Breaking Down Voting Rights Litigation: Part One

Voting rights litigation focuses on addressing all barriers to or attacks on the ballot box, no matter how small they may seem. Understanding how these issues are litigated in courtrooms is the first step in knowing what policies and practices to advocate for in state and federal legislative chambers. In today’s Explainer, we break down three of the six main categories of voting rights litigation and provide some common topics litigated in each area. 

Keep an eye out for the second part of this series coming soon! 

Voter Registration

Registering to vote shouldn’t be a complicated or overly burdensome process, but many states impose arbitrary requirements or limit how and where people can register to vote. Litigation brought by voting rights advocates can help expand access to the franchise and ensure that every eligible voter is able to register and cast their ballot.

What it is: Voter registration deadlines vary state by state. Some states allow voters to register on Election Day itself, while most require your registration to be returned up to a month before. 

How it disenfranchises voters: Though a seemingly arbitrary policy, changing registration deadlines and requirements can widely affect voters who may miss the opportunity to update their registration or register to vote. It is often the case that registrations need to be updated with minor details, such as a name change or change of address, that do not affect an individual’s overall eligibility to vote. However, people living in states with complicated or limited registration opportunities may miss their chance to register in time for the next election due to reasons that are not related to their actual eligibility to vote.

Litigation examples: A new law in Montana that’s being challenged in multiple lawsuits eliminated Election Day registration for nearly all eligible voters, despite the fact that this form of registration has been widely popular since it was first enacted in 2006. Groups challenging the law argue that Election Day registration ​​makes voting more accessible for those who may not otherwise have a feasible way of going to an elections office or mailing a form to complete or update their voter registration. It also allows individuals who may need to simply update their file to reflect a name or address change or who need to address a government error to still cast a ballot.
What it is: It’s general knowledge that you register to vote where you live, but the reality is that residency requirements can be a bit more complicated than that. Some states require proof that you live where you say you live in order to register to vote. This can involve providing paperwork, bills or other documents that confirm your residency.

How it disenfranchises voters: Strict residency laws tend to affect young, low-income and minority voters or those who have recently moved within or out of state — groups that are less likely to have adequate documentation for strict residency requirements. 

Litigation examples: A New Hampshire law that required proof of residency from a narrow list of acceptable documents was recently struck down for imposing “unreasonable burdens on the right to vote.” 

In Texas, there is a lawsuit challenging its newly-passed residency requirement law, which prohibits establishing residence “for the purpose of influencing the outcome of a certain election,” restricts individuals from registering to vote using an address where they don’t live full-time, adds strict voter identification requirements for voters that use P.O. boxes to register to vote and more.
What it is: Many, but not all, states offer the option to register to vote online. Even if states do offer the option, they may attach misleading or burdensome requirements to complete an online registration application. 

How it disenfranchises voters: Voters who may not have access to reliable internet service, need assistance navigating online forms or who cannot fulfill burdensome online registration requirements and do not have access to mail or in-person registration may not be able to register to vote.

Litigation examples: Texas, a notoriously difficult state to vote in, has a “wet-signature” requirement for any online applications. This means that individuals who submit their registration applications electronically or through fax must also provide a copy of their application with his or her original signature — signed with pen on paper — to an elections official. This law is being challenged in court

In another lawsuit, Texas’ failure to offer legitimate online registration opportunities through transportation agency websites was successfully challenged. Despite federal requirements that states offer voter registration or the ability to update registrations when an eligible voter obtains, renews or updates his or her driver’s license, Texas was failing to actually register voters who chose this option as advertised online. After a settlement was reached with Democratic groups, Texas now offers registration options to anyone completing an online driver’s license transaction.
What it is: Felony disenfranchisement is the denial of voting rights on the basis of a felony conviction. 

How it disenfranchises voters: While many states allow individuals to regain voting rights after their sentence is completed in some form, some states permanently disenfranchise individuals with past felony convictions for life, even if their sentence is completed.

Litigation examples: Litigation, such as in Florida, Mississippi and North Carolina, challenges certain laws for denying the right to vote in a discriminatory manner. You can learn more about the status of felony disenfranchisement laws here.

In-Person Voting

Casting your ballot in person at the polling booth is a common way to vote, but politicians and organizations focused on suppressing voter turnout have complicated the process over the years.

What it is: In states with long wait times at the polls, volunteers will often hand out food and water to those waiting in line — a common practice. While this activity is not used to sway voters to cast a ballot a certain way, it still has come under attack in Republican states, with Georgia recently criminalizing line warming in their recently-passed voter suppression law. Florida also included in its new voter suppression law a vague ban on “engaging in any activity with the intent to influence or effect of influencing a voter,” which could be read as banning the distribution of items to voters. Other states, such as Montana and New York, have had bans on the practice for years. In Montana, any candidate or individual connected to a campaign cannot hand out food or water to voters. In New York, nonpartisan groups are banned from line warming.
 
How it disenfranchises voters: Given that polling places with long wait times are disproportionately located in communities of color, it’s easy to see how line warming bans affect voters of color. Georgia, for example, is known for having egregiously long wait lines in communities of color, often due to the closure of polling places.

Litigation examples: Multiple lawsuits currently challenge Georgia’s new line-warming ban, arguing that it violates the First Amendment by infringing on protected political speech encouraging voting. New York’s line-warming ban, which has been on the books for decades, is similarly being challenged in court for infringing on protected speech and the right to participate in the political process. The lawsuit points out that New York, like Georgia, has a history of long wait times at the polls and communities with large Black, brown and elderly populations face disproportionately longer wait times than predominantly white areas.
What it is: It can be confusing to determine which polling location you need to go to in order to vote. Polling locations can change between elections, voters may move or simply not be able to figure out to which location they are assigned. In some states, voters who arrive at the wrong precinct can cast a provisional ballot and state law then determines if that ballot will count in full or in part. Other states have strict laws about voting in one’s assigned precinct and will throw out an entire ballot that’s cast at the wrong precinct. 

How it disenfranchises voters: When state law mandates that an entire ballot cast in the wrong precinct will be thrown out, even if the voter is eligible to cast a vote for other statewide or federal races in that election, that person loses their voice in the electoral process. In states with frequently-changing polling locations or high rates of moving voters, voters may have high rates of out-of-precinct voting.
 
Litigation Examples: Arizona is one of the states that has a strict law regarding out-of-precinct voting. Arizona does not attempt to count the races for which the voter was eligible — for instance, statewide or federal races — but instead rejects the entire ballot if it was cast at the wrong precinct. Finding the correct precinct is particularly difficult in Arizona, where polling locations change with great frequency and the population has one of the highest moving rates in the country. Minority voters are disproportionately impacted: they are twice as likely as white Arizonans to vote in the incorrect precinct. This law was at the center of Brnovich v. Democratic National Committee, a lawsuit that made its way to the U.S. Supreme Court. Unfortunately, the court upheld the law, despite the fact that it largely affected Arizona’s Native American, Hispanic and Black citizens by unduly burdening their right to vote and limiting their access to the ballot box.
What it is: Strict voter ID laws require voters to provide a government-issued photo ID in order to cast a ballot. The types of IDs that are accepted at the polls vary depending on where you live.

How it disenfranchises voters: Opponents of strict voter ID laws point out that many Americans — 11% of U.S. citizens, as of 2017 — do not have acceptable forms of ID, particularly government-issued photo IDs, and obtaining them can be burdensome. There are many underlying costs involved with obtaining an acceptable ID, such as paying to retrieve documents like a birth certificate or traveling to an agency that issues IDs, that can create barriers for many individuals. These burdens fall disproportionately on voters of color, elderly voters, student voters, voters with disabilities and low-income voters. 

Furthermore, opponents of voter ID laws highlight the fact that these laws are often discriminatory and reduce turnout among voters of color, particularly in states that accept arbitrary forms of ID (such as allowing a concealed weapons permit, but not a student ID). Strict ID laws also impact transgender voters who often face challenges in obtaining an ID that accurately reflects their gender identity. 
 
Litigation examples: Voting rights advocates routinely challenge strict voter ID laws in court. In 2018, North Carolina voters challenged a law that defined a narrow list of qualifying photo IDs acceptable for voting, arguing that hundreds of thousands of eligible voters in the state lacked an acceptable ID under the law and faced barriers to obtaining one. The law was permanently blocked by the trial court, which found that the law was passed with the intent, at least in part, to discriminate against Black voters in violation of the state constitution. Following the 2020 election, other Republican states around the country pushed for stricter voter ID laws; eight states passed strict laws in 2021 alone. Many are currently being challenged in court for imposing an undue burden on the right to vote.

Mail-in voting

Mail-in voting, also known as voting by mail, provides a safe and easy way to cast a ballot. This was evident during the COVID-19 pandemic when litigation was brought to protect mail-in voting in light of the health concerns related to in-person voting. However, opponents of vote by mail allege unfounded claims of fraud and push policies that can further restrict access to this method of voting, particularly for voters of color and young voters.

What it is: Only eight states currently conduct all-mail elections, meaning that most votes (but not necessarily all) are cast via mail-in ballots. In other states, your ability to vote by mail can depend on a number of factors, such as your age, if you have a disability or whether your state requires an excuse to vote by mail or not.

How it disenfranchises voters: Arbitrary or strict vote-by-mail requirements can deter individuals from casting a ballot by mail or require them to vote in person when it is not feasible to do so. Expanding vote-by-mail opportunities provides all voters with more options to cast their ballots.

Litigation examples: Who was eligible to vote by mail came under attack during the 2020 election cycle when many states expanded the option to allow a safe alternative to voting in person. The Trump campaign sued in both Montana and New Jersey over the states’ decision to allow all-mail elections due to the COVID-19 pandemic, arguing without any evidence that mailing ballots to all eligible voters would result in mass fraud — claims that were rejected in court.
What it is: Signature matching is when election officials compare the signature on a mail-in (or absentee) ballot to one they have on file. If a ballot has a perceived signature mismatch, depending on where you live it may be discarded unless the voter is able to address the issue during the cure process, or the time period when voters are allowed to fix mistakes. 

How it disenfranchises voters: On average, between 1-2% of mail-in ballots are rejected every election because they fail to meet hyper-technical state laws, including signature-match laws, that govern counting the ballots of lawful, registered voters. While signature matching already disproportionately affects voters with disabilities, elderly voters and voters whose legal name may not match their signature, states further complicate the process if they don’t have uniform rules about how to conduct signature matching or do not provide an adequate opportunity to cure a defected ballot. 

Litigation examples: Litigation is often used to challenge these laws and the potentially disenfranchising effects they can have. A lawsuit in Michigan resulted in updated and uniform guidance for election workers on signature matching and cure processes. Other successful lawsuits resulting in reform have taken place in Florida, Georgia, Iowa and South Carolina.
What it is: Many states reject all ballots received after Election Day, even if they are postmarked on or before Election Day. 

How it disenfranchises voters: Received-by deadlines are often discretionary and they can disenfranchise voters who have done everything right but have their ballots thrown out because of delays with the U.S. Postal Service. This phenomenon was especially apparent during the 2020 general election when an increase in voting by mail due to the COVID-19 pandemic and a slowdown with the Postal Service resulted in election mail delivery delays. Voting rights advocates point out that strict Election Day deadlines disproportionately affect minority voters and argue that a postmarked-by deadline allows for more valid ballots to be counted compared to an Election Day deadline. 

Litigation examples: In 2020, after Pennsylvania extended its deadline to include ballots postmarked by Election Day and received by the Friday after Election Day, the Trump campaign and other Republicans vehemently fought to invalidate any ballots received during that extended timeframe. One case went all the way up to the Supreme Court, which denied a request by Pennsylvania Republicans to block the counting of ballots postmarked by Election Day but received after.
What it is: Many states allow designated organizations, election officials or family members to collect a voter’s signed and sealed ballot and submit it on behalf of the voter. This practice has come under fire by Republicans who refer to it as “ballot harvesting,” and many voter suppression laws focus on limiting the number of ballots one individual can return or even eliminating the practice in full.

How it disenfranchises voters: This option is vital for voters who are unable to leave their home to cast a ballot or who may not have access to transportation or reliable mail services to return their ballot. You can read more about how ballot collection works here.

Litigation examples: Montana previously had a ban on community-ballot collection, ignoring the fact that it is a necessary voting option for many Native American, rural and disabled voters. The burdensome restriction limited who could return a voter’s absentee ballot to an election official, postal worker, family member, household member, caregiver or “acquaintance” of the voter. The ban further restricted ballot collection by limiting the number of absentee ballots and requiring those delivering ballots to sign a registry. The law was challenged by Democrats and struck down for violating the Montana Constitution.
What it is: Ballot drop boxes — special containers where voters can easily drop off absentee ballots in sealed and signed envelopes — provide a great alternative for voters to skip the mail process entirely, drop off their mail ballots and have them be taken directly to local election offices. 

How it disenfranchises voters: Despite the fact that voting via a drop box is safe and secure, Republicans challenged their use during the 2020 general election and made it a legislative priority to decrease the number of drop boxes. A decreased number of drop boxes means fewer places for voters to conveniently drop off their ballots, which can raise barriers to return ballots via other less accessible means.

Litigation examples: Voting rights advocates have been fighting to protect and expand the use of drop boxes in states that want to severely limit the use of drop boxes, like Georgia or Texas, while also defending their use from attacks from conservative groups in states like Wisconsin.