[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.]
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DEMOCRATS HOLD POWER IN 17 STATES. USE THE POWER TO PROTECT VOTING
RIGHTS.  
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Marc Elias
February 8, 2023
Democracy Docket
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_ 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. _

Let Us Vote, vic hinterlang shutterstock.com

 

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
[[link removed]]. 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
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the need to reduce barriers to mail-in voting by reforming outdated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
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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
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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
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challenge voters’ eligibility in nine states. After the election,
the group bragged [[link removed]] 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
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voting lines have on minority communities, young voters and voters
with disabilities. One study
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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
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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
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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
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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.

For democracy to survive, Democrats must show the same urgency in
favor of voting rights when they are in charge. 

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 [[link removed]], 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.

* voter supression
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* voting rights
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* state governments
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