support, however, it’s still an uphill battle. For example, Minnesota’s SF 2381 had a provision to restore voting rights to Minnesotans, but the provision didn’t survive the amendment process. Other states, like Alabama and California passed bills that would alleviate some of the onerous restrictions on voting rights. In California, AB 2466 helps clarify who is eligible to vote, ensuring that a term in county jail doesn’t result in the loss of voting rights. Project Vote supported this legislative effort. 

Threats to Voting Rights

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Voters cannot cast a ballot in most states without an up-to-date voter registration status. With that, voter registration is the biggest target to block access to democracy. There are numerous ways this can be done, from the egregious repealing of voting laws known for increasing turnout to seemingly innocuous administrative changes like residency requirements.

In 2016, about seven states proposed laws that would hamper voter registration.

Colorado and Wisconsin passed new laws to inhibit voter registration drives, which are known to boost registration rates among historically underrepresented citizens.

And excessive application or residency requirements, although significantly less sexy as an issue, have a real potential for voter disenfranchisement. Florida and Virginia attempted to pass such requirements, which would be cause for rejecting voter applications over minor errors or omissions. Fortunately, Florida’s HB 541 was amended so that applicants would not be rejected over errors, and the governor vetoed Virginia’s bill.

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For years, xenophobia and anti-immigrant rhetoric have hyped fears of illegal voting by noncitizens and influenced dangerous voting policy, like proof-of-citizenship requirements.

Proof-of-Citizenship policy proposals exceed federal mandates—which already require Americans to affirm citizenship under penalty of perjury—by forcing citizens to show documented proof whenever they register to vote. Related bills were introduced in four states and U.S. Congress, but did not gain traction in 2016. This may change, however, under a Trump presidency.

“Congressional Republicans are likely to push for new restrictions on a national level, such as requiring proof of citizenship to register to vote in federal elections,” wrote Ari Berman at The Nation last week. “Trump will staff his administration with right-wing zealots obsessed with voter fraud, like Kansas Secretary of State Kris Kobach, a key member of his transition team.”

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New voter ID laws passed in two states and several went into effect for the first time during the 2016 elections. These policies—in their traditional form of straight, strict voter ID—have received a lot of pushback over the years and have begun taking new shapes in order to pass.

Missouri Republicans have battled for years to restore the state’s original voter ID law, which was struck down as unconstitutional under the state constitution in 2006. They finally got what they wanted after passing a bill to put it on the November ballot for voters to decide. Missourians overwhelmingly approved the constitutional amendment and can expect to show ID starting in July.

West Virginia’s HB 4013 goes into effect in 2018, requiring voters to show a range of government-issued ID, including student or military ID, as well as utility bills and bank statements.

These new policies are contentious, and for good reason. It’s already well known that the issue behind the policy, voter impersonation fraud, is exceedingly rare. And it is known that many citizens do not have ID, and therefore cannot vote. (It is estimated that as many as 300,000 Wisconsin residents lacked the ID necessary to vote, in a state that Donald Trump won by 27,000 votes.) Now that voter ID has been around for a couple of major elections, we can also see other pitfalls. Specifically, free ID is not implemented fairly or consistently and the mere existence of voter ID laws in general is likely to cause confusion among voters.

According to Pew Research Center, more than 30 percent of all voters in non-voter ID states believe they have to show ID to vote when, in fact, they do not. Worse, more than half of historically underrepresented black and Latinx voters mistakenly think they have to show ID to vote. So, not only are certain populations unable to vote because they do not have ID, an unknown number of votes are lost due to confusion over faulty voting policy.

To help mitigate this problem, Project Vote partnered with Vote Riders and other groups this election cycle to help citizens understand and procure the ID they needed to vote in 2016. This work is key as we can continue to expect more creative forms of voter ID bills that are designed to pass, such as compromise bills, expanded voter ID lists, and ballot initiatives.

Conclusion

On November 8, a dismal 58 percent of eligible citizens decided the fate of the nation. While some blame disillusion and apathy for this low turnout and apparent lack of faith in the democratic process, we can also point the finger at the laws that take away early voting days, block community engagement in voter registration activities, and require excessive and redundant documentation to register to vote or cast a ballot.

Without the protections of the Voting Rights Act—and with state legislatures newly emboldened by a White House, and soon perhaps a Supreme Court, that accepts the misguided narrative of widespread “voter fraud”—we can only expect to see more of these laws succeed in the coming years. As we look forward to monitoring election legislation in 2017, an “off year” in most states, we must remember that whatever passes then will affect voters in 2018, 2020, and beyond.