Legislative Threats and Opportunities Update

By Erin Ferns Lee January 17, 2017
Early voters line up in Indiana on November 1, 2016. (ACPL/Creative Commons)

We’re only three weeks into the new year and already the ghosts of voting rights past, present, and future are facing us. Yesterday, we celebrated civil rights hero Dr. Martin Luther King, Jr., who fought hard to help bring the right to vote to all Americans. Last week, we saw the first confirmation hearings of Trump’s troubling nominee for attorney general whose history suggests he will not fulfill the post’s responsibility of protecting those hard-won rights. And on Friday, an entire administration hostile to voting rights will be entering the White House.

The comments and actions of Trump, his cabinet, and many newly elected Republican officials after the 2016 election show a forceful and frightening disdain for voter access. False claims of massive voter fraud have been used to explain Trump’s loss of the popular vote. Meanwhile, state lawmakers have used such claims to promote anti-voter policies, like voter ID, proof-of-citizenship at registration, and the repeal of same day registration.

Even early voting, once an innocuous and widely popular policy recommended by President Obama’s bipartisan panel on election administration, has recently been attacked by Trump under allusions of fraud.

And attorney general nominee, Senator Jeff Sessions has been criticized by the civil and voting rights communities for his disregard for federal voting protections and support for new voting restrictions.

With this new wave of hostility toward the democratic process, we can expect to see fewer viable legislative efforts to modernize election administration, and more egregious efforts to block the vote.

Below, we outline some of the election legislation that has been filed or introduced in the state legislatures so far in 2017. Visit Project Vote’s bill tracking tool to monitor these issues and more.

Opportunities in Voting Rights

It is only January and already, nearly a dozen states have proposed automatic voter registration (AVR) bills. This newer policy trend—which takes the onus of registering citizens to vote off of voters and puts it onto government—has gained momentum in the last couple of years. However, it’s unclear how successful it will be getting to governor’s desks in the current climate.

New York’s Gov. Cuomo said he would propose automatic voter registration, as well as early voting, to “modernize and open up our election system, making it easier for more citizens to participate in the process.”

While it is true that the state falls behind most in modern election reforms, the chances of the bills succeeding may be slim: “Cuomo also proposed early voting and automatic voter registration in his state budget last year, but it never happened,” reported the New York Daily News.

Arkansas, Florida, Georgia, and New Jersey (which passed AVR bills twice, only to have them vetoed by Gov. Christie), have also made some headlines for new AVR proposals. So far, the prospects do not seem promising for these states.

 
Nine states proposed to join 37 others in offering early voting before Election Day.

Lawmakers in Alabama and Connecticut have introduced early voting to help address the long lines voters faced in November. In Connecticut, where voters rejected an early voting law in 2014, Gov. Malloy reaffirmed his support for an early voting measure.

“States across the nation offer some form of early voting and Connecticut should join their ranks,” Malloy spokesperson Kelly Donnelly told the Connecticut Post. “We must continue to work to modernize our election rules, remove barriers to the ballot box, and increase voter participation.”

Kentucky Secretary of State Alison Lundergan Grimes has also proposed early voting, with the vocal support of clerks in Boyd and Greenup counties, according to the Daily Independent. And early voting has strong support from Virginia Gov. McAuliffe.

Disenfranchisement laws, which are rooted in our country’s racist past, block millions of citizens from voting. Communities of color, in particular, are disproportionately affected by these laws, and are also overrepresented in the criminal justice system.

Restoration policies—ranging from the ideal automatic restoration of civil rights upon release to simple notification of rights from election officials—have gained some momentum over the years, but rarely make it out of the legislative process. This year, however, appears to bring a glimmer of hope for communities affected by disenfranchisement laws.

Florida is known for having “one of the hardest [disenfranchisement] laws in the nation.” Florida law denies voting rights to more than one million people, but two efforts are underway to amend the state constitution to restore civil rights to people with past felony convictions. One effort is in the form of a proposed constitutional ballot amendment, and the other is pending in the state legislature.

Nebraska lawmakers propose a law that would take away a two-year waiting period for people to restore voting rights after release from incarceration.

In Wyoming, lawmakers propose to automatically restore voting rights to people convicted of nonviolent crimes who have served all terms of their sentences. Currently, Wyoming residents have to endure a confusing application process to regain the right to vote.

Threats to Voting Rights

 

Voter ID is still one of the greatest threats to our democratic process, not just for excluding citizens who don’t have valid ID, but also for the widespread confusion such laws create about what kinds of ID may be required.

Iowa Secretary of State Paul Pate has added to this confusion by pushing for a voter ID law while simultaneously claiming that the state has outstanding voter registration and participation rates; Pate insists that Iowa’s elections are free of voter fraud, which is the crime that voter ID laws are designed to prevent. Student groups criticized Pate’s plan for raising unnecessary barriers to voting, particularly for under-represented young people. (His plan would not accept college ID as voter ID.) Pate’s plan would also stretch the state’s already-tight budget, costing an estimated $1 million to fund.

In an unusual development, Pate has come out and said that his voter ID bill is not actually about voter fraud at all, but rather an effort to streamline the election administration system. It isn’t clear how, or why, a state-issued voter ID plan would make this possible.

While we anticipate more creative efforts to pass voter ID, the old, standard voter ID law—designed to combat the rare crime of voter impersonation fraud—is still very much on the table.

After the November election, Michigan lawmakers tried to rush a strict voter ID bill through during the lame duck session. The Senate ultimately shelved the bill, but it still has a chance of coming up again in 2017.

Arkansas lawmakers are also trying to make voter ID stick. The state already passed a voter ID law (by overriding the governor’s veto) in 2013, but the law was struck down as unconstitutional in 2014. A new bill would amend the state constitution to include voter ID.

Fears of noncitizens voting—perpetuated strongly by Donald Trump and his advisors—have been used to support unnecessary and bureaucratic hurdles to voter registration. Despite their discriminatory nature, states continue to propose going above and beyond current safeguards to require documentary proof-of-citizenship to register and vote in federal elections.

This legislative session, proof-of-citizenship bills are pending in Virginia, Texas, and possibly Oregon. (Late last year, Oregon Republicans reportedly filed a proof-of-citizenship bill based on “rumors” that noncitizens were voting in a majority Latino district. We have not seen this bill, but will monitor it as soon as it is available.)

A Virginia lawmaker is citing unsubstantiated claims of noncitizen voting to support his bill to require Virginians to prove citizenship before voting in local and state elections. (The lawmaker said “dumb” federal court rulings keep the state from applying such rules to national elections.)

In 49 of 50 states, a person who is not registered cannot vote. Therefore, voter registration is a likely target to block access to democracy. While partisan lawmakers can suppress voter registration with proof-of-citizenship requirements or egregious voter purging efforts, they may also do so through seemingly innocuous administrative changes.

To date, at least three states have filed bills that would negatively affect access to voter registration. In New Jersey, lawmakers propose to shorten the voter registration period by more than a week. In Texas, lawmakers propose a vague, confusing, and burdensome bill that would require certain applicants to confirm proof-of-residence to vote. And in Virginia, a new bill threatens to inhibit voter registration drives, which are known to boost registration rates among historically underrepresented citizens.

Last December, newly elected New Hampshire Governor Chris Sununu expressed support for repealing the state’s same-day registration law. The law is known to boost voter turnout in states that allow it. So far, no states have filed related bills.

Conclusion

The incoming Trump Administration can be expected to aggressively support anti-voting measures, like voter ID and proof of citizenship, under the guise of preventing “voter fraud.” With the already weakened provisions of the Voting Rights Act, and reduced fears of reprisal from the Attorney General or the U.S. Supreme Court, we fully expect to see more and more states pushing laws that would disenfranchise vulnerable populations that are already underrepresented in the American electorate.