Lawsuits challenging state voting restrictions could alter rules for 2022 midterms, 2024 presidential election

·15 min read
Jennifer Fresques takes a selfie before inserting her ballot into an official ballot drop box Tuesday, Oct. 20, 2020, in Salt Lake City.
Jennifer Fresques takes a selfie before inserting her ballot into an official ballot drop box Tuesday, Oct. 20, 2020, in Salt Lake City.

WASHINGTON – In Panama City, Florida, the League of Women Voters set up a face-painting table for children during community gatherings at the library. While the children were occupied, former chapter president Cecile Scoon said volunteers could chat up parents about registering to vote or voting by mail.

Then on early voting days in the fall, Scoon said the group would find a shady tree near the Glenwood Community Center polling place, to answer voters’ questions over grilled hamburgers and hot dogs. On a good day, there might be shrimp. Voters who couldn't break away from work could use Bay County's 24-hour drop box for receiving absentee ballots.

Such get-out-the-vote efforts are under threat by a new state law adopted after the 2020 election. Scoon, the League of Women Voters and other groups are challenging the law in federal court, arguing the measures make it harder to vote, especially for people of color.

They're part of an assembly of people across the U.S. challenging a wave of restrictive voting laws enacted this year in more than a dozen GOP-led states. The outcome of their cases could have major ramifications for the 2022 midterm and 2024 presidential elections.

The Florida law Scoon is fighting requires election officials to monitor the drop box, so officials moved it inside and it's available only during voting hours. It also prohibits “engaging in any activity with the intent to influence” a voter within 150 feet of a polling location. Voting-rights advocates worry the restriction means no more handing out food and water to people in line, although state officials say the language is ambiguous and wouldn’t necessarily prohibit that.

But perhaps most frustrating, the law requires Scoon to warn voters, as she encourages them to fill out an application for an absentee ballot, that the paperwork might not be delivered in time to vote.

“I would say it’s absolutely devastating,” said Scoon, a former Air Force prosecutor who is now the league's state president. “You’re having a lengthy conversation. You’re learning a lot about the family. You’re building rapport. If we have to say to those same people, ‘We might not turn it in,’ that’s going to go backwards.”

Florida is one of 18 states that adopted 30 laws since Jan. 1 making it harder to vote, according to the Brennan Center for Justice at New York University. More than 400 bills were introduced in 49 states and some are still being debated.

Emily Seibert puts her ballot into a drop box on Oct. 20, 2020, in Salt Lake City.
Emily Seibert puts her ballot into a drop box on Oct. 20, 2020, in Salt Lake City.

Lawsuits have been filed in state and federal courts in at least eight states where legislatures changed voting laws since the 2020 election. Republicans control each of the legislatures and only one of the governors is a Democrat: Kansas Gov. Laura Kelly.

The lawsuits will help set the rules for future elections. The cases argue against restricting absentee balloting, shortening early voting, reducing voting locations, stiffening requirements for identification and removing voters from the registration lists more frequently.

“There’s just a series of really bad things happening," said Celina Stewart, chief counsel at the League of Women Voters. “So many of the laws really target limiting those types of expansions that were really productive and helpful in turning out so many more voters."

More: ‘So what’s next?’: After voting rights loss, Democrats and allies seek alternatives

Lawmakers and state election officials argued the laws are necessary to prevent fraud and preserve election security. Georgia Attorney General Christopher Carr accused a Justice Department lawsuit against his state's law of being political for attacking provisions that are common in states governed by Democrats.

“This action by the U.S. Department of Justice is a politicized intrusion into the State of Georgia’s constitutional authority to regulate the ‘time, place and manner’ of its elections,” Carr said in his formal legal reply to the lawsuit.

But voting-rights advocates contend the changes are in some cases discriminatory, and that they could sow confusion and suppress the vote.

“It’s a little bit of a game of whack-a-mole as states pass new laws,” said Adav Noti, chief of staff at the Campaign Legal Center and a former associate general counsel at the Federal Election Commission. "We saw a slew of really troubling actions in selective states across the country in 2021 to limit voters' freedoms."

Democrats, Republicans battling over state, federal election rules

The battle playing out in Congress, state legislatures and federal and state courts is over who will set election rules for the 2022 congressional elections and 2024 presidential contest.

Texas House Democrats demonstrated the ferocity of the debate over voting laws when they fled the state July 12 to prevent a quorum for the legislature to approve restrictions there.

States have been introducing and adopting more voting-rights laws after a landmark 2013 Supreme Court decision called Shelby County v. Holder ended a requirement that the Justice Department review changes in election laws for some states under the Voting Rights Act.

A Supreme Court decision in July called Brnovich v. Democratic National Committee, which upheld two Arizona voting laws, made it tougher to challenge restrictions on voting.

Rather than wait for the results of lawsuits, Congress could adopt a baseline of rules that states must follow. But the debate will be contentious between Democrats promoting federal rules and Republicans arguing rules should be set by states.

The House approved voting legislation in March and will take up another bill Monday named for the late Rep. John Lewis, D-Ga., a civil-rights icon. The Lewis bill, a response to the Supreme Court decisions, aims to restore Justice Department review of state changes in election law and create new tests for challenging election laws.

More: Secret meetings and phone trees: The story behind Texas Democrats' exodus from Austin

The Senate is set to begin its debate in September. Senate Majority Leader Chuck Schumer, D-N.Y., argued that federal legislation was necessary because state voting restrictions sought to blunt the power of minorities who turned out in greater numbers through absentee voting during the pandemic.

“In America today, we are witnessing the most sweeping and coordinated attacks on voting rights since the era of Jim Crow,” Schumer said. “We're going to fight to protect the sacred right to vote.”

But Senate Minority Leader Mitch McConnell, R-Ky., predicted not a single Republican would support the move, which he characterized as a partisan effort to set election laws at the federal rather than the state level.

“Think of this as exactly what it is, a partisan effort by the majority to take over at the federal level all of American elections,” McConnell said. “The rationale for doing it has basically changed each year, but the core desire they have is to federalize all elections to try and achieve a benefit for the Democrats at the expense of the Republicans.”

Senate Majority Leader Chuck Schumer, D-N.Y., joined by Rep. Chris Turner, left, chairman of the Texas House Democratic Caucus, meets with Democratic members of the Texas Legislature who are trying to kill a Republican bill in Austin that would make it harder to vote in the Lone Star State. (AP Photo/J. Scott Applewhite)
Senate Majority Leader Chuck Schumer, D-N.Y., joined by Rep. Chris Turner, left, chairman of the Texas House Democratic Caucus, meets with Democratic members of the Texas Legislature who are trying to kill a Republican bill in Austin that would make it harder to vote in the Lone Star State. (AP Photo/J. Scott Applewhite)

Voter turnout grew in 2020, Democrats benefited from absentee voting

The lawsuits focus on changes in absentee voting, which boosted turnout in 2020 – and revealed a partisan divide between who voted early and who voted on Election Day.

Absentee voting increased dramatically during the pandemic, and the early voting tended to favor Democrats while Election Day voting favored Republicans, according to the Survey on the Performance of American Elections from the Massachusetts Institute of Technology’s Election and Data Science Lab.

The survey found 46% of voting was by mail last year, up from 16% in 2008. The survey also found Election Day voting dropped to 28% from 69% during the same period. Another 26% of voters cast early, in-person ballots last year.

The gap in partisan results between absentee and Election Day voting was negligible in 2016, according to a review by fivethirtyeight.com, a news site covering politics.

Absentee voting climbed dramatically in Florida, Georgia and Iowa, where legislatures each adopted comprehensive voting laws this year.

Florida had 11 million voters last year, with the 77% turnout representing the highest in 30 years. Nearly 5 million people, including Trump, voted by mail, a record for the state. The share of voters mailing ballots grew to 44% last year from 26.8% in 2016. Democrats cast 680,000 more votes by mail than Republicans in 2020 – nearly 2.2 million compared to 1.5 million, according to the state division of elections.

Iowa's 1.7 million voters represented 76% turnout, which broke all previous records, according to a lawsuit from the League of Latin American Citizens of Iowa (LULAC). Absentee voting grew to 63% of ballots last year from 21.2% in 2000, according to the lawsuit.

In Georgia, absentee voting spiked to 29% of Black voters in November and nearly 28% in the January runoff, rates nearly 6 points higher than for white Georgians. The runoff elected two Democratic senators – Jon Ossoff and Raphael Warnock, who is Black – for the first time in nearly 25 years. The shift came after the Black share of the state population grew to nearly 32% last year from 26.8% in 1990.

More: 'There is a solution': Senate Democrats hold rare field hearing in Georgia over voting rights

The Justice Department had reviewed changes in Georgia election laws for decades because of its history of racial discrimination, from the 1965 Voting Rights Act until the 2013 Supreme Court decision. From 1968 to 2013, the attorney general objected to 177 submissions for proposed changes.

Without the review power, the department filed a lawsuit in federal court challenging Georgia's latest changes as discriminatory.

“In enacting SB 202, the Georgia General Assembly intended to deny or abridge the right of Black Georgians to vote on account of race or color,” the lawsuit said.

Carr and Georgia Secretary of State Brad Raffensperger called the case political and unjustified. They argued the goal of the law – called Senate Bill 202 – was to make it “easy to vote and hard to cheat.”

Despite being labeled “discriminatory” and “racist,” similar laws are in place in Delaware, Maryland, New York, New Jersey, Rhode Island and Wisconsin.

The Georgia law shortened the window to apply for a mail ballot, prohibited sending a mail ballot application unless a voter requests one, reduced drop boxes, limited early voting hours and banned distribution of "food and drink" to voters waiting in line.

“Georgia’s election laws, as recently amended by SB 202, are reasonable, non-discriminatory and well within the mainstream of election laws across the country," Carr said in his legal filing.

A group of 57 Republican House members urged the court to dismiss the case, to allow Georgia "to ensure that its elections are free from fraud and intimidation."

"Additionally, the resolution of this case will likely impact similar pending, and future, lawsuits around the country," said the filing from the American Center for Law and Justice, whose chief counsel is Jay Sekulow, who represented Trump during his first impeachment.

Rep. Barry Fleming, Chairman of the Special Committee on Election Integrity, speaks in defense of SB 202 during a debate in the House Chambers in the legislative session at the Georgia State Capitol Building in Atlanta, Thursday, March 25, 2021. The Georgia state House has passed legislation brought by Republicans that could lead to a sweeping overhaul of state election law. Proposed changes include provisions adding new requirements and restrictions on absentee voting and giving the GOP-led legislature greater control over the administration of elections. (Alyssa Pointer/Atlanta Journal-Constitution via AP)
Rep. Barry Fleming, Chairman of the Special Committee on Election Integrity, speaks in defense of SB 202 during a debate in the House Chambers in the legislative session at the Georgia State Capitol Building in Atlanta, Thursday, March 25, 2021. The Georgia state House has passed legislation brought by Republicans that could lead to a sweeping overhaul of state election law. Proposed changes include provisions adding new requirements and restrictions on absentee voting and giving the GOP-led legislature greater control over the administration of elections. (Alyssa Pointer/Atlanta Journal-Constitution via AP)

Shorter days, hours to vote

The lawsuits are challenging the changes in state laws that reduced the time to request absentee ballots, shortened periods for early voting and even reduced the hours for voting on Election Day.

Georgia's window for requesting absentee ballots went from 176 days to 67 days.

The Iowa law cut in half the days voters could request absentee ballots from 110 days to 55 days. Auditors also have less time to distribute absentee ballots, dropping from 19 days to five days. And the state shortened Election Day, with polls opening at 7 a.m. and closing at 8 p.m. rather than 9 p.m.

The LULAC lawsuit challenged the laws in state court, arguing they are “exercises in voter suppression, disguised as a solution to a problem that exists only in the fertile imaginations of their creators.”

“What makes the bills baffling – and fatally unconstitutional – is that they lack any cognizable justification for these burdensome effects on the franchise,” the lawsuit said. “The bills are largely a grab-bag of amendments and new restrictions that lack any unifying theme other than making both absentee and election day voting more difficult for lawful Iowa voters.”

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Aklima Khondoker, chief legal officer at the advocacy group New Georgia Project, said the Georgia law's shorter absentee voting period, reduction in drop boxes and prohibition against distributing food and water to voters in line were part of a vicious campaign to curb voting.

“This is an all-out assault on voting rights with no end in sight," Khondoker said. “It’s a plague to Georgia voters."

Georgia officials replied to their lawsuit that cutting absentee ballots requests to 11 days before an electiona feature of the new law is similar to other states with Democratic legislatures and governors. The officials cited requirements of 11 days in Arizona, 12 days in Indiana, 15 days in Iowa and 21 days in Rhode Island, among others. Meanwhile, Georgia provides three weeks of early voting, which officials said was longer than New York, New Jersey or Delaware.

“Georgia also provides greater opportunities to vote in other ways, which confirms that any burdens of SB 202’s requirements are minimal, at best, when compared to the ‘entire system of voting,’” the officials said in their legal filing.

LAWRENCEVILLE, GA - NOVEMBER 06: A Gwinnett County election worker processes absentee and provisional ballots at the Gwinnett Voter Registrations and Elections office on November 6, 2020 in Lawrenceville, Georgia. The 2020 presidential race between incumbent U.S. President Donald Trump and Democratic nominee Joe Biden is still too close to call with outstanding ballots in a number of states including Georgia. (Photo by Jessica McGowan/Getty Images) ORG XMIT: 775585277 ORIG FILE ID: 1229497324
LAWRENCEVILLE, GA - NOVEMBER 06: A Gwinnett County election worker processes absentee and provisional ballots at the Gwinnett Voter Registrations and Elections office on November 6, 2020 in Lawrenceville, Georgia. The 2020 presidential race between incumbent U.S. President Donald Trump and Democratic nominee Joe Biden is still too close to call with outstanding ballots in a number of states including Georgia. (Photo by Jessica McGowan/Getty Images) ORG XMIT: 775585277 ORIG FILE ID: 1229497324

Drop boxes move indoors

At least four states reduced access to drop boxes for voters to leave absentee ballots. The Iowa law limited drop boxes to one per county, in contrast to no previous limit.

In Georgia, Fulton County had 38 drop boxes and Gwinnett County had 23 last year. But the law cut the number to about eight in Fulton, six in Gwinnett and five each in DeKalb and Cobb, according to the Justice Department lawsuit.

The Florida law requires drop boxes to be monitored and available only during early voting hours eight to 12 hours per day. The law also reduced the number of drop boxes. For example, Miami-Dade County with 2.7 million people had 33 drop boxes last year. Now, it would only have two, according to the lawsuit.

Election officials in Georgia and Florida replied that voters had more options beyond drop boxes, such as returning ballots by mail or in person at election offices.

Florida Secretary of State Laurel Lee said in her legal filing that complaints rest on "political posturing" rather than "a serious legal challenge" to the law.

New laws threaten big fines

Fines under the new laws aim to discourage volunteers and groups from helping others to vote. In some cases, the fines target election officials who won widespread praise in 2020 for overseeing voting under contentious circumstances.

The Georgia law prohibited the government from sending unsolicited applications for absentee ballots. Because of "confusion" in 2020 over third-party organizations sending multiple applications to the same voters, the law threatened a $100 fine for each duplicate application. The Justice Department lawsuit criticized the fines as "onerous."

The League of Women Voters lawsuit complained that the new Arkansas law threatened $2,500 fines for providing snacks or water for voters waiting in lines or providing support for the elderly or disabled waiting in line.

"Thus, the only reasonable way to read Act 728's new broad prohibition is to criminalize the practice of providing support to voters who are waiting in long lines to vote," the lawsuit said.

Arkansas Attorney General Leslie Rutledge replied that the law doesn't restrict voting and the lawsuit should be dismissed.

In Iowa, the LULAC lawsuit complained that the law burdened election officials. A “technical infraction” of the Iowa election law by a county auditor overseeing elections threatens a $10,000 fine.

Florida’s law has a $1,000 fine for anyone who returns more than two ballots for other people who are not relatives. The League of Women Voters' lawsuit called the fine "steep" and said it would prevent "good Samaritans" from helping others vote.

The Florida law also carries a potential $25,000 penalty for any election supervisor who fails to comply with the law. The day after Gov. Ron DeSantis signed the law in May, Bay County Supervisor of Elections Mark Andersen moved the outdoor drop box indoors, so election workers could monitor it, rather than risk a violation.

“We saw election officials step up and really be the heroes in many ways of the 2020 election," said Sean Morales-Doyle, acting director for voting rights and elections at the Brennan Center. “We’re seeing certain states pass bills that are holding the threat of criminal or civil penalties over the heads of election officials."

More: 'Thumb on the scale'? Supreme Court decision could give advantage to new restrictive voting laws

The lawsuits could take months or years to resolve. State officials voiced confidence that changes in the law would be upheld, particularly after the Supreme Court's Brnovich decision in July, which found that voters must "tolerate the usual burdens of voting" and "inconvenience cannot be enough to demonstrate a violation."

But voting-rights advocates are worried about how the changes in rules could lead to confusion for coming elections. Under the new laws, voters need to learn deadlines for applying for absentee ballots, requirements for identification and restrictions on helping others. The results of lawsuits could scramble the rules again.

“I do think there is reason to be concerned when there are changes before an election," Morales-Doyle said.

This article originally appeared on USA TODAY: Republican voting laws in states face lawsuits ahead of 2022 elections

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