The Battle Over Voting Rights in America is Red-Hot. Here’s What Has Changed since 2010.
State lawmakers have passed a swath of anti-voter laws in recent years, but voting rights advocates are fighting back.
By Ashoka Mukpo
October 31, 2018
In late October, an audio recording leaked from a fundraising event in Georgia captured Brian Kemp, the Republican gubernatorial candidate, expressing concern about his Democratic opponent Stacy Abrams’ get out the vote efforts. In it, he pointed to her campaign’s mobilization of absentee ballots as “something that continues to concern us.” A candidate for office worrying about their opponent’s ability to get voters to the polls is nothing new, but Kemp’s comments underscored the emergence of voting rights as a contentious issue in the campaign.
Georgia isn’t alone. Across the country, states have become embroiled in battles over access to the vote, and the outcome could well determine who holds electoral power in America for years to come.
Since the 2008 election, when high turnout by young voters and voters of color propelled Barack Obama to the presidency, a wave of restrictions on voting have been passed by state legislatures or put in place by state election officials. Early voting periods have been shortened, polling places shuttered, and voter ID requirements implemented that have made it more difficult to vote in many states. On the other side, voting rights advocates have challenged many of these restrictions in court — often successfully — and pushed for policies designed to increase voter turnout.
Credit: Brennan Center for Justice
According to an analysis by the Brennan Center for Justice, 24 states have imposed restrictions on voting since 2010. Eight of those states have put new restrictions in place in the two years since the last presidential election. With few exceptions, these restrictions were drawn up by Republican legislators, and they have almost uniformly had the effect of creating obstacles to voting for younger voters and people of color, who tend to lean Democratic. The false menace of voter fraud is the most common justification for this contraction of voting rights, but there are clear signs that the aim is to prevent eligible voters from reaching the polls.
In 2012, for example, a former GOP party chairman in Florida admitted a law restricting early voting was passed specifically because “early voting is bad for Republican Party candidates.” After similar restrictions were passed in North Carolina, a Republican Party press release explicitly celebrated a decline in early voting by Black residents. After the 2016 presidential election, Wisconsin’s Republican Attorney General credited the state’s controversial voter ID law with President Trump’s victory there. Black voters in Wisconsin were three times more likely than white voters to say that the law had made it more difficult for them to vote.
Passage of Amendment 4 in Florida would restore voting rights to an estimated 1.4 million people
But voting rights advocates are pushing back. In some cases, they’ve used the courts. In Kansas, for example, the ACLU successfully blocked a state law that required individuals to provide documentary proof of citizenship, like a birth certificate or passport, to register to vote. In other cases, advocates have lobbied state legislatures to pass laws that encourage voter registration or fought to defeat new voter ID requirements. This year, a number of states have initiatives on the ballot that have the potential to make voting easier and more accessible to millions of Americans. Amendment 4 in Florida alone will give back the vote to an estimated 1.4 million state residents with felony convictions if it passes. And earlier this year, advocates won a major victory in Washington, helping to get a law passed that allows greater flexibility for communities to set the rules of local elections and prevent the marginalization of minority groups from elected offices.
The battle over voting rights in the U.S. has a long, bitter history, and the last few years show it’s far from settled. With crucial midterm elections coming up, these are the most prominent issues at play, along with a look at some changes made to voting rights at the state level since 2010.
Allowing eligible voters to get their names onto state voting rolls is critical to increasing access to the polls. But policies in some states have established significant obstacles to registration. Rather than creating simplified processes that encourage easy registration, some states have adopted systems that do exactly the opposite, making it harder for voting rights advocates to help get eligible voters on the rolls.
On the other hand, in recent years those advocates have won big victories in some states that have streamlined registration processes. Automatic voter registration, for example, which requires anyone who interacts with a state motor vehicle department to “opt-out” of registration rather than having to tick a box to “opt-in,” has gained strong momentum in just a few years.
15 states and D.C. allow voters to register on Election Day.
Since 2015, 13 states—Alaska, California, Colorado, Georgia, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington, and West Virginia—have passed automatic voter registration laws, along with the District of Columbia. Cumulatively, these laws have the potential to include hundreds of thousands of new voters onto the rolls. In Nevada, an initiative on next week’s ballot would make automatic voter registration into state law, ensuring that anyone who interacts with a wide range of state agencies will be placed onto voter rolls.
Currently, 15 states and the District of Columbia have policies that allow voters to register on Election Day rather than requiring them to register weeks beforehand (eight states introduced that policy since 2010). Research shows that these policies can significantly boost voter turnout. Washington has also passed election-day registration, but it will not be implemented until 2019. Initiatives on the November ballot in Maryland and Michigan would make those states the 17th and 18th in the nation to offer election-day registration if they pass. Michigan’s ballot measure, called “Promote the Vote,” would implement a broad swath of procedures to encourage voter registration, expand access to absentee ballots, and require post-election audits.
Credit: National Conference of State Legislators
Many states now offer online voter registration, although it is typically limited to residents with a valid state ID. Since 2010, 35 states along with D.C. have introduced online voter registration. A full list can be found here.
But the news isn’t all good. Here are some states that have imposed restrictive voter registration policies since 2010:
Texas – In 2011 Republican lawmakers passed a law that made it illegal to help someone register to vote without first being “deputized” by a county board. Even after going through that process, a “Volunteer Deputy Registrar” can be charged with a felony if that person helps someone from a different state county register to vote. This law has made it nearly impossible to organize voter registration drives in the state.
Kansas – In 2011, a bill that was supported by both Republican and Democratic lawmakers in Kansas created a requirement that prospective voters provide documentary proof of citizenship—such as a passport or birth certificate, which many eligible voters do not possess—in order to register to vote. A federal judge ruled the requirement unconstitutional in June after a lawsuit brought by the ACLU.
Tennessee – In 2011, Republican lawmakers passed a law that allows the state to flag voters who are suspected of being non-citizens and require them to show proof of citizenship in order to cast a ballot.
Alabama – In 2011, Republican lawmakers passed a law requiring prospective voters to show proof of citizenship before registering to vote. The requirement has not been implemented, but in 2016 the Election Assistance Commission—a federal agency that exercises a supervisory role over some election-related issues—allowed the state to require proof of citizenship for state residents who use a federal election form to register to vote. After a court challenge, the requirement was blocked.
Georgia – In 2016, the federal Election Assistance Commission also allowed Georgia to require proof of citizenship for state residents who use a federal election form to register to vote. After a court challenge, that requirement was also blocked pending appeal.
Ohio – In 2014, Republican lawmakers eliminated the state’s “golden week” period — a six-day window at the beginning of Ohio’s early voting period that allowed voters to register and cast their ballot on the same day. Some 80,000 voters — disproportionately from poor and minority backgrounds — made use of “golden week” in 2012. The U.S. Supreme Court refused to order Ohio to reverse the cut in 2016.
Florida – After the 2010 election, Republican lawmakers passed a law that imposed harsh requirements on groups conducting voter registration drives. An analysis by The New York Times in 2012 showed that the law had the effect of severely decreasing the number of new voters able to register when compared with similar periods in earlier election cycles.
Other states that have implemented some form of restrictions on voter registration since 2010 include Wisconsin, Illinois, Virginia, Iowa, and New Hampshire. For more on these restrictions, see this map by the Brennan Center for Justice.
When done properly, list maintenance of voter rolls ensures an accurate accounting of who’s eligible to vote by removing the names of people who have died or moved out of state. But maintenance can become a ‘purge’ when it arbitrarily removes large groups of voters through faulty processes. Such purges often have a disproportionate impact on voters of color.
One analysis carried out by Reuters, for example, found that in Ohio’s three largest counties, 144,000 voters had been stricken from the rolls between 2008 and 2016, and that “neighborhoods that have a high proportion of poor, African-American residents [were] hit hardest.”
Another analysis of voter purges published by the Brennan Center for Justice in July found that between 2014 and 2016, states removed nearly 16 million voters from their rolls. Disturbingly, states that were no longer subject to preclearance requirements of the Voting Rights Act after Shelby County v. Holder saw large spikes in voter purges. In Texas alone, over 350,000 more voters were purged from the rolls in the election cycle following Shelby County than in the cycle that preceded the ruling.
And in Georgia, more than half a million voters were removed in 2017, including over 100,000 who simply hadn’t voted in recent elections or responded to a notice mailed by the state. The purge was supervised by Georgia’s Republican Secretary of State Brian Kemp, who is now running for governor.
Voter ID Laws
Voter ID laws typically require voters to present a photo ID at polling stations before entering the booth, and often specify that those IDs must be issued by a government agency or include a street address. In practice, voter ID requirements suppress turnout, particularly by voters of color, who are statistically less likely than white voters to have an ID that satisfies the legal requirements. Nationally, up to 25 percent of Black citizens of voting age lack government-issued photo ID, compared with only 8 percent of white citizens. Since 2010, 14 states have imposed more restrictive voter ID laws than they had previously.
Texas – After a series of court challenges to voter ID laws passed after the 2010 and 2012 elections, Texas passed a law in 2016 that requires voters to present a government-issued ID card. Alternatively, in lieu of that ID, they may present documents from a limited list, including bank statements, utility bills, or a birth certificate and sign an affidavit stating that they were not able to acquire a government-issued ID for a narrow set of approved reasons. If the voter does not have any of the IDs on that list, she may cast a provisional ballot and provide the required documentation within six days of the election.
North Dakota – After the 2016 election, North Dakota Republicans passed a law that requires voters to show photo ID issued by the state, a tribal government, or a North Dakota long-term care facility. The ID must include a residential street address, a requirement that could disenfranchise thousands of Native American voters, who live on reservations in rural areas and don’t have street addresses. The law allows voters to show other forms of documentation that display a residential address, including bank statements or utility bills, but many may not have that documentation because of homelessness or poverty. Voters without approved photo ID may submit a provisional ballot, but are still required to show the ID promptly for their vote to be counted.
Missouri – After a protracted political battle between Republican lawmakers and the state’s Democratic governor, Missouri voters overwhelmingly approved a ballot initiative in 2016 that requires voters to present ID from a pre-approved list. If a voter does not have acceptable ID, she may cast a provisional ballot that will be counted if acceptable ID is shown at a polling station later, or if poll workers can match the voter’s signature to the one on the voter registration form. Earlier this month, a state judge blocked a provision that would have required voters without photo ID to sign an affidavit. And the ACLU is currently suing Missouri for failing to fund programs required by the law that would provide free voter IDs and train poll workers in how to navigate its requirements.
Arkansas – After the 2016 election, Republican lawmakers passed a voter ID requirement that will be in effect for this year’s midterms. Voters must now present a government-issued photo ID at their polling station. If they do not possess the required ID, they may cast a provisional ballot, and state election officials will decide later whether or not to count the vote. Earlier this month, the law was upheld by the state supreme court, which in 2016 had blocked a prior version that didn’t include the provisional ballot alternative. This year, a measure is on the ballot in Arkansas that would specifically allow photo ID requirements for voting, effectively ending court challenges to the law.
Wisconsin – After the 2010 election, Republican lawmakers passed a voter ID law that was signed by Gov. Scott Walker. The law was subsequently blocked by a federal district court until a few months before the 2016 election. Voters are now required to present one of a narrow list of approved photo IDs. The ACLU has sued Wisconsin over the law.
Tennessee – After the 2010 election, Republican lawmakers in Tennessee passed one of the strictest voter ID laws in the nation, which allows handgun carry permits to be displayed to poll workers but not student IDs. If a voter does not have the required ID, they may cast a provisional ballot and then display appropriate ID at an election commission office within two days of the election.
Mississippi – In 2011, a ballot measure was overwhelmingly approved that required voters to display photo ID to poll workers. The law took effect in 2014, after the Supreme Court gutted the “preclearance” requirement of the Voting Rights Act in Shelby County v. Holder. Voters must now show one of a list of pre-approved photo IDs in order to vote, or cast a provisional ballot and then bring the ID to a Circuit Clerk’s office within five days.
Alabama – After the 2010 election, Republican lawmakers in Alabama passed a law requiring voters to display one of a pre-approved list of photo IDs in order to vote. Similar to Mississippi, the law went into effect in 2014, after the Supreme Court’s Shelby County decision. If voters do not have an approved photo ID, they may submit a provisional ballot.
South Carolina – After the 2010 election, Republican lawmakers in South Carolina passed a law requiring voters show photo ID at polling stations. The law was challenged in court and in 2012 it was amended to allow voters to show their voter registration card and sign an affidavit stating they have a “reasonable impediment” to obtaining photo ID.
Virginia – After the 2012 election, Republican lawmakers passed a law requiring voters show one of a pre-approved list of photo IDs at polling stations. After a legal challenge, the law was upheld by a federal appeals court in late 2016. Voters without approved photo ID may submit a provisional ballot at their polling station, but they must then acquire ID and submit a copy of it to a voter registration office by the Friday after the election for their vote to be counted.
Rhode Island – After the 2010 election, Democratic lawmakers in Rhode Island passed a law requiring voters to show one of a pre-approved list of photo IDs at their polling station. The law is considered less strict than those in other states—if voters lack the required ID, they may cast a provisional ballot that will be counted with no follow-up required by the voter provided their signature matches the one on file.
New Hampshire – After the 2010 election, Republican lawmakers overrode a veto by the state’s Democratic governor to pass a law that requires voters to present one of a pre-approved list of photo IDs at their polling station. The law is far less strict than those in other states, allowing voters without photo ID to cast a standard ballot, provided they are willing to have their picture taken and affixed to a signed affidavit.
West Virginia – In 2016, Republican lawmakers passed a law requiring photo ID at polling stations. The law went into effect this year, but it is less strict than those in other states, allowing voters who do not have photo ID to cast a provisional ballot after signing an affidavit. If the voter’s signature matches the one on file, that vote will be counted. Alternately, voters without ID can have their identity confirmed at the polling station by an adult they’ve known for at least six months.
Pennsylvania – In 2014, after a successful lawsuit by a legal team that included the ACLU of Pennsylvania, the state’s restrictive voter ID law was ruled unconstitutional by a state judge. The ruling was not appealed.
Voter ID laws tend to get the most press coverage, but changes to early voting periods can also have a significant impact on turnout. Many voters aren’t able to make it to the polls on Election Day, particularly if they work in hourly wage jobs and can’t get time off to vote. In 2016, 47 million Americans voted early — an increase of 15 million just since 2012. Black voters in particular are statistically more likely to take advantage of these periods than white voters. According to the Brennan Center for Justice, seven states made cuts to their early voting periods since 2010.
Since 2015, 13 states and D.C have passed automatic voter registration laws.
In 2011, for example, Florida shortened its early voting period from 14 to 8 days. The cuts led to long lines at polling stations during the 2012 election, with one study estimating that over 200,000 voters in the state didn’t vote because of those lines. After public outcry, Florida now allows its county election supervisors the discretion to expand early voting, although the total number of allowable days is still less than it was prior to 2011. In 2014, Ohio legislators cut the state’s six-day “golden week” early voting period, which had allowed voters to register and cast their ballot on the same day.
Other states that have shortened their early voting periods since 2010 include Tennessee, Nebraska, Georgia, West Virginia, and North Carolina. In 2014, Republican lawmakers in Wisconsin eliminated early voting on nights and weekends. A federal judge struck down this restriction, allowing the early voting periods to remain pending an appeal by the state that is presently being weighed by the U.S. Seventh Court of Appeals.
Voting Rights for Formerly Incarcerated People
Thirty-four states have some form of restrictions on voting rights for people who have been convicted of felonies. Florida, Iowa, Virginia, and Kentucky currently impose lifetime voting bans on people convicted of a felony; those can only be discharged through a pardon issued by the state’s governor. These laws can be traced back to Jim Crow, and have had a disproportionate impact on Black voters in particular. Overall, Black Americans make up only 12 percent of the nation’s population, but 40 percent of those subject to felony disenfranchisement.
Between 2010 and 2012, Iowa, South Dakota, and Florida all enacted laws that made it harder for people convicted of felonies to regain their right to vote. But in recent years, the movement to give the vote back to people convicted of felonies has been picking up steam.
Florida – Floridians will have the chance this November to vote on Amendment 4, which would restore voting rights to 1.4 million state residents, including 500,000 Black Floridians. These are people with felony records, who have completed their sentences, parole and probation periods.
Delaware – In 2013, Democratic lawmakers in Delaware passed a law that allowed most people convicted of felonies to vote after completing their sentence, including parole and probation periods.
Kentucky – In 2015, an executive order by the state’s Democratic governor restored voting rights for people who had been convicted of non-violent felonies. But just a few months later, his Republican successor rescinded the order.
Maryland – In 2016, the Maryland General Assembly overrode a gubernatorial veto of a bill that restored voting rights to anyone who had been convicted of a felony but was not incarcerated. Now, people with felony convictions are permitted to vote after they are released from prison even if they are on probation or parole.
Louisiana – Earlier this year, John Bel Edwards, Louisiana’s Republican governor, signed a bill that granted the right to vote to people who’d been convicted of felonies and have been out of prison for five years but are still on probation or parole.
Virginia – In 2016, Terry McAuliffe, the Democratic governor, signed an executive order that restored voting rights to people who’d been convicted of felonies and completed their sentences, including parole and probation periods. There was strong partisan opposition by Republicans, and the Virginia Supreme Court ruled McAuliffe’s order unconstitutional. McAuliffe countered by personally restoring voting rights on an individual basis to over 150,000 people.