On Wednesday afternoon, Senate Democrats failed to overcome a Republican filibuster of S. 2747, the Freedom to Vote Act. This, coupled with the lack of Republican support for the John Lewis Voting Rights Advancement Act, likely means any effort to pass federal legislation protecting voting rights in the 117th Congress is doomed absent any changes to Senate rules.
But even without federal legislation, there are many things individual states can do to protect voting rights, and when it comes to individual action, voters can lobby state elected officials to enact changes to election rules. America is a federation, after all, and the states have substantial leeway to pursue their own reforms absent federal action. Here, we outline four things states can do to protect voters: remove barriers to registration, make voting as easy as possible, protect the vote certification process from partisan meddling and pass a state-level voting rights act.
1. Remove barriers to voter registration.
First, states should prioritize reforms that remove or mitigate the barriers voters face in becoming registered in the first place. The registration reforms contained within the Freedom to Vote Act represent a good starting point. States can and should:
- Enact an automatic voter registration system through their DMV and ensure all voters have access to online voter registration tools where they can easily update their registration.
- Offer same-day voter registration at all polling locations, both during the early-voting period and on Election Day.
- Restore voting rights for felons who have served their time.
2. Make casting a vote as easy as possible.
Then, states should make voting as easy as possible by increasing the options voters have to cast a ballot, including making early voting and voting by mail widely accessible. States can:
- Offer at least 15 consecutive days of early in-person voting, including at least two weekends.
- Establish no-excuse mail voting for all voters.
- Give voters free postage, ensure ballots postmarked on or before Election Day are counted and allow community organizations to collect and deliver sealed ballots.
- Provide accessible drop boxes to return ballots and an easy system for curing ballot deficiencies.
- Make Election Day a holiday.
- Prohibit long lines at polling locations.
These reforms only represent a starting point. States could also follow in the footsteps of California, Colorado, Hawaii, Nevada, Oregon, Washington, Utah and Vermont and enact all-mail elections. This provision guarantees every registered voter in these states receives a ballot for every election in the mail. In-person voting is also available for those who want it at designated vote centers. In Colorado, adopting all-mail elections is proven to have increased voter turnout, especially among low-propensity voters like youth, blue-collar workers and minorities.
3. Protect the vote certification process from partisan meddling.
States can also work to protect the vote certification process. As evidenced by the aftermath of the 2020 presidential election, a major weakness in American elections is vote certification. A Trump-led pressure campaign on canvassing board members in Michigan almost resulted in the state’s failure to certify the 2020 election results, an unprecedented outcome with unknown ramifications. The right to vote is hollow if it does not include the right to have one’s vote counted fairly. Therefore, ensuring votes are counted and certified fairly is just as important as ensuring voters can easily cast a ballot in the first place.
Thankfully, there are ways states can protect the vote certification process from partisan interference. As we’ve written before, states can:
- Clearly define and limit the powers of state officials involved in certification, so their role is only to ensure the math is correct, nothing more.
- Remove unnecessary steps in the process, like having county boards certify before moving on to the state level.
- Take responsibility for final certification out of the hands of partisan, elected officials — for example, transfer this duty to a three-judge panel of the state Supreme Court instead.
America is an outlier among advanced democracies in giving partisan officials oversight of election administration and certification. It’s beyond time to take that power out of partisan hands, especially since Republicans have already telegraphed that they may use the vulnerabilities in the vote certification process to steal a close election in 2024.
4. Pass a state-level voting rights act.
Finally, states can pass their own state-level voting rights act, as Virginia did this year. Virginia used to be subject to preclearance under the Voting Rights Act of 1965 (VRA), which meant any changes to voting laws in the state had to get prior approval from the U.S. Department of Justice before they went into effect. Voters in Virginia lost these protections when the U.S. Supreme Court gutted preclearance in Shelby County v. Holder. But now, thanks to the efforts of Virginia’s new Democratic majority and Gov. Ralph Northam (D), voters will be protected from discriminatory voting laws again.
Virginia’s Voting Rights Act restores many of the protections of the federal VRA by:
- Prohibiting discrimination in election administration.
- Requiring local election officials to get feedback or pre-approval for voting changes.
- Allowing individuals to pursue civil suits against any violations of the Act.
With the Supreme Court weakening the VRA even further in its decision in Brnovich v. DNC earlier this year, finding ways to restore its protections is more vital than ever. In the absence of federal legislation updating the VRA, Virginia’s Act is a model for what other states can do. If other states follow in Virginia’s footsteps, voters will be granted the tools they need to challenge discriminatory voting rules.
A filibuster of the Freedom to Vote Act is a setback, not a defeat.
Make no mistake, the filibuster of the Freedom to Vote Act is a serious setback in protecting the right to vote in our democracy. But there’s still plenty of actions states and individuals can take to protect voting rights, and with federal action unlikely, these state-level efforts are more important than ever. Voters should lobby their state legislatures to enact the changes we’ve laid out, and if that fails, prepare to use the petition process to put them directly onto the ballot in the 26 states that allow it. In the meantime, we need to organize in advance of the 2022 and 2024 elections, so we can win more races and enact the federal voting rights legislation American voters need and deserve.