Legislative Threats and Opportunities Update

By Erin Ferns Lee July 15, 2016
President Johnson signs the Voting Rights Act, August 6, 1965. This will be the first election cycle in over 50 years without the anti-discrimination protections of the VRA.
President Johnson signs the Voting Rights Act, August 6, 1965. This will be the first election cycle in over 50 years without the anti-discrimination protections of the VRA.

The 2016 election cycle is unprecedented. From the raucous presidential campaigns, to the loss of voting protections that were once guaranteed by the Voting Rights Act, it is difficult to assess how today’s voting climate will affect turnout in November.

But among the hundreds of voting bills that we have monitored in 2016, the vast majority of them followed the trend of modernizing the voter registration process, be it automatic voter registration or online voter registration. Both are policies with the potential to make voting more accessible.

This glimmer of hope almost overshadows the constant threat from lawmakers to pass laws, such as voter ID or proof-of-citizenship requirements, which make it harder for all citizens to vote. These threats are still pervasive in the legislatures, in the courts, and, most certainly, in November’s election.

The biggest threat to voting rights, however, is the deafening silence from members of Congress who refuse to update the Voting Rights Act, which helps protect against the discriminatory and prohibitive voting laws that keep marginalized citizens from making their voices heard.

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

Threats to Voting Rights

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This presidential election, voter ID will be required for the first time in 17 states, not including the two states that passed new, related laws this past spring.

Missouri Republicans’ longtime effort to bring its unconstitutional voter ID law back may finally come to an end. The state Supreme Court has previously ruled that a voter photo ID law unconstitutionally burdened the right to vote. However, the state constitution would be amended to allow for voter photo ID if voters in November approve a legislatively referred amendment, HJR 53. If approved, the path is cleared to enact voter photo ID, including efforts promised by lawmakers to override the Governor’s veto of photo ID bill HB 1631. Implementation of a new voter ID law will cost an estimated $2 million.

West Virginia’s omnibus HB 4013 would require voters to show government-issued ID, including items like student or military ID, or utility bill or bank statement, starting in 2018.

Voter ID was proposed in 12 states in 2016, including New Mexico, where Project Vote submitted testimony on the ultimately defeated bill. Bills are still pending in Massachusetts and New Jersey.

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Xenophobia appears to be on the rise, not only on a national level, but also on a global one. Stateside, this election cycle has been plagued with anti-immigrant sentiments that may have influenced the ongoing efforts to shrink access to voter registration.

Proof-of-Citizenship policy proposals exceed federal requirements that require Americans to affirm citizenship under penalty of perjury. Related bills were introduced in four states and U.S. Congress. Bills are still pending in Massachusetts and California.

Existing laws in three states—Alabama, Georgia, and Kansas—are in a constant legal battle as we head into the November election. Last month, a federal judge rejected a request by voting rights groups to block the states from rejecting federal voter registration forms, which do not require excessive, documentary proof-of-citizenship to register to vote. Voting rights groups plan to appeal the decision.

Opportunities in Voting Rights

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Online voter registration (OVR) is a policy that is enjoyed by citizens in most states, and it continues to be the most widely adopted voting law in the country. Just this year, at least five states passed new OVR laws, including Idaho, Ohio, Rhode Island, Tennessee, and Wisconsin. Unfortunately, Wisconsin’s bill includes a problematic provision that suppresses voter registration drives, and Ohio’s new law was amended to ensure that Ohioans will not benefit from OVR before the November elections.

As more states become accustomed to this relatively new voting policy, the opportunity arises to make OVR even more inclusive and accessible to historically underrepresented citizens who may not have a driver’s license (the source of the electronic signature required to register online), including low-income individuals, young people, and seniors. Pennsylvania, which passed OVR in 2015, serves as an example of how to improve an existing OVR law. As of this spring, the commonwealth saves citizens the extra step of mailing a signature card, and alternatively, allows for the upload of an image of their signature online.

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Unlike most developed democracies, the United States uniquely places the burden to register and keep registration up to date on the individual citizen. Automatic voter registration is a wildly popular voting rights proposal that is touted for shifting much of the burden to the government, and making voter registration more accessible.

More than half the states and U.S. Congress have proposed nearly 100 bills that would automatically enroll people who interact with motor vehicles offices to vote. So far this year, automatic registration passed in Vermont and West Virginia, and is pending in Illinois and New Jersey (which awaits a signature or veto). Congressional leaders also recently introducing the Automatic Voter Registration Act of 2016 to streamline registration so eligible Americans are registered to vote when they interact at government agencies, unless they decline registration during the transaction.

Automatic Voter Registration has the potential to increase voter registration and help close the gap in voter registration rates among minority and low-income communities. But it’s vital that any state AVR proposals comply with the National Voter Registration Act (NVRA), which already governs voter registration through DMVs and public assistance agencies. Project Vote’s new report Automatic Voter Registration: Two NVRA-Compliant Models discusses key policy issues and considerations for implementing effective, NVRA-compliant state systems.

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Felony disenfranchisement keeps gaining national attention for its silencing effect on the millions of citizens who are no longer incarcerated. Moreover, this confusing array of laws disproportionately affects the voting power of communities of color. Despite the growing popularity of the issue in the legislatures, bills that would make a strong impact in bringing new voters to the democratic process seem to end up on the cutting room floor.

For example, Minnesota’s omnibus SF 2381 would have restored voting rights to people who are living in their communities, but still under post-release supervision. However, this provision was removed from the bill before it finally passed the legislature. The issue of restoring voting rights was reportedly an “uphill battle” of an issue in the state.

In total, 17 states and U.S. Congress proposed bills that would either restore voting rights to people with past felony convictions or improve the administration of existing laws. With the exception of a successful override of a vetoed Maryland bill that grants voting rights to those living in the community on parole or probation, restoration bills have not seen success in 2016. Bills that clarify existing law or provide privacy to people with past felony convictions who wish to vote, however, did pass in Alabama and Virginia, respectively. Similarly, a bill codifying a court decision restoring voting rights to some immediately after a term of imprisonment is pending in California.

While restoration laws did not gain much traction in the legislatures, elected officials have been known to use executive power to grant voting rights to the formerly disenfranchised. Earlier this year, Virginia Governor McAuliffe restored voting rights to 200,000 Virginians. The order is currently being challenged by state Republicans.

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Three years ago, anti-discrimination measures were removed from the landmark Voting Rights Act of 1965 when the U.S. Supreme Court ruled in Shelby v. Holder. Since then, numerous bills have been introduced to support or enact voting rights protections on the federal level. Unfortunately, a lack of action on the part of Congress appears to bring us closer to the first presidential election in 50 years without the protections once guaranteed by the VRA.

Currently, the Voting Rights Amendment Act of 2015 is pending in Congress, though the bill has not gained traction. Additionally, since Shelby, states have passed resolutions to urge Congress to modernize, update, or restore the VRA. In 2016, Illinois joined the chorus with the passage of HJR 124.

“As we approach the first presidential election in 50 years without the full protections of the Voting Rights Act, we’re seeing the perfect storm of a diversifying electorate and a set of states and localities responding by implementing a broad array of voter discrimination tactics,” the Leadership Conference Education Fund recently reported.

Conclusion

According to a forthcoming report from Project Vote, Representational Bias in the 2014 Electorate, states that bucked the national trend of low turnout rates tended to be states where citizens enjoyed innovative voter access laws like same day registration and early voting. In 2016, automatic voter registration and online voter registration gained the most attention and traction. Organizations, candidates, and political scientists will surely devote further study to the impact of these newer policies on turnout.

But the power of these modernizing voting reforms is limited when not accompanied with voting protections.

The American electorate is diversifying, but it still does not truly represent our increasingly diverse population. And, without the anti-discrimination protections of the VRA, we will keep seeing states propose and defend laws that undermine our democracy, dampen turnout, and exclude citizens from their right to have a say in the policies that govern them.