02/24/2023

Tomorrow, Virginia will adjourn its legislative session, the first state to do so in 2023. Virginia is one of only two states in the country with divided legislatures, and the contrasting bills that passed the Virginia House of Delegates and Virginia Senate reveal the different priorities for the Democratic and Republican Parties in voting and election policy. A few compromises, including a bill to repeal the witness requirement for absentee voting, managed to make it through both chambers.

As legislative sessions are in full swing, we highlight a few of the major trends we’ve noticed so far. We are keeping an especially close eye on states moving legislation quickly. Here are all the states that will adjourn their sessions by the end of March: Arkansas, Georgia, Idaho, Kentucky, New Mexico, South Dakota, Utah, West Virginia and Wyoming.

Election Day in Virginia and Wisconsin

On Tuesday, voters went to the polls in Virginia and Wisconsin for Election Day.

• In Virginia, state Sen. Jennifer McClellan (D) won a special election for Virginia’s 4th Congressional District. McClellan earned nearly 75% of the vote to defeat her Republican opponent and secure the seat of late Rep. Don McEachin (D-Va.), who died in November after a battle with cancer.

McClellan will be the first Black woman to represent Virginia in Congress. During Virginia’s two-year period with a Democratic trifecta in 2020 and 2021, she led the introduction of the Voting Rights Act of Virginia, a state-level bill modeled after the federal Voting Rights Act that added important protections for voters.

In Wisconsin, Judge Janet Protasiewicz, a liberal, and former state Supreme Court Justice Daniel Kelly, a conservative, advanced out of a nonpartisan primary election for a seat on the Wisconsin Supreme Court and will face off in the general election on Tuesday, April 4. Control of the Wisconsin Supreme Court is on the line, and in a hugely important swing state like Wisconsin, everything from gerrymandering to abortion access may cross its docket. 

• Protasiewicz is a former prosecutor who has served as Milwaukee County Circuit judge for nearly a decade. She has been endorsed by Emily’s List and two current justices on the court. Daniel Kelly is vying to regain a seat on the state Supreme Court, which he held from 2016 to 2020. In 2016, Kelly was appointed by then-Gov. Scott Walker (R), but lost his re-election bid in 2020. Kelly boasts endorsements from sheriffs, law enforcement and Wisconsin anti-abortion groups.

• Kelly, endorsed previously by former President Donald Trump, was involved in conversations about a potential fake electors scheme in Wisconsin to install Trump as president despite his loss in 2020. Bolts also reported that Kelly has criticized the U.S. Supreme Court’s ruling to legalize same-sex marriage, equivocated affirmative action with slavery and made other radical comments over the years.

Minnesota Moves To Restore Voting Rights After Felony Conviction, Emblematic of a 2023 Trend

This week, the Minnesota Legislature sent a bill to the governor that would restore voting rights to individuals with past felony convictions immediately upon release from incarceration. Once enacted, over 50,000 Minnesotans will regain voting rights, making this the first — but hopefully not the last — rights restoration bill adopted in 2023. 

As of Feb. 20, at least 68 rights restoration bills have been introduced in 19 states:

• There are 20 bills in 10 states that would end felony disenfranchisement altogether, aligning policy with Maine, Vermont and Washington, D.C. 

• There are 22 bills in seven states, including the successful bill in Minnesota, that would restore voting rights immediately after incarceration. 

• There are 16 bills in three states that would restore voting rights after individuals complete their sentences, including post-incarceration release. These proposals are in Arizona, Kentucky and Mississippi, three states with the strictest policies.

• There are 10 bills in five states that would make other improvements, such as eliminating a requirement to pay all legal fees and fines prior to restoration (Tennessee House Bill 687 and Senate Bill 730) or removing a two-year waiting period after the end of one’s sentence (Nebraska Legislature Bill 20).

Minnesota has already succeeded this session, the result of years of advocacy by community groups. New Mexico is another state where reforms are likely to prevail. This week, the state House passed the New Mexico Voting Rights Act which, among many other provisions, would restore the right to vote for individuals who are no longer incarcerated for felony convictions. 

But, the high volume of introduced bills across the country doesn’t necessarily translate to legislation moving forward and getting enacted elsewhere. In Mississippi, 13 bills introduced in January 2023 would have made a meaningful difference in a state that has one of the most restrictive felony disenfranchisement laws in the country, yet all 13 failed in committee. 

“I really see this as the tale of two trends,” Christopher Uggen, professor in Sociology, Law and Public Affairs at the University of Minnesota, told Democracy Docket. “On the one hand, more states have extended voting rights to include people convicted of felonies, reenfranchising approximately 1.5 million people since 2016. On the other hand, over 4.6 million people remain disenfranchised in the United States — or about the same number that we estimated in 2000.”

Goodbye Federal VRA, Hello State VRAs

This week, we celebrated what would have been the 83rd birthday of the late civil rights leader Rep. John Lewis (D-Ga.). While Congress was unable to pass federal legislation named in his honor, states are looking to further his legacy through state-level voting rights protections.

The U.S. Supreme Court has steadily weakened the Voting Rights Act of 1965 (VRA) over the past decade. Yet, since 2013, state-level VRAs have been enacted in New York, Oregon, Virginia and Washington (California has had a state-level law in effect since 2002). 

In 2023, Maryland, Michigan and New Jersey are looking to join that growing list. This month, Maryland Democrats introduced the “Voting Rights Act of 2023 – Counties and Municipalities,” the central tenet of which would mirror the now-defunct Section 5 of the federal VRA by requiring that jurisdictions with histories of voting discrimination receive “preclearance” from the Maryland attorney general’s Civil Rights Division before enacting election law changes, including redistricting. There are additional legal protections within the bill. 

• Michigan Secretary of State Jocelyn Benson (D) recently announced that she intends to work alongside election clerks and legislators to draft a Michigan Voting Rights Act, building on protections passed by voters during the 2022 midterm elections.

• Last fall, New Jersey lawmakers introduced the John R. Lewis Voting Rights Act of New Jersey, which would give the state’s civil rights division more oversight, expand the authority of state courts and create a preclearance scheme. Legislators are renewing their push for the passage of this bill this session.

What’s on the Red State Election Agenda?

In contrast to the potential progress in Maryland, Michigan and New Jersey, here’s a sample of voting bills that have passed at least one chamber of Republican-controlled legislatures within the past week:

• An Arkansas bill that would ban drop boxes in the state.

• An Arizona bill that would require the secretary of state to recuse themself from overseeing elections in which they are a candidate.

• An Idaho bill that would remove student ID cards from the list of acceptable identification to vote, while continuing to accept concealed carry permits and more.

• An Indiana bill that would require voters to provide identification information on applications for mail-in ballots.

• A Kansas bill that would require all mail-in ballots to arrive by 7 p.m. on Election Day. Currently, ballots that are postmarked by Election Day and arrive three days after are counted. Another bill would ban drop boxes. Gov. Laura Kelly (D) could veto either measure should they reach her desk. While Republicans have the potential to override her vetoes, they have struggled to do so in the past.

• A Montana bill that would ban state, county or local officials from accepting private donations to fund election administration, an often necessary resource for chronically underfunded offices. 

U.S. Supreme Court Declines To Hear Three Democracy Cases

On Tuesday morning, the U.S. Supreme Court released an orders list announcing which cases it will or will not hear, with orders coming down in three of the five election cases we are tracking:

• Buck v. Reeves: The Court dismissed a case arguing that Mississippi's congressional map is racially gerrymandered and that the state should still be subjected to preclearance requirements under the Voting Rights Act.

• Cox v. Maryland State Board of Elections: The Court declined to review a petition from failed Maryland gubernatorial Dan Cox (R) arguing that Maryland courts usurped the Legislature’s power when they allowed officials to begin counting mail-in ballots earlier than state law permitted. In bringing his claim, Cox invoked the independent state legislature (ISL) theory that’s before the Court in a different case, Moore v. Harper.

• Richardson v. Flores: The Court declined to review a 5th U.S. Circuit Court of Appeals ruling that the Texas secretary of state is immune from a challenge to the state’s mail-in ballot signature matching process. While the secretary is no longer involved in this lawsuit, litigation will continue against other Texas officials. 

We are still waiting for the Court to decide whether to hear two other democracy cases: one dealing with ISL theory claims and Ohio redistricting and another over Mississippi’s felony disenfranchisement law.

Additionally, the Court received another voting case for potential review. Yesterday, two voting rights groups asked the Supreme Court to review a lawsuit challenging a Texas law that makes it harder to register to vote, Senate Bill 1111. In yesterday’s petition, the pro-voting groups do not ask the Supreme Court to consider the merits of the law; rather, they ask the Court to review a decision by the 5th Circuit that the voter registration organizations behind the lawsuit lacked standing, meaning the ability to bring a lawsuit in court.

More News

• Don’t forget, on March 14 and 15, the North Carolina Supreme Court will hold its unprecedented rehearings for two previously decided voting cases. You can read our recap of the opening briefs submitted by the Republican legislators who sought this partisan power grab through the courts for the photo ID law to vote case and partisan gerrymandering case.

• New reporting from The Washington Post shows that former Arizona Attorney General Mark Brnovich (R) concealed records debunking election fraud claims and used his office to further claims about voting in Maricopa County that his own staff considered inaccurate.

OPINION: The Future of Redistricting Rests on These Two U.S. Supreme Court Cases

By Nick Seabrook, professor of Political Science and Public Administration at the University of North Florida. Read more ➡️

What We're Doing

We’ve been emphasizing the fact that redistricting after the 2020 census is far from over. To re-engage in the work ahead, join All On The Line for a Redistricting 101 presentation on Monday, Feb. 27 at 8 p.m. EST.

We’re reading Votebeat Pennsylvania’s visual investigation into the unequal election policies adopted by each county in the Keystone State and how it’s translated into an uneven landscape for voters.

Restore the Vote Minnesota, a coalition of organizations and individuals who have organized for years to expand democracy to all community members, achieved a big legislative win this week. However, because felony disenfranchisement laws are very state specific, the work is often decentralized. To plug into the ongoing work in your state, here are a sample of coalitions advocating in: California, Connecticut, Florida, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, New Mexico, North Carolina and Oregon.

A new episode of Defending Democracy drops every Friday at 6 a.m. EST. Listen to today’s new episode, “Mississippi’s Ongoing Efforts to Disenfranchise Black Voters Feat. Arekia Bennett-Scott,” wherever you get your podcasts.

We depend on the support of our readers to keep bringing you the latest on the fight for democracy. You can support our work here to keep our content free and available for all. You can update your email preferences here. Email is the best way to keep in touch, but you may unsubscribe.

Democracy Docket
PO Box 733
Great Falls, VA 22066
United States