Threats and Opportunities Update

By Erin Ferns Lee March 20, 2017
Citizens gathered at the nation’s capitol for the Women’s March on January 21. (Mark Dixon/Creative Commons)

In this era of divisive politics and polarizing views on what makes America “great,” it’s no surprise that voting rights would be part of the increasingly contentious debate.

Since the 2016 election, the Trump administration’s voter fraud and anti-immigrant rhetoric has reached a fever pitch. Meanwhile, more and more citizens are becoming politically engaged and taking to the streets to protest destructive, undemocratic policies. And these opposing narratives—one that distrusts the masses, and one that projects the voice of the masses—may have an influence on the laws that govern future elections in America.

In 2017, Project Vote has observed that states have introduced significantly more affirmative voting legislation than restrictive legislation. But, the battle to pass this wealth of pro-voting measures is clearly uphill as the debate still centers around unproven allegations of “voter fraud.”

Although Trump’s federal voter fraud probe appears to be on off to a slow start, state lawmakers have taken it upon themselves to address the alleged problem by launching investigations of their own or proposing new laws. Such investigations are nothing new. The difference now, however, is that politicians openly acknowledge that voter fraud is not a widespread issue, even as they attempt to pass restrictive proposals like proof-of-citizenship. And they are stopping pro-voting reforms like automatic voter registration and same-day registration, policies that modernize our systems and increase voter turnout.

Given the increasing acknowledgment of the rarity of voter fraud, lawmakers have now grasped onto altered justifications for undermining voting rights, like “inspiring” or “re-establishing” confidence in voters. Affirming language or not, the result is still the same: blocking access to the voting booth.

Project Vote has tracked the following election and voting bills. Visit Project Vote’s bill tracking tool to monitor these policies and more.

Opportunities in Voting Rights

 

An incredible 32 states have proposed to take the onus of registering to vote (and maintaining that registration) off of the voter and put it onto the government where it belongs. Given the current voting rights climate, however, most of these bills do not appear to have a lot of strength behind them, despite recent bipartisan gains on the issue.

The state that currently gives the most promise is Nevada with its Automatic Voter Registration Initiative (IP1). The initiative passed the Legislature on a party-line vote. But it’s unclear whether Republican Governor Brian Sandoval would support the measure, or whether he would reject it as he did with a bill to shorten the registration deadline in 2013. Even if Sandoval vetoes the initiative, voters will ultimately decide on the issue on the 2018 ballot.

After enjoying a period of near-universal support last year, AVR is currently struggling in other states where, suddenly, some elected and government officials are acting like registering to vote is solely a personal responsibility, or that governments enfranchising citizens is somehow a strain on voter list maintenance.

In New Mexico, AVR bill HB 28 moved forward, but only after lawmakers stripped the “automatic” part. The original bill failed when two Democrats backed state Republicans on the issue, including Rep. Debbie Rodella, who expressed that people should “choose for themselves whether they want to participate in the process or not.” (The proposed law would have allowed for people to decline to participate easily.)

Nebraska’s LB 290 also received pushback from election and DMV officials last week. They said they were concerned that AVR would “flood” the voter rolls with already-registered people and those who are ineligible. The Nebraska AVR policy, however, is designed to clean up the voter rolls by ensuring addresses, and any other information is up-to-date. Plus, LB 290 proposes to transmit eligibility information so that only qualified individuals would be registered to vote. The committee did not take action on the bill.

At least 21 states and the U.S. Congress are considering new laws to allow people to register and vote on the same day–either during the early voting period or on Election Day itself–or expand existing laws. Same day registration is popular, and with good reason: these policies have been around for decades, and are known to boost voter turnout by up to 10 percentage points. In 2016, the states with the highest-ranking turnout were all SDR states, according to a Nonprofit Vote report issued last week. So far, however, the opportunity to pass new SDR policies appears slim.

Maryland and Utah—states that already have experience with SDR policies—had the most promising bills pending in the legislatures.

Maryland is already a leader in voter modernization, offering SDR during the early voting period. House Bill 345 provides for a constitutional amendment ballot initiative that would extend the opportunity to Election Day, expanding the probability of higher turnout. Project Vote urges the swift passage of this bill.

A Utah bill would have extended a successful test program to the entire state, not just select counties. The bill’s sponsor reviewed data collected over the past three years that shows SDR “does not cause problems with voting and helps more voters cast a ballot, even if they forgot to register ahead of time.” Unfortunately, the bill failed. No real reason was offered, except that opponents argued that the decision to provide SDR should be the county’s, not the state‘s decision.

Twice in the five presidential elections of the 21st century, the Electoral College awarded the presidency to the candidate who lost the popular vote. And studies have shown that the Electoral College disproportionately gives more weight to votes cast by white citizens, based on the distribution of voters of different ethnicities across the states. A proposed solution that several states are offering (and several more are already a part of) is the National Popular Vote Interstate Compact (NPVIC).

NPVIC is an agreement among states to award their Electoral College votes to the winner of the national popular vote. Currently, ten states and the District of Columbia are participating in the NPVIC. Now, following the 2016 presidential election, lawmakers in 17 states have proposed legislation to join the NPVIC. Project Vote is working to help move legislation forward in Oregon as part of a larger effort to expand access to democracy.

Seventeen states are considering bills to address the patchwork of laws that disenfranchise millions of citizens after serving time for felony convictions.

Fair and consistent re-enfranchisement laws can contribute to the rehabilitation process and reduce the impact of disenfranchisement—a measure that is historically rooted in racism—on underrepresented communities today.

Florida—where 10 percent of the population loses the right to vote due to past felony convictions—is considering several constitutional amendments to restore voting rights. Currently, the state has one of the strictest disenfranchisement policies, requiring people to apply for clemency through the governor, a process that can take years.

A petition to restore voting rights was also under review by the state Supreme Court.

Thirteen states have proposed dozens of bills to lower the voter registration age to capture new voters when they reach voting age.

Preregistration bills have gained traction in Washington and Oregon.

In Oregon, SB 802 would lower the preregistration age to 16 (currently, 17-year-olds can preregister, and then vote upon turning 18.) The bill received support from Project Vote, as well as Oregon teens, one of whom testified that it would help get younger people to start thinking about the issues that matter to them.

Currently, 15 states and D.C. allow citizens younger than 18 to preregister to vote. Just last week, California implemented its pre-registration law, passed in 2014. Now, 16- and 17-year-olds may preregister to vote using the state’s online voter registration form. Like all preregistration policies, applicants may not cast a ballot until they reach voting age.

Threats to Voting Rights

Twenty-two states are considering new or updated laws to require strict forms of photo ID to vote in person, and, in some cases, by mail.

Historically, proponents of voter ID relied on the unverified specter of voter fraud to support these suppressive new laws. Opponents asserted that voter ID laws kept certain voters from participating in elections. No one seemed to agree that either was true. Now that the voter fraud narrative further wavers, and mounting evidence of real voters losing their right to vote come forward, the conversation in support of voter ID is beginning to take another shape (but not another policy direction).

In Iowa, House File 516 moved forward after 12 hours of debate over two days, including hours of research showing that the bill was “riddled with implicit bias.” The bill is now in the Senate, where a Republican majority is also expected to pass the legislation.

Arkansas has a recent and complicated history with voter ID. A law passed the legislature in 2013 but was vetoed by then-Governor Mike Beebe. The legislature overrode the veto, but then the state Supreme Court struck down the law as unconstitutional.

Last week, the Arkansas Senate approved two new voter ID bills. HB 1047, a bill that requires photo ID to vote in person or by absentee ballot, is going back to the House for concurrence in Senate amendments. The Senate also approved House Joint Resolution 1016 last week; it will be on the November 2018 ballot.

West Virginia is considering a bill that not only would require restrictive ID, but also undo the state’s new AVR law.

Texas already has a voter ID law that was found to have a discriminatory impact, but lawmakers appear determined to “fix” the law before the legal challenges settle with SB 5. The [revised?] bill expands the list of accepted ID, but controversially raises the criminal penalties for people who falsely claim they don’t have the necessary ID. Opponents argue that the proposed penalties are excessively restrictive and potentially intimidating and that the expanded list of ID doesn’t go far enough to include student ID or ID that has a former address. Others say lawmakers should wait for more guidance from the courts before changing the rules.

A disturbing seven states proposed bills to require voter applicants to submit documentary proof of citizenship to register to vote.

These xenophobic policies, which are purported to prevent noncitizen voting, have repeatedly been challenged in the courts for their negative impact on the franchise. Such laws block legitimate voters who do not have access to citizenship documents. (People who are more likely to be affected are married people who took the name of their spouses, students living away from home, or seniors.) These policies also quash voter registration drives, which are responsible for reaching large numbers of potential voters in public spaces, like churches and markets, where individuals are unlikely to carry proof of citizenship.

And yet, there is vlittle evidence of noncitizen voting to justify the disenfranchising impact that these laws have on legitimate voters.

So far, only one bill has gained significant traction. Virginia’s HB 1598 passed the House but failed in the Senate committee.

Other bills have been designed to bolster existing laws (Kansas and Arizona), or give support for a federal mandate (Florida and Rhode Island). All would undermine the National Voter Registration Act, which passed more than 20 years ago to help bring more citizens into the democratic process.

And it’s not just politicians who are pushing the issue. Conservative activists in Oregon are reportedly gathering signatures to get voters to approve proof-of-citizenship.

Voter registration restrictions do not always get as much attention as egregious proof-of-citizenship requirements, but their impact can be just as harsh. Some policies affect citizens in ways they may not realize and have the potential to disenfranchise—purposely or not—eligible citizens. In 2017, a few states have proposed problematic “no match, no vote” procedures, residency requirements, and restrictions on community-based voter registration drives.

“No match, no vote” requirements reject voter applicants and enrolled voters if the information provided doesn’t exactly match information on government databases. While this seems innocuous, it does not account for the potential for errors and typos that would reject a voter registration at no fault of the applicant. Project Vote recently settled a lawsuit over this flawed procedure that wrongfully disenfranchised tens of thousands of Georgia voters over improper “matches.”

Unfortunately, legislators in Georgia and Virginia are pushing this questionable practice anyway. Georgia’s HB 268 passed the House and is pending in the Senate. Virginia’s HB 1581 is on Governor McAuliffe’s desk. Project Vote urges the rejection and veto of these flawed bills.

In supposed attempts to calm (unfounded) fears of improper votes from people who are from other states, including students, New Hampshire and Maine are debating residency requirements. These policies have been criticized for their potential to intimidate and disenfranchise legitimate voters by singling certain people out to show additional proof of residency, or even sending law enforcement officers to people’s homes to verify that they lived there when they voted.

Finally, at least four states have proposed bills that would impose unnecessary rules and regulations for hosting voter registration drives. Currently, Iowa is considering numerous bills that would make it harder to help people register to vote in the state.

Project Vote is monitoring five states with potentially problematic voter list maintenance bills. The most troubling proposal comes from Indiana.

Keeping our voter lists clean is an important part of election administration, especially now that officials seem to conflate bloated voter registration rolls with illegal voting. But such procedures must be done with care so that legitimate voters are not put at risk of disenfranchisement.

Indiana’s SB 442 proposes to use the error-prone Interstate Crosscheck program that compares the Indiana voter file to other lists using only people’s first name, last name, and date of birth. Statistical research, however, demonstrates that many people share these three data points, leading to false matches and wrongful purging of eligible citizens from the voter rolls. Project Vote spoke out against this bill in February.

Conclusion: Now that the political climate has changed—and voting protections have been weakened—more states are feeling emboldened to investigate “voter fraud” and pass laws that make it harder to vote. Conversely, lawmakers in some states are proposing legislation to make voting more accessible, especially in an era of increased political engagement. These pro-voting policies, however, are facing uphill battles in the legislatures. When just over half of eligible citizens voted in 2016, states can do better to improve our “confidence” in elections by making voting accessible to all citizens.

 

2 Responses to “Threats and Opportunities Update”

  1. Jacqueline Nichol, Attorney at Law? says:

    How can I help challenge Interstate Crosscheck before it affects 2018 Elections

    1. Erin Ferns Lee says:

      Thanks for your question. If you are in a state that is considering a Crosscheck bill, contact your representatives to let them know your stance. You can also keep following this space and help share information on Crosscheck and other, more beneficial list maintenance programs, like ERIC.

Comments are closed.