At least for some Americans, it could be harder to vote in next year’s presidential election than in any for several decades. And yet, there are genuine reasons for new-found optimism about the state of U.S. voting rights.
If that sounds hard to square, consider that perhaps for the first time this century, there’s now unquestionably more energy behind efforts to make voting easier than to make it harder. Continuing a trend that began after the 2012 election, numerous mostly blue states — with an important nudge from Hillary Clinton — have introduced, and sometimes passed, a slew of expansive bills, including one idea that could transform access to the ballot. Meanwhile, the march of major new GOP-backed restrictions that characterized the period from 2011 to 2014 essentially came to a halt.
But voting rights advocates are a long way from celebrating. Nothing happened to undo existing restrictions, and the worst of them remain in place. And as 2016 approaches, the Roberts Court, with its conservative majority, looks likely to play the lead role in shaping the voting landscape going forward.
Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice, summed up the best-of-times, worst-of-times atmosphere.
“We’ve seen increasing momentum toward improving the voting system, and in particular voter registration, across the country over the last couple years,” said Weiser. “Unfortunately, that doesn’t get us out of the water. We’re still facing the unsettling prospect of an election with new restrictions across the country and a weakened Voting Rights Act.”
First, the bad news: The 50th anniversary of the Voting Rights Act (VRA) — and “Selma,” a high-profile movie about the legendary activists who pushed for it — put a national spotlight on the importance of the landmark civil rights law. But though some Congressional Republicans were eager to be photographed marking the occasion in Selma, Alabama, they were far less interested in taking action to restore the VRA to full strength, after it was gutted by the Supreme Court in Shelby County v. Holder in 2013. Neither of two bills introduced this year to bolster the law — one a holdover from last year — received so much as a hearing.
“To this point, we have not seen a process forward that is necessary,” Rep. Bob Goodlatte, the chair of the House Judiciary Committee, said in January.
That means southern states and local governments will continue to have free rein to make changes to their voting rules without federal oversight. Only via lawsuits filed after the fact — a tactic that’s often too costly and time-consuming to be effective — can changes deemed racially discriminatory be stopped.
Meanwhile, Republican officials in several states maneuvered to impose strict rules that are likely to throw up more hurdles for would-be voters. In Kansas, Secretary of State Kris Kobach (R) announced plans to toss out 36,000 pending voter registration applications. Most run afoul of a 2013 law backed by Kobach that requires people to show proof-of-citizenship documents when registering to vote. In Ohio, Secretary of State Jon Husted (R), removed hundreds of thousands of voters from the rolls — a majority of whom were singled out because they hadn’t voted in recent elections. And in Alabama, Republican state officials drew nationwide attention for a plan to close several DMV offices in predominantly black counties — a move that, critics said, could make it much harder for blacks to get the ID needed to vote under the state’s photo ID requirement. The Kansas and Alabama schemes have drawn lawsuits, and voting rights groups this week threatened a lawsuit in Ohio, too.
But Kobach, Husted and company were sailing against the wind. Prompted by record low turnout in the 2014 midterms, states proposed a flurry of bills aimed at making voting easier and more accessible. According to a tally by the Brennan Center, at least 464 expansive state-level voting bills were introduced or carried over between the start of the year and mid-May, compared to 113 restrictive bills. No tally exists for the rest of the year, but there’s no reason to think the ratio changed much.
Many of the expansive bills focused on simplifying the registration process. Oregon and California each passed automatic voter registration laws, which will allow for anyone who comes into contact with the DMV to be registered. Sixteen other states, and the District of Columbia, as well as both houses of the U.S. Congress, introduced similar bills. (New Jersey’s passed, but was vetoed by Gov. Chris Christie, who’s running for the GOP presidential nomination.) Many acted after Hillary Clinton endorsed the idea as part of a far-reaching and expansive voting rights vision during a speech in Houston in May.
The California measure alone could add millions of new voters to the rolls. And by asserting that registration of eligible voters is the state’s responsibility, not the individual’s, the new laws could help set in motion a far-reaching paradigm shift. Weiser calls the idea a “new frontier.”
Other efforts to expand access moved forward, too. Virginia and Kentucky both took steps to make it easier for ex-felons to regain their voting rights, though Kentucky Gov. Matt Bevin, a Republican, reversed course after taking office this month. (In Maryland, Republican Gov. Larry Hogan vetoed a bill that would have restored the right to vote for some citizens with felony convictions after they leave prison – meaning around 40,000 people in the state will continue to be disenfranchised long after they’ve left rejoined their communities*.) Pennsylvania and Florida were among the states to implement online voter registration, which emerged as a rare reform with at least some Republican backing. Other states expanded early voting. Both ideas were key recommendations released in 2014 by a bipartisan presidential commission on voting.
As important as what happened was what didn’t. When the year began, several Republican-controlled states, including Nevada, New Mexico, Nebraska, Missouri, and Iowa looked like they could be next to impose voter ID. Ultimately, all those efforts failed amid staunch opposition from Democrats. No new ID laws were enacted, though North Dakota tightened its existing law. Bolstering the notion that pushing for voter ID is no longer a surefire political winner for Republicans, the idea has largely been absent from the GOP presidential race. And the two presidential candidates who signed ID laws as governor, Rick Perry of Texas and Scott Walker of Wisconsin, were the first to drop out of the race.
One reason for the holding pattern in the states was uncertainty about the status of the law. The Supreme Court declined to intervene in a challenge to Wisconsin’s strict ID measure — meaning the law remains in effect — and lawsuits against Texas’ ID measure and North Carolina’s omnibus voter suppression law are still working their way through the lower courts. But there’s a good chance that the high court will use either of those two cases, or perhaps a different one, to issue a broad ruling that provides some clarity on when voting restrictions like voter ID violate the bans on racial discrimination in the Voting Rights Act and the Constitution. If that happens under the court’s current makeup — that is, the same court responsible for Shelby — the result could well be a green light for efforts to restrict voting further.
In fact, the justices could be poised to attack voting rights from a whole new angle. As the year wound down, the court heard a conservative-driven case, Evenwel v. Abbott, in which the plaintiffs argue that people who can’t vote have no right to representation at all. They want states to be required to draw district lines by counting only eligible voters, not all people, as they’ve long done. That would boost the power of predominantly white rural areas with a high share of eligible voters at the expense of minority-heavy urban areas with lots of non-citizens and children.
In other words, a new frontier beckons for expanding access to the ballot — even as threats to voting, old and new, still lurk.
* This sentence has been edited from an earlier version to clarify the effect of Maryland’s bill.