Five Voting Laws Needed To Protect Democracy
Thanks to a strong showing in 2022, Democrats gained full control over governments in 17 states. This is more so-called “trifectas” — when one party holds both chambers of the state legislature and the governorship — than Democrats have held since 1993. With the addition of Maryland, Massachusetts, Michigan and Minnesota following the 2022 elections, more Americans now live in states entirely controlled by Democrats than by Republicans.
If there is one thing we know from history, it is that power can be fleeting. Just a few years ago, Democrats had full control over Virginia’s government, while now the state has a Republican governor and state House. Republicans who controlled Arizona for years now face a Democratic governor.
As these 17 states begin their new legislative sessions, they will face a myriad of competing priorities for which progressive issues to address first.
My message to state Democratic leaders is simple: Use your power to expand voting rights and protect democracy. Make 2023 the year that every Democratic-controlled state enacts new laws to strengthen free and fair elections and increase voter access. Enact bold new proposals to transform your election systems while also fixing small nagging problems confronting voters.
No problem facing elections and democracy should be considered too big to tackle or too small to be addressed. Do it all and do it now.
In 2020, I wrote about the need to reduce barriers to mail-in voting by reforming outdated signature verification processes, providing free return postage, allowing third-party ballot collection and extending the periods for seeking and returning mail-in ballots. I called these the four pillars to protect voting rights when voting by mail. Stacey Abrams called them the gold standard and they were widely endorsed by Democratic leaders.
Republicans vilified these four pillars because they knew that adopting them would increase voter participation during a pandemic. Likewise, they attacked the other obvious voter safeguards like mandating that counties make drop boxes widely available and repealing laws requiring voters to have their absentee ballots signed by a witness.
Republican opposition should not stop every Democratic-controlled state from providing its citizens with automatic voter registration and at least 24 days of early voting, including on weekends and with extended hours during the week.
Expanding access to registration, early voting and mail-in voting is the bare minimum. They are necessary but not nearly enough to address the threats we will face in 2024. To address those, Democratic legislatures need to be bolder and more aggressive to prevent a new wave of tactics aimed at suppressing the vote and subverting elections.
Here are five new election laws every Democratic state should adopt this legislative session.
1. Ban voter challenges.
There is no reason private citizens or groups should be permitted to question a voter’s eligibility or have them removed from the voting rolls. Laws that permit individuals to challenge the voting eligibility of other citizens are a relic from a bygone era when voter registration lists were hyperlocal and one way to know if someone should be removed was by word of mouth.
Times have changed. States are now required to maintain statewide voter registration databases and conduct routine maintenance to remove ineligible voters. Counties no longer rely on death notices in the local newspaper or members of the community providing information about their neighbors to maintain accurate voter records.
Yet, despite these changed circumstances, laws allowing private voter challenges have gained prominence in recent years as Republicans have encouraged their supporters to challenge the voting rights of people they have never met and do not know.
In Georgia, for example, Republicans used their trifecta to facilitate voter challenges after a Texas-based voter intimidation group challenged the eligibility of over 360,000 Georgians ahead of the 2021 U.S. Senate runoffs. Rather than clamp down on challenges, Georgia expanded the ability of right-wing groups to submit meritless mass challenges through its 2021 voter suppression law. In advance of the 2022 midterm elections, nearly 100,000 Georgians had their right to vote challenged by complete strangers.
The problem of mass challenges is not confined to Georgia. In the run up to the 2022 midterms, a right-wing organization with ties to former President Donald Trump announced plans to challenge voters’ eligibility in nine states. After the election, the group bragged of its successes in several of the targeted states.
Too many states — including some with Democratic trifectas — permit voter challenges. Without legislative action, we should expect these states to be targeted by the same right-wing groups in 2024. That is why every blue state must enact legislation now to prevent private vigilante voter purges. These laws should make explicitly clear that only the state, following state and federal law, may remove a voter from the rolls or otherwise challenge an individual’s right to vote.
2. Prevent long voting lines.
One of the great injustices in our election system is the disproportionate impact long voting lines have on minority communities, young voters and voters with disabilities. One study showed that residents of entirely Black neighborhoods waited 29% longer to vote than their counterparts in entirely white neighborhoods. This disparity held up even within the same counties. Another study showed that “Latino voters waited on average 46 percent longer than white voters, and Black voters waited on average 45 percent longer than white voters.”
Despite these persistent findings, states have done little to address the problem of long voting lines, and blue states are no exception. The effects on democracy are tragic. The communities with the longest lines are also the most likely to have high proportions of low-income and working-class individuals who do not have the flexibility to take time off work or school to wait in line to vote. Even if voters do find the time to wait in those long lines, they are often discouraged from participating in the electoral process in the future.
The solution to this problem is not simple but it is urgent. Every state should enact a policy that no voter should wait more than 30 minutes in line to vote. To do so, states can either choose to allocate more election administration resources specifically to address long lines or increase the number of polling locations throughout a highly trafficked area or county. Along with these bigger reforms, every polling place should be required to track wait times throughout the day and publish them after the election. Counties where voters experience long wait times should be required to seek public input and adopt a remedial plan for the next election.
3. Limit the role of partisan poll watchers.
Laws allowing partisan poll watchers who observe the voting process were once reasonable transparency measures aimed at ensuring public confidence in the fairness of elections. Unfortunately, in recent years these laws have been weaponized by partisan actors to harass and intimidate voters and election officials as well as undermine the administration of elections and cast doubt on the accuracy of results.
While there remains a legitimate place for observing the voting and tabulation process, states should enact new laws to define the narrow role of partisan poll watchers. As a first step, poll watchers should be limited to only watching the general conduct of the election — not speaking to or recording voters or election officials.
To protect voters and election officials, poll watchers should be limited in how close they can be to election workers (no closer than eight feet) and voters (no closer than 10 feet) during the voting and tabulation process. Under no circumstances should they be permitted to observe the marking of ballots or any part of the voting and tabulation processes that might expose how an individual voted.
Finally, the law should require that poll watchers be registered voters from the communities, specifically the counties, which they seek to watch. They should have to be clearly identified as a partisan poll observer with their full name, home precinct identifier and party affiliation visible to the voter.
4. Strengthen the vote counting and election certification process.
If one thing has become clear since 2020, it is that our vote counting and election certification processes need modernization. I have written extensively about how Republicans have sought to exploit the vulnerabilities of our current systems to count and certify election results. The aftermath of the midterm elections did little to assuage my concerns. With the next presidential election less than two years away, states need to revise and harden their post-election processes now.
First, state law should make clear that accurately counting ballots is not only ministerial and non-discretionary, but also an obligation of all election workers. Laws should be changed so that local and state election officials face personal civil and criminal liability for intentionally refusing to accurately count ballots or declare election results. Given the multiple rounds of litigation that ensued after certain counties refused to certify their results in 2022, new laws should spell out expedited judicial remedies available to candidates or parties affected by a failure to certify.
Finally, states need to reform their recount and contest laws. Recounts should be permitted only when a losing candidate requests one and the threshold for a recount should not be higher than 0.5%. Only the top two candidates’ votes should be tabulated in the recount. Contests, which can be filed in court by any individual, should be run after recounts but completed in time for the final certification of the elections to avoid unnecessary delays.
5. Require courts to prioritize protecting voting rights.
Courts play a vital role in our democracy. Too often, however, judges lack the legal tools necessary to protect voters and ensure free and fair elections.
Most fundamentally, states can solve this problem by enacting laws that explicitly affirm that every citizen of legal voting age has the right to vote and a right to have their vote counted. Given the U.S. Supreme Court’s flirtations with the independent state legislature theory, it is not enough that these rights are in state constitutions. They must be enacted into law by legislatures as well.
States must also statutorily define the level of protection afforded to those rights. This may seem like a technical point, but it is critical. In most instances, courts view restrictions on fundamental rights skeptically and uphold them only where necessary. Yet, in the area of voting rights this has often not been the case. Federal courts have adopted a balancing test between the right to vote and a state’s other interests in administering elections. This has severely disadvantaged voters.
States must step in and enact legislation that makes clear that balancing voting rights is not an acceptable standard in state courts. They should emphasize that the same exacting scrutiny standard applicable to other fundamental rights applies to the right to vote.
Legislatures should also make clear that other prudential considerations — like the proximity of litigation to the next election — should not prevent voting rights cases from being heard and decided. On the contrary, legislatures should instruct courts to decide those cases quickly by directing that voting rights cases be given priority over the rest of a court’s docket.
These changes may seem ambitious, but they are just a start. Republicans are ruthless in enacting anti-democratic laws when they have a chance. For democracy to survive, Democrats must show the same urgency in favor of voting rights when they are in charge.