Eighteen states — 17 with legislatures under GOP control — have enacted new restrictions on voting with many of the laws tightening rules around mail ballots, which were used widely during the 2020 election, according to New York University’s Brennan Center for Justice.
“Certainly the efforts to make it harder to vote have been turbocharged this year. We are seeing truly unprecedented levels of new laws that make it harder to vote,” said Eliza Sweren-Becker, counsel for the democracy program at the Brennan Center. “It’s not too late for Congress to pass legislation.”
Biden was a member of the Senate when it unanimously extended the Voting Rights Act in 2006, but 15 years later the issue has transformed from a broad bipartisan consensus to one of the most contentious and politically polarized debates in Congress.
State laws are being passed amid federal inaction despite Biden and administration officials repeatedly asserting their commitment to voting rights as a priority. Republican governors and state legislators have led the moves toward greater restrictions.
Texas Gov. Greg Abbott this week signed a sweeping new law that restricts local officials from sending voters unsolicited mail-in ballot applications. The new law also bans 24-hour voting and drive-thru voting, two measures used last year by populous Harris County to help with social distancing during the pandemic.
Abbott, a two-term Republican, touted the legislation as “making it harder to cheat,” but election experts have repeatedly refuted the notion of widespread voter fraud and say these new laws indulge already debunked conspiracy theories about the 2020 election.
“Almost all of these state laws are based on an alternate reality that doesn’t exist. It is objectively true that the 2020 election was the most secure and transparent election we ever held,” said David Becker, founder and executive director of the Center for Election Innovation and Research.
“The Texas law might be the worst among the laws that have passed recently,” said Becker, who was previously a senior trial attorney in the Justice Department’s civil rights division under former Presidents Bill Clinton and George W. Bush.
Becker’s biggest concern with the Texas law is a provision that empowers partisan poll watchers and prevents poll workers from restricting their movement at voting locations, a measure voting rights advocates warn could lead to voter intimidation.
The surge of state restrictions has put pressure on Biden and Congress to act.
“The president has given several speeches on voting rights. He’s talked about how this is a cause of his presidency,” White House press secretary Jen Psaki said on Tuesday in response to a question about frustration among voting rights advocates that the president hasn’t done enough to advance the cause.
Psaki pointed to the Department of Justice doubling the staff dedicated to voting rights enforcement as a way the administration was addressing the issue beyond the bully pulpit.
The Texas law has already spurred multiple lawsuits seeking to overturn it, but voting rights advocates say U.S. Supreme Court decisions may make it difficult to prevail in court against state restrictions without new federal legislation.
Senate Rules Committee Chairwoman Amy Klobuchar, D-Minn., called the Texas law and similar proposals “a coordinated effort to limit the freedom to vote, and an effort that demands a federal response.”
Asked about a potential congressional response, Abbott’s spokeswoman Renae Eze said in an email that Texas’ new rules “will solidify trust and confidence in the outcome of our elections.”
The Senate is scheduled to consider this month the John Lewis Voting Rights Advancement Act, a bill which seeks to give the Justice Department and civil rights organizations more tools to challenge state restrictions. The bill would apply retroactively to laws passed since January of this year.
Named for the civil rights icon and Georgia congressman who sponsored an earlier version, the legislation responds to a 2013 U.S. Supreme Court decision that struck down a requirement that states with histories of voter discrimination obtain preclearance from the Justice Department before enacting new election laws.
The legislation sets a new formula for preclearance, an option given to Congress in the 2013 ruling.
The bill, which passed the House last month on a party-line vote, also responds to this year’s Brnovich v. Democratic National Committee decision in which the U.S. Supreme Court upheld two Arizona restrictions on the grounds they were not enacted with discriminatory intent. The bill would amend the Voting Rights Act to explicitly prohibit discriminatory results in addition to intent.
Seen as a more narrow and moderate alternative to Democrats’ more sweeping voting rights proposals, the bill would have to overcome the hurdle in the evenly divided Senate of 60 votes to clear the filibuster rule, which would require Republican votes.
Sen. Roy Blunt, R-Mo., a former county and state election official, said in a statement that he had supported extending the Voting Rights Act in the past, but he opposes the current bill because “the Voting Rights Act was never a federal takeover of how local governments would conduct their elections. It was a guarantee that the federal protections would be upheld.”
Some Democrats say the most important step Biden could take on behalf of voting rights would be to publicly call for the elimination of the filibuster.
Biden, who spent 36 years in the Senate, has repeatedly opposed elimination of the long-standing procedural rule.
Progressive activists say Biden’s reluctance to attack the filibuster has been counterproductive.
“Supporting legislation without supporting the strategy to get it passed is not leadership. It’s wishful thinking,” said Sean Eldridge, the founder and president of the progressive group Stand Up America.
G. William Hoagland, senior vice president at the Bipartisan Policy Center, said that while the full elimination of the filibuster is unlikely, Democrats could pursue an exception for constitutional issues, such as voting rights. “There are modifications to the rule. We obviously did it as it relates to the consideration of judges and executive appointments.”
More state-level restrictions are likely to be considered by state policymakers in the lead-up to the 2022 midterm elections, which will decide control of Congress.
Missouri Republican Secretary of State Jay Ashcroft has unveiled a proposal for next year’s legislative session to restrict local election officials from helping absentee voters rectify mistakes on the envelope, such as a missing signature.
“If the voter forgets to sign it, why is it OK for an election authority to call them and say you didn’t sign this, do you want to come and sign it?” Missouri Deputy Secretary of State Trish Vincent told a legislative panel last month.
Boone County Clerk Brianna Lennon, a Democrat, said envelope mistakes are common, especially among older voters, because the state’s absentee instructions aren’t user-friendly, which is why local officials take steps to help voters correct mistakes before Election Day.