Voting Rights Battles Move to States After Supreme Court Ruling

A Supreme Court decision weakening protections for ballot access under the Voting Rights Act is likely to result in a series of heated state-by-state fights over how elections are conducted.

The 6-3 ruling from the court’s conservative majority comes as Republican opposition in the Senate has blocked two Democratic proposals that would set national standards on voting and re-empower federal review of restrictions.

That means most of the coming action on voting rights will play out in legislatures, state courts and even corporate boardrooms, as executives become increasingly outspoken against proposed restrictions. In some states, the battles may move to the polling place itself, as advocates put ballot measures before voters.

Already this year, Republican state lawmakers have passed dozens of new restrictions, shortening deadlines, adding voter identification requirements and making it harder to vote by mail, even as their Democratic counterparts have moved to automatically register voters, expand voting by mail and allow felons to vote after they leave prison.

Voting rights advocates describe something like a game of Whac-A-Mole, where new restrictions will pop up unexpectedly as they counter with lawsuits and voter outreach.

“I think we’re going to see a pitched battle at the state level,” said Stephen Spaulding, senior counsel for policy at Common Cause, a public-interest advocacy group. “This sends a signal and emboldens those who would like to make it harder to vote.”

While the Supreme Court ruling limits the Justice Department’s ability to sue states, Democratic-aligned lawyer Marc Elias said it won’t affect his lawsuits seeking to overturn different restrictions in 14 states.

“It is important to remember that most voter suppression laws are challenged under First, 14th and 15th Amendments to the Constitution,” he said in a statement. “Today’s decision does not affect any constitutional claims.”

The Supreme Court upheld two Arizona laws that limit ballot collection and throw out ballots cast in the wrong precinct which were challenged under the 1963 Voting Rights Act.

Some advocates said the Supreme Court decision should spur Democrats in Congress to renew their efforts to pass the For the People Act, which sets minimum standards for states on things like early voting, and the John Lewis Act, which would restore federal pre-clearance of voting changes in certain states. Both appear to have stalled amid Republican opposition in the Senate.

“All is not lost,” said Nse Ufot, chief executive officer of the New Georgia Project, which is fighting a state law that added new restrictions to voting in Georgia. “There is an expectation that Congress step up in this moment to protect American democracy.”

In most states, the window to pass new restrictions on voting before the 2022 midterms has already closed, as this year’s legislative sessions wound down in June and lawmakers generally avoid making changes in an election year.

One exception is Texas, where Republican Governor Greg Abbott is calling a special session to consider a package of restrictions after Democrats torpedoed it with a strategic walkout on the last day of the regular session.

Legal experts say opponents may turn more to state courts, too.

That’s because every state except for Arizona has an explicit right to vote in its constitution – something the U.S. Constitution only alludes to – and decisions based entirely on state constitutional law are generally not subject to review by the U.S. Supreme Court.

For Cesar Ybarra, senior director of legislative affairs at the conservative FreedomWorks advocacy group, that’s exactly where the fight should be.

Role for Corporations?

He argued that the federal government should play a much more limited role in overseeing elections than it has in the past, allowing states to experiment with different laws on voting.

“All elections measures should be done at the state level,” he said.

Some voting rights groups have also turned to corporations, asking them to speak out against restrictive voting laws, lobby against them and even end or suspend donations to lawmakers who support them.

Daniella Ballou-Aares, co-founder of the Leadership Now Project, which is pushing business leaders to embrace voting rights, said that many lawmakers rely heavily on donations from corporate political action committees, which makes this kind of advocacy much more effective.

Voting rights advocates have also found success in some states going directly to the voters.

In Michigan, voters approved a constitutional amendment that allowed automatic voter registration, Election Day voter registration and no-excuse vote by mail, among other reforms, by 67% in 2018.

That same year, a constitutional amendment in Florida that restored the rights of convicted felons to vote after leaving prison passed by 65%. But Governor Ron DeSantis, a Republican, signed a bill that required former inmates to pay off any fines or fees as well, which substantially undercut the reform.

“These ballot initiatives have been almost entirely successful,” said Sean Morales-Doyle, acting director of voting rights and elections at the Brennan Center for Justice.

If everything else fails, voting experts say that many of the restrictions can be overcome by outreach.

Michael E. Shepherd, a post-doctoral fellow at Vanderbilt University who has studied voting, said that the Supreme Court’s decision might lead to more local elections officials moving polling places in an effort to gain a partisan advantage.

But he wasn’t sure that ultimately would have much of an effect.

In a study he co-authored of North Carolina elections, published last month, changing polling places led to a 1 to 2% drop in turnout on Election Day, but that was almost entirely offset by more voters choosing to cast a ballot early.

Shepherd said that similar attempts to suppress certain groups of voters by changing the rules often don’t succeed because advocacy groups and campaigns work to educate voters about how to get around them, but that has a cost.

“People are having to spend countless hours of time on a fundamental right that should be undeniable, rather than spending time on fixing other problems in society,” he said.

©2021 Bloomberg L.P.

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