Checking In With the Major Voter Suppression Laws
The 2020 election was safe, secure and led to record turnout nationwide. Yet, red state after red state enacted new voter suppression laws in 2021.
Republican-controlled legislatures battled it out over who could pass the most egregious restrictions despite the fact that many of those same leaders called the 2020 elections “transparent” and “successful.” Last spring, the backlash to the new laws was swift as lawsuits were quickly filed. Today, we’re checking in with those major voter suppression laws, catching up on what’s happened in the courts so far and what to expect in the next few months.
19 states enacted restrictive voting laws in 2021. Seven states enacted the worst of the worst.
Despite record turnout in 2020, the Republican-controlled Iowa Legislature decided to restrict nearly every method of voting. Senate File 413 was pushed through the Legislature in February and signed by the governor on March 8, 2021 — the first major voter suppression bill of 2021. A follow up law, Senate File 568, was enacted a few months later in June.
Together, the laws shorten the time period for early voting and for mail-in ballot requests and returns, limit drop box locations, cut hours for in-person voting on Election Day, severely limit third-party ballot collection and block any ballots received after Election Day — even if they were mailed in time — from being counted. Additionally, Iowa voters will also have their registration status changed to “inactive” after missing just one election.
If Iowa’s voter suppression bills did not receive significant national attention, Georgia’s definitely did. The 93-page Senate Bill 202 was signed by Gov. Brian Kemp (R) during a televised press conference on March 25, 2021.
S.B. 202 includes a host of voter suppression measures like shortened absentee ballot timelines, drop box restrictions and much more. One provision stood out as particularly egregious — making it a misdemeanor offense to distribute items, including food or water, to voters waiting in line. This provision, known as a line warming ban, would be replicated by more states in the months to come.
Here’s the fact about long lines: they don’t impact voters equally. In Georgia, long lines are concentrated in predominantly Black neighborhoods. Research analyzing the June 2020 primary elections revealed that the average wait time after 7 p.m. at polling places that were 90% white was six minutes. In contrast, at polling places with nonwhite voters comprising over 90% of the registered voters, the average wait time was 51 minutes.
GOP lawmakers in Arkansas passed a steady stream of new laws, four of which caught notable attention. Act 249, enacted on March 3, 2021, removes the affidavit fail-safe option, a sworn statement that voters who lacked acceptable forms of identification could sign to allow them to cast a ballot. Now, Act 249 requires voters who lack proper identification, whether casting a ballot in person or by mail, to bring a form of identification to the county clerk’s office within six days of the election.
In April, Gov. Asa Hutchinson (R) signed Act 736, which requires elections officials to match the voter’s signature from their mail-in ballot application with the signature on their voter registration application. Hutchinson also signed a line warming ban (Act 728) while allowing a significantly earlier ballot receipt deadline (Act 973) to become law without his signature.
In Big Sky Country, there were four laws at the center of the GOP Legislature’s anti-voting campaign:
- House Bill 176 ends Election Day registration, an option that had been in place in Montana for 15 years.
- Senate Bill 169 narrows the list of acceptable voter IDs. While concealed carry permits are acceptable as primary IDs, student IDs are not.
- House Bill 530 prohibits ballot collection efforts completed in exchange for any financial compensation. This restriction has an outsized impact on Montana’s Native American communities who rely on third-party ballot collection.
- House Bill 506 prohibits election officials from mailing ballots to new voters who will be eligible to vote on Election Day, but are not yet 18.
Another problematic law, Senate Bill 319, bans voter registration and education activities on public college campuses.
Gov. Laura Kelly (D) vetoed House Bill 2332 and House Bill 2183, stating that they were “a solution to a problem that doesn’t exist” and “designed to disenfranchise Kansans.” In addition to new restrictions on mail-in voting, the laws transfer some key powers of election administration from the executive branch to the Legislature. The laws prevent the executive and judicial branches from changing election laws in a highly-partisan process of “legislative seizure.”
On May 3, the Republican Legislature secured the votes to override Kelly’s veto of both bills.
Florida’s Senate Bill 90, an omnibus voter suppression bill, was enacted on May 6, 2021. Omnibus bills refer to those that cover a range of topics in a single, large bill. In Florida, along with Georgia and Texas, that’s how the state enacted numerous new restrictions at once.
Gov. Ron DeSantis (R) stated: “we should take a moment to enjoy the fact that Florida ran perhaps the most transparent and efficient election in the nation in 2020.” Despite that, S.B. 90 bans line-warming, restricts drop boxes and adds new requirements for filling out a mail-in ballot application, among other things. Notably, Florida’s law takes aim at a new target: get out the vote and third-party voter registration organizations that want to encourage civic engagement.
Thanks to the efforts of Democratic lawmakers, Texas Republicans weren’t able to pass their omnibus voter suppression bill, Senate Bill 1, until September 2021. Gov. Greg Abbott (R) called two special legislative sessions after Democrats’ coordinated walk-out from the chamber during the regular session. S.B. 1 adds documentation requirements in order to vote by mail, limits polling hours, bans drive-thru and overnight early voting, empowers partisan poll watchers and more.
Lawsuits were filed soon after.
Civil and voting rights organizations kept a close eye on the laws moving through these legislatures. In all seven states, at least one lawsuit and, in many cases, several lawsuits were filed challenging the new laws for violating state or federal law.
- There is one lawsuit in Iowa. The League of United Latin American Citizens of Iowa challenged S.F. 413 and S.F. 568 for violating the Iowa Constitution.
- There were nine lawsuits filed against Georgia’s S.B. 202. One lawsuit was dismissed, two lawsuits (here and here) have litigation ongoing separately and the other six cases were consolidated. The court concluded that the six consolidated lawsuits, filed by a variety of voting and civil rights groups as well as the U.S. Department of Justice (DOJ), “involve virtually identical defendants and mostly the same facts and legal issues.” The consolidated case challenges S.B. 202 under the 14th Amendment and Section 2 of the Voting Rights Act (VRA).
- There is also one lawsuit in Arkansas. The League of Women Voters of Arkansas and Arkansas United challenged the four laws — Act 736, Act 973, Act 249 and Act 728 — for violating the state constitution.
- There are several different lawsuits in Montana challenging different combinations of Montana’s election laws. A consolidated lawsuit on behalf of the Montana Democratic Party, Western Native Voice and Montana Youth Action challenges four new laws for violating the Montana Constitution. Another lawsuit individually challenges H.B. 176, which ends Election Day Registration, and two others (here and here) are challenging S.B. 319, the voter suppression law targeting college students.
- There are two lawsuits in Kansas. The first was filed in state court by the League of Women Voters of Kansas, Loud Light and others. It challenges both H.B. 2332 and H.B. 2183 for violating the Kansas Constitution. The second was brought in federal court by VoteAmerica and Voter Participation Center and challenges provisions of H.B. 2332 for violating the First and 14th Amendments.
- In Florida, four cases were filed immediately following the law’s passage and were consolidated for trial — League of Women Voters of Florida v. Lee, Disability Rights Florida v. Lee, Florida Rising Together v. Lee and Harriet Tubman Freedom Fighters v. Lee. The cases allege that the challenged provisions of S.B. 90 place an undue burden on the right to vote in violation of the First and 14th Amendments and that the law intentionally discriminates against Black and Latino voters in violation of the 14th and 15th Amendments and Section 2 of the VRA.
- Everything’s bigger in Texas — including the eight lawsuits. Six of these lawsuits, including one filed by the DOJ, challenge S.B. 1 under the First, 14th and 15th Amendments, the VRA and the Americans with Disabilities Act, and were consolidated. Meanwhile, the Texas NAACP filed in state court and the Harris County elections administrator challenged one narrow provision.
Arkansas and Florida have held full trials. What else has happened so far?
In the life cycle of a voting rights case, there are often several attempts by defendants to get a case dismissed before trial. Motions to dismiss were denied in Georgia and elsewhere.
Another common step is for plaintiffs to seek preliminary injunctions, or immediate relief to prevent laws from going into effect while litigation continues. In Kansas, a preliminary injunction against one challenged provision was denied (a decision that has been appealed to a higher court) while a federal court entered a preliminary injunction, then permanent injunction against H.B. 2332. In the Harris County elections administrators’ case, a judge granted a preliminary injunction for the challenged provision. However, on appeal to the 5th U.S. Circuit Court of Appeals, that decision was paused.
Most recently, a preliminary injunction was entered against Montana’s four voter suppression laws. A full trial is expected to take place in June, but in blocking the four laws while the lawsuit moves forward, the judge concluded that the plaintiffs are likely to succeed on the merits and prove the laws impose undue burdens on the right to vote.
Arkansas and Florida are the two states that have held full trials, where both sides presented witnesses and evidence.
On the last day of the trial in March, an Arkansas judge ruled from the bench that all four laws violate the Arkansas Constitution and would be permanently enjoined, or blocked from going into effect. A written order followed on March 24. The judge wrote that “the evidence presented during the trial of this lawsuit demonstrates that [the challenged laws] are based entirely on conjecture, speculation, surmise, misinformation, and fear-mongering about allegations of voter fraud and election insecurity.” However, the defendants appealed this decision to the Arkansas Supreme Court, which paused the trial court’s decision to block the laws while the appeal is litigated.
After a two-week trial that included over 30 witnesses, a 3,632 page trial transcript and thousands of pages of exhibits admitted into evidence, a Florida judge struck down three out of the five challenged provisions of S.B. 90. The judge concluded that the provisions are “intentionally discriminatory” against Black Floridians in violation of the VRA and 14th and 15th Amendments. In an extraordinary move, the judge also placed Florida under certain preclearance requirements for the next 10 years.
The recent decisions out of Arkansas and Florida — the first two states that went to trial over post-2020 voter suppression laws — and Montana’s preliminary injunction are big wins for voters. When challenged in court, the GOP’s “voter fraud” arguments aren’t holding up against bad, anti-voter laws.
Over the course of the next few months, we’ll see more and more laws head to trial, with the hopes that there is resolution, or at least temporary relief, before the 2022 elections. While cases are subject to delays or new developments, here’s what we can expect right now:
- A full trial for the three consolidated cases in Montana is scheduled for June 20.
- A full trial for the six consolidated cases in Texas is set to begin on July 5.
- After a March trial was postponed, Iowa’s voter suppression laws will likely head to court in late summer 2022.