2 years ago
Last month, Texas held its first primary election since the passage of its controversial, restrictive voting law last year. Early reports sounded the alarm that tens of thousands of absentee ballots — 30 percent in the state's most populous counties — were being rejected because of the law’s new strict ID requirements. But the final results were more mixed. At least 18,000 mail-in ballots were rejected — about half the rejection rate that was feared. Even so, 2.9 million Texans ended up voting successfully in the primary — a double digit percentage increase over 2018.
Republicans seized on this. They argue that the experience in Texas and the other 18 states — under both Republican and Democratic control, but mostly Republican — that passed new restrictive voting laws after the 2020 election will prove that turnout is higher when voters are confident that elections are fair. Some Republicans say these laws are needed to address potential voter fraud, arguing that voters have lost confidence in the integrity of our elections. Others don’t believe in widespread fraud but do think Democratic state and local officials changed the voting rules during the pandemic not for the stated reasons of protecting people from Covid-19 but actually to give Democrats a partisan advantage in the election.
Meanwhile, progressives argue that the way to increase voter participation is to make voting easier — and that the spike in turnout in Texas happened in spite of the new restrictive voting law, not because of it. (They note that turnout in the state only increased substantially among Republicans.) Democrats and those on the left are calling this raft of new legislation — 34 laws in 19 states — undemocratic voter suppression and election subversion, designed to keep people of color from getting to the polls and reviving the nation’s dark past of racist voting laws. In January, President Joe Biden described these efforts as “Jim Crow 2.0” and argued that the country needs federal voting rights legislation to protect states from infringing civil rights.
So, just how bad — or good — are these laws? The political reaction to these laws seems to have overshadowed what’s actually in them. Yes, Republicans’ case for rampant voter fraud is nonexistent. But Democrats’ case that any current voting restrictions amount to the type of voter suppression that existed before the Civil Rights movement is also far from accurate. Furthermore, the evidence shows that restrictive (or permissive) voting laws matter less to the outcome than both parties would like to think.
Let’s take a closer look at what some of these laws do. The Brennan Center, a progressive public policy group, has published a full report on these recent voting laws. The report says that Georgia “limit[ed] early voting days or hours.” A survey of states rules will highlight the problem with that characterization. Under its new law, Georgia mandates 17 days of early voting, including at least two Saturdays, and open during “regular business hours,” which the state has defined as from at least 9 a.m.-5 p.m. The Brennan Center didn’t mention Massachusetts, however, which has just 11 days of early voting held during “regular business hours,” which it doesn’t define. Just in 2019, New York’s Democratic Governor Andrew Cuomo signed into law a new voting bill that was intended to make voting easier, and it only required nine days of early voting but also required polls to stay open from 6 a.m.-9 p.m.. The federal voting rights legislation supported by the president only mandates 14 days of early voting but then would require polls to be open for 10 hours on those days.
And so we run into part of the problem, which is trying to take any single election regulation in isolation. Georgia also has automatic voter registration, unlike Minnesota, and a voter doesn’t need a reason to vote by mail, unlike Massachusetts, New York, Connecticut and Delaware. But Georgia also requires that absentee voters include the number from state-issued identification, unlike any of those states.
So is it easier or harder to vote absentee in Georgia than in New York? New York’s extended early voting hours surely makes it easier for someone with a 9-5 job to vote early. But Georgia’s longer period of early voting might be better for contractors or parents shuttling around kids for after school sports.
According to the Brennan Center, four states — Georgia, Texas, Iowa and Kansas — “eliminated or limited sending mail ballot applications to voters who did not request them.” But taking a close look, Georgia required third party groups to tell voters the application wasn’t sent from the government and prohibited them from sending applications to people who already requested one; Texas barred state employees from sending unsolicited applications but allows candidates or political parties to do so; Iowa said the election commissioner couldn’t send unsolicited applications unless it was authorized by the legislature because of a public health emergency but third party groups are still welcome to do so; and Kansas required that the organization sending an unsolicited application put their name and contain a disclaimer that it was not sent by the government. So, none eliminated sending unsolicited applications and the main limitation at issue appears to be that third parties make it clear who the applications are coming from.
In addition, the Brennan Center singled out Florida for prohibiting anyone from mailing ballots to voters who do not specifically request them. But there are only seven states that do currently send ballots to every registered voter — and that’s because those states do all their voting by mail (Colorado, California, Hawaii, Nevada, Utah, Oregon and Washington). So Florida is in line with the vast majority of states — both Democratic and Republican controlled — that don’t.
The Brennan Center also lists eight states that “restrict[ed] assistance in returning a voter’s mail ballot.” This is referred to as ballot harvesting, and, currently, only 14 states allow a person to collect an unrestricted number of absentee ballots. States like Massachusetts, Minnesota and Michigan all have such restrictions. (In fact, restrictions like this are how North Carolina was able to prosecute a Republican congressional campaign operative who tried to commit election fraud in 2018.) The 2005 Carter Baker Commission, chaired by voting access advocate and former Democratic President Jimmy Carter, included restricting ballot collecting only to family members and election officials in its recommendations.
Now, there are other changes made in these states that clearly make it harder to vote. Four states limited the places that a voter can drop off an absentee ballot if they don’t want to put it in the mail. It used to be that if a voter in Iowa submitted their absentee ballot application 120 days before the date officials were allowed to process them, they’d just hold onto the application. Now, if it’s more than 70 days before the window, the application will be returned with a note explaining when it can be resubmitted. Harris County, Texas, rejected hundreds of absentee ballot applications because voters are now required to include the same state identification number that they used to register to vote. Those people will still be able to vote in person, of course, but there’s no question it has made voting less convenient and with little obvious upside.
On balance, however, these 19 states are still very much in line with the majority of states when it comes to voting. Prohibiting drive-through voting or absentee ballot drop boxes that aren’t at a voting facility may be irritating, but those options were also unheard of before 2020.
And even the more serious changes, like stricter voter ID laws that are often decried as targeting Black or low income voters, may not matter as much as either side likes to believe. Multiple academic studies have shown that these and other types of voting restrictions — limiting drop boxes and early voting — “had only minor effects on turnout and no effect at all on the Democratic margin in the presidential election” in 2020. And the effect of requiring absentee voters to provide additional proof of their identities was “pretty close to zero.” And on the other side, another study showed that “expansions of absentee voting in some states in last year’s election didn’t alter turnout.”
Taken together, these studies show that restrictions and expansions of voting laws don’t have much, if any, effect on turnout compared to the perceived importance of the election. And, of course, if these laws have no effect on turnout that also means there’s no discernible amount of fraud taking place either.
But perhaps most importantly, these studies and the experience of states that have implemented universal mail in ballots like ruby-red Utah show that both sides misjudge their voters. Republicans have convinced themselves that they have the advantage with “come hell or high water” voters — habitual voters who show up for every election in person and on Election Day, no matter the obstacles. So restrictions will act in their favor. Democrats, on the other hand, believe their voters are more “fair weather” voters who vote sporadically or not at all, and so every additional opportunity — more early voting days, ballot applications that automatically come to their doors, drive through voting — will help Democrats turn out these voters.
And yet, it’s clear that higher turnout doesn’t always favor Democrats, and plenty of Republican voters enjoy modern voting conveniences like early voting.
There is, however, another aspect to these new voting laws besides the mechanics of voting. Many have accused Republicans in state legislatures of also trying to change the way votes are counted or elections are certified. If true, those changes would be far more pernicious to our system of self-government than anything related to drop boxes and drive-throughs. But while many scary bills have been proposed (although it should be said that even proposed bills to end democracy aren’t OK), only a few bills have actually passed into law.
Laws passed in Texas, Florida and Georgia give more access to partisan poll watchers. Partisan poll watchers in those states continue to be able to challenge ballots or voter eligibility, but they still have no role in handling or counting ballots like election workers do.
Arkansas, though, passed a law that allows a committee of state legislators to report local election officials to the bipartisan State Board of Elections, which could then vote to remove them. The law gave some of the powers of the elected county clerks to county boards of election commissioners, in which the county committee’s majority party appoints two members and the minority party appoints one. Given the number of people involved at every level of these new rules, it’s not yet clear whether this law makes it any easier for partisans to reject votes or change election outcomes.
Georgia’s law removed the secretary of state from chairing the State Election Board and allows the legislature to appoint the chair. But it also says that the chair must be “nonpartisan” and “cannot have been a candidate for public office or have made any political campaign contributions” in the previous two years. It also allows the State Election Board to suspend county election officials — but only if they can prove “a minimum of three clear violations of State Election Board rules, or ‘demonstrated nonfeasance, malfeasance, or gross negligence in the administration of the elections’ in two consecutive elections.”
These laws do make changes to who is counting votes — and that always comes with some risk for abuse by partisan actors. But the route either state provides for partisans to change the outcome of an election — even in theory — is far from clear and would certainly result in lawsuits that would be overseen in most cases by the same federal judges that rejected all of former President Donald Trump’s attempts to call the 2020 election results into question.
Biden’s proposed fixes to all of these laws is to set a national standard for voting across all 50 states. It would include no excuse absentee voting, two weeks of early voting and expanded access for voters with disabilities — things that many of the 19 states that he mentioned in his speech already have or exceed. Which can make this entire debate feel like much ado about nothing.
There are probably many in both parties who think that voting laws can make all the difference in who wins an election. But look at what happened in 2020. States like Wisconsin, Michigan, Pennsylvania and Georgia changed at least some of their voting rules to expand the vote in the run up to the election. With these new rules in place, almost every Republican candidate in those states overperformed expectations — except one: Donald Trump. In the Georgia Senate race, for example, Republican David Perdue won 88,000 more votes than the Democrat, yet Trump lost by 12,000 votes. As it turned out, 28,000 Georgia voters submitted a ballot with their picks for senator but skipped voting for president altogether. The problem, it would seem, was Trump and not the rules.
Democrats will likely find the same: While talking about voter suppression may be a useful rhetorical strategy to increase voter turnout, the reality doesn’t match the rhetoric and the candidates they run will matter more than the rules.
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