“Across the country, the GOP’s disappointing midterm results have kicked off hand-wringing about the party’s attitude toward early voting and mail ballots. Florida Gov. Ron DeSantis and former U.N. Ambassador Nikki Haley — both potential 2024 GOP presidential candidates — have said recently that Republicans can’t simply ignore the voting mechanisms Democrats have taken advantage of.
But the about-face is particularly striking in Pennsylvania, where Republicans have adopted an especially uncompromising approach to mail-in voting.
Though nearly every Republican state legislator backed a 2019 law legalizing no-excuse mail voting, GOP officials changed their tune in the 2020 presidential election, when then-President Donald Trump repeatedly and forcefully bashed vote-by-mail.
Their criticism of the method continued from there. Pennsylvania Republicans attacked Democratic Gov. Tom Wolf and the state’s top election official for the way they implemented the 2019 mail voting law. They lambasted court rulings on the procedure, including those that enabled the use of drop boxes and allowed mail ballots to be received up to three days after the 2020 election as long as they were postmarked by Election Day.
The 2022 Pennsylvania GOP’s gubernatorial nominee, Doug Mastriano, pledged during his campaign to eliminate no-excuse mail-in voting and led the movement to overturn the 2020 presidential election in the state. Republican state lawmakers filed a lawsuit that attempted to toss out the very vote-by-mail law they helped pass. Republican Jake Corman, the retiring state Senate President Pro Tempore, said mail voting should be ended.
But the blue wave that hit Pennsylvania in 2022 — in which Republicans lost key races for governor, Senate, House and the state legislature — is forcing the GOP to reassess.
“Republicans focus on Election Day turnout and Democrats started a month ahead of time,” said former Rep. Lou Barletta, who ran unsuccessfully for governor in the GOP primary this year. “If we want to win, if Republicans want to win, they got to get better at” mail voting.”
“Florida State Sen. Jeff Brandes (R–St. Petersburg), who shepherded the bill implementing Amendment 4, tweeted last week that the Legislature never intended it to be used so harshly against those who accidentally voted.”
“”As the author of the bill implementing amend 4 it was our intent that those ineligible would be granted some grace by the state if they registered without intent to commit voter fraud. Some of the individuals did check with SOEs and believed they could register. #Intentmatters””
“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””
“”I believe that the threat to our democracy is so grave that we must find a way to pass these voting rights bills,” Biden said. “Debate them, vote, let the majority prevail. If that majority is blocked, then we have no choice but to change the Senate rules, including getting rid of the filibuster.”
Democrats hold the slimmest possible majority in the Senate, which is currently split 50–50 with Vice President Kamala Harris serving as a tiebreaker. But Senate Majority Leader Chuck Schumer (D–N.Y.) says he’s prepared to bring a pair of election bills to the floor in the coming weeks despite nearly unanimous Republican opposition. The Freedom to Vote Act would limit state-level efforts (led by Republicans) to restrict mail-in voting and absentee balloting, make Election Day a federal holiday, impose new rules for the redistricting process, and require more disclosures from political donors. The second bill, the John Lewis Voting Rights Advancement Act, would reimplement a portion of the 1965 Voting Rights Act that was invalidated by the U.S. Supreme Court in 2013.
On Tuesday, Biden positioned the two bills as a response to Republican efforts (in Georgia and elsewhere) to tighten election laws, and a necessary rejoinder to former President Donald Trump’s craven efforts (in Georgia and elsewhere) to influence the results of the 2020 election.
“That’s not America,” he said. “That’s what it looks like when they suppress the right to vote.”
Those Republican efforts to impose new rules on elections do indeed run the risk of corroding democracy, and Trump’s attempts to overturn the last presidential election were grotesque and condemnable. Even so, it’s not clear that the Democrats’ proposals make sense. If anything, greater federal control over elections might make it more likely that a future president could exercise undue influence over democratic proceedings.
But whether Democrats can pass those bills after suspending the filibuster might be a moot point because it doesn’t seem like there are 50 votes in the Senate for abolishing the filibuster in the first place.”
“White evangelical Protestants now make up 14 percent of Americans, down from 23 percent in 2006, “the most precipitous drop in affiliation” for any religious group, according to a 2020 survey from the Public Religion Research Institute. Even though white evangelicals made up 34 percent of Trump’s voters, according to a Pew Research Center analysis of election data, their support wasn’t sufficient to propel him to reelection. “Without such broad support for Trump among White evangelicals, [Joe] Biden would have beaten him by more than 20 points,” the Pew analysts wrote earlier this year.
Trump’s defeat proves that even massive conservative Christian turnout is no longer enough to win. The strategy white evangelical supporters have coalesced around to supplement it: election laws built on the lie that the other side’s ability to turn out voters must be “fraudulent.””
“As Trump tried to strong-arm state election officials to throw out the ballots of 11,780 Georgians and declare him the winner of the state’s 16 Electoral College votes, the Family Policy Alliance of Georgia sent a fundraising email to its supporters in December: “Election reform is coming to Georgia, and we are all in!”
Cole Muzio, the group’s executive director, acknowledged that this was new territory for his organization. “As you know, this is not one of our ‘core issues’,” he wrote. “However, issues like life, religious freedom, and school choice will never win if the vote is being diluted by radical leftists exploiting the system to cheat.””
“When Democrats stunned even themselves by winning both seats in the January 5 runoff, Georgia Republicans sprang into action, introducing a slate of bills that would, among other things, eliminate drop-box sites, impose more restrictive rules for absentee ballots, and prohibit judges from extending voting hours at precincts experiencing long waits, all under the guise of stopping fraud. Another objective was to defeat Warnock, who is up for reelection in 2022.
The flurry of legislation overtly became about religion and race, pitting white evangelical Republicans against Black church leaders, whose flocks are predominantly Democratic. One provision would have eliminated Sunday voting, a potentially dire blow to get-out-the-vote efforts of Black churches and their “souls to the polls” events that have been at the core of Black voter mobilization for decades.
A national outcry led legislators to nix that provision. But Republican lawmakers ignored the objections of the state’s Black pastors to the bill’s many other restrictive provisions. Black leaders couldn’t even get a meeting with GOP leaders, said Rev. Timothy McDonald III, senior pastor of the First Iconium Baptist Church in Atlanta. “They didn’t pay any of us any mind.”
Less than two months after the bill was introduced, Gov. Brian Kemp signed a 98-page law that criminalizes providing water or food to voters standing in line and empowers state officials to replace local election officials — for example, the Democratic registrar of voters in Fulton County, which includes Atlanta — with appointees from their own party. The impact would be greatest on Black voters. “It is How to Steal an Election 101,” McDonald said.”
“National organizations aligned with the Christian right embraced “election integrity” with fervor. In March, Heritage Action for America, a sister organization of the right-wing policy hub the Heritage Foundation, announced it would pour at least $10 million into lobbying and TV and online ads about the urgent need to “protect the rights of every American to a fair election.” In a video obtained by Mother Jones, a Heritage Action official admitted that the organization drafted the legislation in many states, including Georgia, and helped organize support.
At the same time, evangelical leaders opposed measures that would make it easier to vote. Advocates particularly targeted the For the People Act, which would create nationwide automatic voter registration, restore voting rights of the formerly incarcerated, and expand voting by mail and early voting, while shoring up the security of election infrastructure. The Phyllis Schlafly Eagles — an offshoot of the group once headed by the late conservative figure best known for helping kill the Equal Rights Amendment — claimed (falsely) that the bill “would enshrine Democrat ballot stuffing into federal law forever.” The Family Research Council called it “a federal power grab that cripples states’ ability to run elections and increases the likelihood of voter fraud” (another lie). Other conservative activists contended that the act’s financial disclosure requirements violated First Amendment protections for religious speech.”
“There were plenty of true believers. A June Washington Post/ABC News poll found that while only 30 percent of all respondents favored passing “new laws making it harder for people to vote fraudulently,” 51 percent of white evangelicals supported such legislation. While 62 percent of all Americans expressed support for “new laws making it easier for people to vote,” only 43 percent of white evangelicals did.
By that time, according to the Brennan Center for Justice, 17 states already had enacted 28 new laws suppressing voting rights.”
“The sheer number of bills — both enacted and proposed — really emphasizes what a big priority tightening election laws has become for the GOP since the 2020 election. But it’s also important to remember that a single law can contain numerous far-reaching voting restrictions. And as such, Texas’s Senate Bill 1 is probably the most comprehensive voting-restriction law passed since Florida’s SB 90.
SB 1 requires absentee voters to provide their driver’s license number or the last four digits of their Social Security number on both their absentee-ballot application and absentee-ballot envelope; gives partisan poll watchers “free movement” around polling places; requires the secretary of state to check the voting rolls for noncitizens; and creates more paperwork for people who help other people fill out their ballots. It also bans specific ways of encouraging voting that were used by heavily Democratic counties, such as Harris, in last year’s election — including automatically mailing absentee-ballot applications to voters, drive-through voting and 24-hour early voting. The law does, however, include some provisions supported by Democrats, such as allowing voters to fix, or “cure,” mistakes on their absentee ballots and requiring training for poll watchers.”
“both the severity and quantity of voting restrictions has increased dramatically in 2021. While we don’t know whether these changes will actually affect the outcomes of elections (as many Democrats fear and at least a few Republicans hope), it will undoubtedly be harder to vote in 2022 in many states than it was in 2020.”
“SB 1 has morphed and changed considerably over the last several months, and the final version does not include some of the most aggressive attempts to limit voting rights that were included in previous iterations. The final version stripped a provision that would have shut down many urban polling precincts, and another that would have ended early voting on Sunday mornings, when many Black churches sponsor “souls-to-the-polls” drives.
It also doesn’t include anything resembling the most troubling provision of Georgia’s recently enacted election law, which permits Republican officials to take over election administration in Democratic strongholds such as Atlanta, which has the potential to disenfranchise voters en masse.”
“the bill does include a number of provisions that either make it harder to vote in Texas or tweak the state’s election rules in ways that advantage Republicans.
In 2020, for example, a few polling places in Harris County, a highly Democratic area that includes Houston, remained open for 24 hours. The Republican bill bans this practice while simultaneously expanding early voting in many smaller counties — which tend to be the domain of the GOP.
Similarly, the bill imposes new restrictions on absentee voting, such as a requirement that most voters provide their driver’s license number in order to vote by mail, and a provision that makes it a felony for election officials to send unsolicited absentee ballot applications to voters. In 2020, Republicans were much less likely to vote absentee than Democrats, most likely because then-President Donald Trump repeatedly denounced mail-in ballots.”
“One potentially troubling provision of the GOP bill requires election officials to conduct monthly purges of the state’s voting rolls, ostensibly to identify noncitizens who may have registered to vote. Another provides new legal protections to partisan poll watchers, who are permitted to observe elections and the vote-counting process — but who may also attempt to disrupt the election.”
” No one who cares about voting rights should celebrate SB 1. It erects unnecessary barriers between voters and the franchise, and it subtly changes Texas’s election law in ways that are likely to benefit the party that wrote the bill. But much of SB 1 makes only marginal changes to Texas’s already quite restrictive voting laws.”
“In March, Georgia Republicans passed SB 202, a sweeping new election law that erects obstacles between Georgia voters and their right to cast a ballot. While some are relatively minor or even popular, the most ominous provisions of this new law allow the state election board, which is dominated by Republicans, to seize control of county election boards. Those boards can disqualify voters, move polling precincts, and potentially even refuse to certify an election count.”
“letters from Republican lawmakers are the first step in the legal process Republicans may use to take over elections in Fulton County, the most populous county in the state, which encompasses most of Atlanta. In 2020, nearly 73 percent of Fulton County voters cast a ballot for President Joe Biden. Biden won the county by nearly a quarter-million votes, enough to push him ahead of former President Donald Trump in a state decided by 11,779 votes overall.
Both letters ask the state elections board to begin a “performance review” of the local officials who oversee elections in Fulton County. The senators claim that such a review is justified because “nearly 200 ballots were scanned twice last fall” during the initial vote count in Fulton — a claim that was previously featured on Tucker Carlson’s show.
The reality is much more nuanced, and it suggests that the state’s existing systems worked exactly as they were supposed to work. Although nearly 200 ballots were double-counted during the first count of Fulton County’s ballots, Georgia conducted both a machine recount and a hand recount of all its ballots, given how close the statewide result was. And there’s no evidence that any ballots were counted twice in the final tallies that showed Biden ahead of Trump.
It appears likely that a poll worker in Fulton County made a minor clerical error, and this error was corrected in the subsequent recounts.
Nevertheless, it is probably inevitable that the GOP-controlled state elections board will open an investigation into Fulton County. And once this investigation concludes, the state board can use it as a pretext to remove Fulton County’s local elections board and replace it with a temporary superintendent who can undermine voting within that county.”
“The outcome of Georgia’s 2022 statewide elections, in other words, may not be determined by the state’s voters. It could hinge on a sham investigation into Fulton County’s election administration — and by a partisan board’s subsequent decision to place a partisan official in charge of counting most of the votes in Atlanta.”
“prior efforts to restrict the franchise frequently placed unnecessary hurdles in the way of voters, such as by requiring them to show certain forms of ID or by limiting where and when voters can cast their ballot. These sorts of laws are troubling, but they can be overcome by determined voters.
SB 202, by contrast, is part of a new generation of election laws that target the nuts and bolts of election administration, potentially allowing voters to be disenfranchised even if they follow the rules.”
“The Voting Rights Act is arguably the most successful civil rights law in American history. Originally signed in 1965, it was the United States’ first serious attempt since Reconstruction to build a multiracial democracy — and it worked. Just two years after President Lyndon Johnson signed the Voting Rights Act into law, Black voter registration rates in the Jim Crow stronghold of Mississippi skyrocketed from 6.7 percent to nearly 60 percent.
And yet, in a trio of cases — Shelby County v. Holder (2013), Abbott v. Perez (2018), and Brnovich v. DNC (2021) — the Court drained nearly all of the life out of this landmark statute. After Brnovich, the decision that inspired Kagan’s statement that the Court has treated the Voting Rights Act worse than any other federal law, it’s unclear whether the Supreme Court would rule in favor of voting rights plaintiffs even if a state legislature tried to outright rig an election.
These cases are the culmination of more than half a century of efforts by conservatives who, after failing to convince elected lawmakers to weaken voting rights, turned to an unelected judiciary to enact a policy that would never have made it through Congress. All of this is bad news for minority voters in America, who are most likely to be disadvantaged by many of the new restrictions currently being pushed in statehouses across America, and for the country’s relatively young commitment to multiracial democracy. And there are at least three reasons to fear that decisions like Shelby County and Brnovich foreshadow even more aggressive attacks on the right to vote.”
“Georgia recently enacted a law that effectively enables the state Republican Party to disqualify voters and shut down polling precincts. If the state GOP wields this law to close down most of the polling places in the highly Democratic, majority-Black city of Atlanta, it’s unclear that a Voting Rights Act that’s been gravely wounded by three Supreme Court decisions remains vibrant enough to block them.”
“The impact of Shelby County was fairly swift. In 2013, for example, Texas enacted racially gerrymandered legislative maps, even though a federal court had rejected many key elements of these maps under the Voting Rights Act’s preclearance provisions. Yet, with preclearance dead, the Supreme Court upheld nearly all of Texas’s gerrymandered maps in Abbott v. Perez (2018).
Similarly, if preclearance were still in effect, it is unlikely that many of the controversial provisions of Georgia’s recently enacted voter suppression law would survive. And certainly no federal official acting in good faith would permit Georgia to simply start closing down polling places in Black neighborhoods.”
“The biggest uncertainty surrounding the Court’s voting rights decisions, in other words, is whether the Court will enable efforts to lock Republicans into power no matter what voters do to elect their candidates of choice, or whether the Court’s majority will, at some point, tell their fellow Republicans in state legislatures that they’ve gone too far.
The answers to these questions, moreover, won’t be found anywhere in the Constitution, or in any law enacted by Congress. The Roberts Court’s voting rights cases bear far more resemblance to the old English common law, a web of entirely judge-created legal rules governing areas such as contracting and property rights, than they do to the modern, more democratic model where federal judges are supposed to root their decisions in legal texts. The future of democracy in the United States will be decided by six Republican-appointed justices’ arbitrary whims.
And, if a majority of the justices do support a wholesale attack on liberal democracy, their actions will hardly be unprecedented.
Nearly a century before President Lyndon Johnson signed the Voting Rights Act, Congress and state legislatures passed a different kind of legislation that was supposed to guarantee the franchise to people of color.
It’s called the 15th Amendment, with its command that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The pre-Voting Rights Act United States did not deny voting rights to millions of African Americans because we lacked a legal guarantee protecting the right to vote. We did so because powerful public officials — including judges — decided that they did not care what the Constitution had to say about voting rights.
We’re about to find out whether the Supreme Court is going to repeat that history.”