The majority of U.S. states, including Minnesota, are debating ballot access laws ahead of a ruling this summer by the U.S. Supreme Court that could gut what’s left of the landmark Voting Rights Act of 1965. (Peggy Bayard/Patch)
SAINT PAUL, MN — Echos of a 2020 presidential election that saw historic voter turnout and an unprecedented crush of absentee ballots are sounding in statehouses across the country with legislation either restricting or expanding voting rights, including in Minnesota, according to a new report.
The flurry of legislation comes as rancor continues over the election, and former President Donald Trump persists in repeating false claims of voter fraud that he began making before a single 2020 presidential election ballot was cast — as states scrambled to expand mail-in balloting to enhance voter safety during the coronavirus pandemic.
The legislative push coincides with a key test of the 6-3 conservative majority on the U.S. Supreme Court, which heard arguments Tuesday in an Arizona case that could gut what’s left of the landmark Voting Rights Act of 1965.
The report from the Brennan Center for Justice at New York University Law School, updated Feb. 19, found:
- State lawmakers in 43 states had carried over, prefiled or introduced 253 bills with provisions that would restrict voting access; that compares with 35 such bills in 15 states by Feb 3, 2020.
- In a different grouping of 43 states, 704 pieces of legislation would expand voting access; that compares with 188 bills filed in 29 states as of Feb. 3, 2020.
As this is happening, the Democrat-led House is pushing sweeping reforms that touch on every aspect of the electoral process, including making voter registration automatic, restricting partisan gerrymandering of congressional districts, striking down hurdles to voting and adding transparency to a shadowy campaign finance system that allows wealthy donors to anonymously bankroll political causes.
House Resolution 1, a big priority for Democrats for years, passed the lower chamber Wednesday but faces an uphill battle in the Senate, which is split 50-50 between Republicans and Democrats. Because it’s a controversial measure, it will have to get 60 votes to overcome an expected Republican filibuster, a tally that will be difficult for Democrats to reach.
The Brennan Center, a bipartisan law and policy institute at New York University Law School, noted in the report on its 2021 state voting bills tracker that some legislation would have both restrictive and expansive effects.
In Minnesota, the Brennan Center found eight bills that would restrict voting access and 30 bills that would expand access. One bill, MN HF 1302, would have both restrictive and expansive effects.
Trump has continued his false claims in the weeks since he left office. He repeated them again last weekend at the annual Conservative Political Action Committee confab in Orlando, Florida, where he resurfaced claims the election was rigged that were rejected by judges, Republican state officials and Trump’s own administration.
The Trump administration’s Cybersecurity & Infrastructure and Security Agency said the 2020 vote was the fairest U.S. election in history, and multiple courts rejected Trump campaign lawsuits in key battleground states. The staff at The New York Times called election officials in every state and found no discrepancies that would have changed the outcome of the vote. Even data from the ultra-conservative Heritage Foundation shows voter fraud is practically nonexistent — with 1,311 cases since 1979. That includes 16 cases resolved in 2020 and two more this year.
Though rare, there have been significant cases involving the collection and delivery of ballots — called “ballot harvesting,” which is one of the issues in the case before the Supreme Court. In 2018, the results of a North Carolina congressional race were set aside in North Carolina, and a Republican campaign worker was indicted in connection with his role in the ballot tampering case. He has pleaded not guilty to the felony charges filed against him and has asked for a jury trial.
The case before the Supreme Court could give states broad authority to reshape voting laws, in some cases making it more difficult for some residents to vote.
In 2013, the court gutted a key provision of the Voting Rights Act of 1965, telling state and local governments with a history of racial discrimination they no longer needed to get Justice Department clearance before changing voting laws. Chief Justice John Roberts argued that times had changed in the nearly 50 years since the landmark legislation outlawed discriminatory practices in place in many Southern states since the Civil War, including literacy tests and poll taxes, and that treating some states differently was unconstitutional.
Roberts also said the effect of the court’s action was moot, because Section 2 of the law bans discriminatory voting laws and practices nationwide. But now, two Arizona cases put Section 2 in play again, and a Supreme Court with a 6-3 conservative majority could further weaken what’s left of the Voting Rights Act of 1965.
On Tuesday, all six of the conservative judges signaled a willingness to throw out an appellate ruling striking down a 2016 Arizona law that limits who can easily return ballots for another person, and a separate one discarding ballots cast in the wrong precinct, according to a report by The Associated Press.
Challengers to the law said, and the 9th U.S. Circuit Court of Appeals agreed, that both measures violated Section 2 of the Voting Rights Act, and that they adversely and disparately affected Latino, Black and Native American voters. Although the court struck down the rules, they remained in force in the 2020 election.
Former Democratic National Committee chair Tom Perez told National Public Radio that upholding the provision barring the collection of absentee ballots by anyone other than a family member or caregiver would limit the ability of Arizona’s rural residents — and especially members of the Navajo Nation — to vote. Many people aren’t on a postal route, and “some people have to travel an hour or two to get to a mailbox, and so voting requires the active assistance of friends and neighbors,” he said.
“I don’t think you can understand this case without understanding the geography of Arizona,” Perez told NPR. “The Navajo Nation is 27,000 square miles. It’s bigger than West Virginia. It’s very remote. There’s a lot of abject poverty.”
Lawyer Michael Carvin, who defended the Arizona law in Tuesday’s oral arguments, told NPR that “Democratic operatives, as part of their get-out-the-vote strategy, [are] handling thousands of ballots” and that the ban on ballot collection is a legitimate anti-fraud measure.
“The notion that we can have thousands of ballots out there in the hands of Democratic Party operatives and not having one of them tempted to do something wrong strikes me as ridiculous,” Carvin told NPR.
A court ruling is expected this summer. The justices could make it more difficult, if not impossible, to use the Voting Rights Act to sue over legislation that cites election security as the reasons to restrict voter access or create obstacles to casting a ballot.
The court could find that claims can only be brought under Section 2 if policies are intentionally discriminatory, but not if they result in discrimination, Sean Morales-Doyle, deputy director for voting rights and elections at the Brennan Center for Justice, told reporters on a call last week.
“Even if they don’t find Arizona’s policy to be discriminatory, they can make that determination and not take up some of these extreme arguments that are being made to do harm to the remedy that we have left under the Voting Rights Act,” Morales-Doyle said.
More than a fourth of the bills filed in state legislatures address absentee voting reform, according to the Brennan Center for Justice. Primarily, they would:
- Limit vote-by-mail access.
- Impose stricter voter ID requirements.
- Cut voter registration opportunities.
- Enable more aggressive purging of voter rolls.
Lawmakers in the battleground states of Arizona, Pennsylvania and Georgia have filed the highest number of restrictive bills, with 19, 14 and 11 pieces of legislation, respectively.
Bills to expand voting access focus primarily on:
- Mail-in voting
- Early voting
- Voter registration
- Voting rights restoration
New York has the most with 87 bills, but the Brennan Center noted that a significant number of proposals have been introduced in states with a history of voter suppression, including Mississippi with 38 bills, Missouri with 26 and Texas with 67 bills.
» Read more at the Brennan Center for Justice
The Associated Press contributed reporting.