State Legislatures Reveal How the “Big Lie” Is Transforming

Red, blue and gray-toned state legisature buildings on a bright blue background. There is a hand, megaphone and lighter burning a $100 bill collaged on a few of the buildings.

In the almost two years since the 2020 general election, the “Big Lie” has not only endured, but thrived. Surveys show that around 70% of Republican voters believe in it.

The false belief that the 2020 election was stolen and that voter fraud is a pervasive issue has only solidified. It is a central campaign platform for Republicans running for secretary of state, governor and a myriad of other offices. State lawmakers have also used their offices to further embolden and codify this “Big Lie” into law.

The time period in which state legislatures draft and vote on legislation is called a legislative session. As many sessions conclude for the year, the laws introduced and passed in 2021 compared to 2022 clue us into the shifting priorities of Republicans seeking to sow doubt into our electoral process. 

In 2021, lawmakers responded to 2020 voting expansions with reactionary legislation. 

According to the Brennan Center for Justice, as of June 21, 2021, 17 states enacted 28 new laws that restrict access to the vote (that number ballooned to 34 laws in 18 states by the end of the 2021 calendar year). “The Brennan Center has been tracking voting legislation since 2011… 2021 was the most amount of voting legislation that we had seen,” Jasleen Singh, counsel in the Brennan Center’s Democracy Program, told Democracy Docket.

When COVID-19 began to ravage the world in the spring of 2020, both red and blue states alike moved swiftly to approve reforms that accommodated voting during a public health crisis. Washington, D.C. and 23 states made changes regarding who is permitted to vote by mail. At the same time, states expanded the use of secure ballot drop boxes and encouraged early voting. The result? Record breaking voter turnout rates nationwide despite a deadly pandemic.

When legislative sessions began just a few months after the 2020 general election, Republican lawmakers quickly revealed their priority: making sure that voting would never be as easy as it was in 2020. 

Consequently, many of the laws introduced in 2021 focused on curbing mail-in voting after its unprecedented use. This included adding signature or ID requirements for mail-in ballots, prohibiting elections officials from proactively sending mail-in ballots to those who haven’t requested one and making it more difficult to return these ballots. Iowa, Kentucky and Montana are among the states that enacted restrictions on ballot collection, the practice of returning someone else’s signed and sealed ballot on their behalf, and increased the penalties for violators.

Drop boxes, secure containers where voters can conveniently drop off completed ballots, illogically became the target of Republican ire as well. In 2021, Florida, Georgia, Iowa and Indiana all successfully passed legislation to limit the number, location or availability of these drop boxes. Other states limited the number of days of early voting

When Texas finally passed its omnibus voter suppression law in September 2021, the bill included provisions that prohibited drive-thru and overnight early voting (also called 24-hour voting). These were a state-specific response to pro-voting measures enacted in Harris County, Texas that enabled Houston to break voting records.

“Last year, in 2021, we saw a massive push for restrictive voting bills and legislation,” Singh added. “The kinds of things that make it harder for a person to cast a ballot or stay on voter rolls.” 

In 2022, there’s an intensifying focus on who controls elections.  

In 2022, the push for restrictive voting laws continues, but a new trend has emerged more clearly in the recent months: as one report by States United Democracy Center, Protect Democracy and Law Forward puts it, state legislatures are “politicizing, criminalizing, and interfering with election administration.”

“This trend of election subversion bills has accelerated dramatically from 2021 to 2022,” Rachel Homer, Counsel with Protect Democracy, told Democracy Docket. “And in particular, the bills have gotten more sophisticated, more layered, more entrenched.” By early April 2022, over 229 bills had been introduced in 33 states, compared with 148 bills the year before.

A bar chart titled "Bills Introduced To Politicize, Criminalize or Interfere With Elections." As of April 8, 2022, the chart indicates 229 bills in 33 states. As of April 6, 2021, the chart indicates 148 bills in 32 states.
Source: A Democracy Crisis in the Making 

In the report Homer contributed to, there is a focus on five types of legislative trends that fall into this larger umbrella of election subversion: (1) usurping control over election results; (2) requiring partisan or unprofessional election “audits” or reviews; (3) seizing power over election responsibilities; (4) creating unworkable burdens in election administration and (5) imposing disproportionate criminal or other penalties.

By April 2021, laws politicizing and interfering with election management had been enacted in Iowa, Tennessee and Georgia. By the corresponding month this year, 13 states had enacted such legislation. In Wisconsin, two dangerous election bills passed the Legislature before they were vetoed by Gov. Tony Evers (D). “In Wisconsin, there is one person, the governor, standing between total election subversion and our democracy,” Nicole Safar, Executive Director of Law Forward, explained to Democracy Docket in an email.

This year, the Brennan Center added an “Election Interference Legislation” category to their Voting Law Roundups. “These election interference proposals, they’re not necessarily new,” clarified Singh, but as she explained, “Because it was coming up so often, and we were noticing it as a trend, we decided to actually track that legislation in a more comprehensive manner.” 

The most blatant types of these election administration laws wrestle control over elections from local administrators to the state legislature. One startling example is Arizona’s House Bill 2596, which was introduced in January and fortunately did not advance within the Legislature. In addition to eliminating early voting and no-excuse mail-in voting in the Grand Canyon State, the bill proposed a new section to Arizona’s elections code that gives the state Legislature the ultimate authority to “accept or reject the election results” and allow any elector to request a new election be held.

Among the laws pushed this year are those that create units to investigate fraud or, in the case of Florida, establish an election police force. In Georgia, lawmakers passed Senate Bill 524 this spring, empowering the Georgia Bureau of Investigations to investigate election crimes, raising concerns for potential voter intimidation. Additionally, in 2022, Homer noted the dramatic increase in bills requiring partisan or unprofessional “audits” or reviews: “Those are a type of bills that have passed pretty frequently.” There are also new trends for the GOP to empower partisan poll watchers and ban the use of external funding.

In Alabama, Kentucky and Oklahoma, it’s now actually a crim­inal offense to solicit or use private funding for elections. Harsh penalties targeting well-meaning election workers are similarly proliferating. “A troubling trend we’ve seen is penalizing the minutiae of election administration,” Safar concurred. She offered an additional example from Law Forward’s home state of Wisconsin: Senate Bill 935, which was vetoed by Evers, would have prevented election officials from correcting inconsequential errors on absentee ballot certificates. If these individuals corrected such an error, it would be a misdemeanor offense.

Homer also pointed out the push to create new burdens in election administration, even if such requirements are “something that might not sound offensive from afar.” Instead, certain expectations, such as requiring ballots to be counted by hand, could create big problems down the line: “Most significantly, it would guarantee a delay of weeks or possibly months,” Homer described. “[This] would interfere with the certification process and create an opportunity for bad actors to claim ‘we can’t know the results’ and then declare their preferred winner to be the winner.”

The core of the “Big Lie” has stayed constant, but the strategies to upend our elections have changed.

A New York Times investigation revealed over 350 sitting Republican legislators in swing states have used their offices to discredit or try to overturn the results of the 2020 presidential election. These anti-democracy lawmakers account for 44% of GOP legislators in nine key states, consequential figures considering the immense power state legislative chambers have over voting and election rules. 

The voting restrictions of 2021 help “manufacture” the voter fraud that the GOP is desperately searching for by criminalizing ordinary activities. In this way, voter suppression efforts go hand and hand with election subversion. The new laws from the first few months of 2022 reveal even more brazen attempts to subvert the will of the people — directly, or through creating confusion, chaos and delays.

“The rhetoric has shifted in some ways to be more aggressive, more violent and to accelerate this trend, but the core motivation is what it has been since the 2020 election,” said Homer. “Which is — to change the rules, change the decision makers and change the game to try to change the outcome.”