Legislative Threats and Opportunities Update

By Marissa Liebling September 16, 2016
The Supreme Court of the United States
The Supreme Court of the United States

While legislative activity has slowed over the summer, voting rights litigation is heating up and creating quite the state of flux. With the election right around the corner, we’re focusing on some key issue areas. This update highlights current legal challenges, significant changes to election laws since the last presidential election, and, of course, pending or recent legislation.

sdr-map-sept-2016

Same day registration is an important safety net that allows voters to register or update their registration at the same time they vote. Several SDR bills are pending, like NJ A2438 and NY AB 6038, but seem unlikely to move soon.

Six states adopted SDR before 2000.[1] Since 2000, eleven states and the District of Columbia adopted the reform, including seven new SDR states between 2010 and 2015.[2] Plus, a pilot program in some Utah counties runs through this year. Connecticut, Colorado, Illinois, and Utah will offer SDR for the first time in a presidential election.

So will Illinois. Where Illinois offers SDR on Election Day, however, is the subject of a legal dispute. Counties with larger populations were required to provide precinct-wide SDR after SDR was piloted in standalone, non-polling place locations in 2014. Voters in the larger counties often had to wait in line for SDR at these limited sites, some for many hours. The smaller counties were granted the option of site-based SDR. A challenge has been filed to block SDR from being offered precinct-wide.

A case is also pending in Minnesota, where petitioners are challenging SDR by invoking statutory procedure for alleging election errors, omissions, or wrongful acts. The Secretary of State and Amici Curiae have asked the court to dismiss.

Thanks to the courts, North Carolinians will be able to register or update their voter registration during early voting. In July, a federal appeals court struck down several recent law changes, including a provision that removed SDR during early voting. The case was appealed and a divided Supreme Court refused to delay the decision. The fate of Ohio’s SDR was also determined by the courts. A federal appeals court recently reversed a district court judge’s order to restore SDR during an early voting period known as “Golden Week” and the Supreme Court won’t be stepping in to reinstate SDR.

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Most states allow voters to cast a ballot before Election Day through early voting or no-excuse absentee voting. In fact, 27 states and the District of Columbia give voters the option not only of going to the polls on Election Day, but also the options to vote early in person, or to vote an absentee ballot without requiring the voters to have an excuse for not voting on Election Day. Thirty-seven states give voters at least one of these options. Importantly, allowing voting in advance can improve election administration by relieving some of the burden on Election Day.

A federal bill that would require early or absentee voting options for all federal elections has been pending for over a year. Although there is no related state legislation currently moving, perhaps the 13 states without any pre-election voting options will consider this issue. It just makes sense for all voters, given our busy modern lives. And it would allow voters with disabilities (now one-sixth of the electorate) or health issues to avoid having to provide the highly personal information that it sometimes requires.

Three states—Washington, Oregon, and Colorado—mail ballots to every registered voter. Colorado’s system is a hybrid model that allows voters to return their mailed ballot or to vote (or use SDR) in person at a vote center. Now California is considering a similar vote by mail and vote center hybrid. The bill currently sits on the governor’s desk.

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This year, Missouri lawmakers put a voter ID amendment on the November ballot. Just this week, lawmakers overrode a veto on the voter ID bill that will go into effect if Missourians approve the ballot amendment. West Virginia enacted a non-strict, non-photo ID law in conjunction with automatic voter registration. Other states passed ID laws that expanded the types of acceptable ID, including Florida, Kentucky, and Wisconsin.

By far the greatest threat is strict photo ID, because the types of acceptable ID are highly limited. Further, in strict photo ID states, voters without identification generally have to cast a provisional ballot and show an ID within so many days after Election Day in order for their ballots to count. First passed in 2008, strict photo ID requirements were in place in Georgia, Indiana, Kansas, and Tennessee for the last presidential election. This November, strict photo ID will be in place for the first time in a presidential election in at least four more states.[3]

As with SDR and early voting, there has been a flurry of voter ID-related litigation. In 2015, with litigation pending, North Carolina adopted non-strict photo ID requirements, providing alternative procedures for those unable to obtain photo ID due to a reasonable impediment. Recently, a federal appeals court found the struck down the ID law as unconstitutional, finding that the law was passed to intentionally discriminate against black voters. As with same day registration and early voting, the Supreme Court is not stepping in.

Wisconsin’s strict photo ID didn’t go into effect until after the last presidential election due to the courts stepping in. The legal battle has continued. In July, an appeals court overturned a lower federal court decision that would have mandated strong alternative procedures for those with a reasonable impediment to obtaining ID. Instead, the state offered to mail identification to anyone who tried unsuccessfully to obtain a voter ID, and the appellate court accepted this solution.

A federal appeals court in Texas found the state’s strict photo ID requirements unconstitutional. The state has appealed to the Supreme Court. In the meantime, the state has developed alternative procedures for those who have trouble obtaining compliant photo ID, although Texas now stands accused of deliberately misleading voters on this issue.

Two other states have enacted strict photo ID requirements since 2012 but cannot enforce them. In 2013, Arkansas’s law was passed and immediately struck down by the courts. Pennsylvania also passed a strict photo ID law in 2012 that was struck down in 2014. Given the attention on Pennsylvania and bald assertions about voter fraud in the state, it is notable that the state admitted to being unaware of any incidents of in-person voter fraud during the case.

felon-restoration-sept-2016

In every state except Maine and Vermont, people are deprived the right to vote while serving a sentence of imprisonment for a felony conviction. In many states, people also cannot vote while on parole or probation, but voting rights are restored automatically upon sentence completion. In a handful of states, those convicted of felonies—no matter how minor or long ago—are permanently deprived voting rights unless they obtain a pardon or similar reprieve, usually from the state’s governor or a court.

Earlier this year, Maryland lawmakers overrode a veto and restored voting rights to those on parole and probation so that those living and working in their communities can participate in the political process. In July, Delaware passed a law eliminating the requirement that legal fees and fines be paid before rights are restored. It also codified a decision removing a five-year waiting period before rights were restored for most. And the governor of California is currently considering a bill codifying the right to vote for those with certain types of post-release sentences.

Unsurprisingly, there has also been rights restoration litigation. Virginia is a particularly onerous state, as only the governor may restore voting rights to anyone with a prior felony. Earlier this year, the governor granted a blanket order to restore voting rights to over 200,000. The Virginia Supreme Court reversed, finding the blanket act exceeded his authority. In August, the governor individually restored voting rights to 13,000 Virginians. This time, the state Supreme Court rejected the latest challenge to the governor’s actions. The legal tug of war has spurred the introduction of a bill to restore voting rights, but the governor warned the new legislation is actually a step backwards, given its limitations.

avr-map-sept-2016

Automatic registration has quickly attracted interest, given its potential to increase the efficiency of government agency voter registration and overall voter registration rates. Oregon passed AVR last year, followed by California, West Virginia, and Vermont this year. Connecticut adopted AVR without legislation and implemented its system in August.

Two other states passed AVR bills out of their legislatures this year. Unfortunately, the bills in Illinois and New Jersey were vetoed last month. Voters in Alaska will get a chance to vote on AVR through a ballot initiative. Additionally, an AVR ballot failed in Colorado, but one is currently collecting signatures in Nevada.

Conclusion

One thing is clear: there have been significant changes to voting laws and procedures since November 2012. There have even been numerous changes in just the last month. It is undeniable that many of these changes—like voter ID—constitute threats to the ability of eligible Americans to cast a ballot in the 2016 election. But it’s important to remember that there have also been many moves, through both litigation and legislation, to expand voter access and enhance voting procedures. Let us hope we increasingly trend towards opportunities to improve voting so all Americans have the chance to make their voices heard—in this election and all those to come.

[1] ME, MN, WI, ID, WY, NH

[2] IA, OH (repealed), NC, and MT adopted between 2000 and 2010; DC, CA, CT, CO, MD (early voting only), HI, IL, VT adopted after 2010. CA, HA, and VT have not yet implemented.

[3] WI, MS, VA, ND (except that ND accepts one form of non-photo ID: long-term care identification certificate).