Ongoing disputes in states over voting rights won’t disappear after Senate Democrats lost their attempt to rewrite federal election law — and they may yet return to Congress for an uglier fight next year.
The battle over those new election laws will first head back to courthouses and state capitals, experts say, including a federal lawsuit over a new Texas voter registration law filed on Tuesday. However, the fight could easily get worse if Congress doesn’t intervene in some fashion, said Ed Foley, a law professor at the Ohio State University.
“It’s the consequence of all of the fighting over the voting process,” Foley said. “If the Georgia Senate race is close, if the Arizona Senate race is close and both sides distrust each other so much, it stands to reason that both candidates are going to knock on the door of Congress saying, ‘Hey, I’m the real winner here.’”
Senate Democrats voted together Tuesday but ultimately could not begin debate on a bill meant to overhaul federal election law, with provisions to standardize voter registration, early and absentee voting, as well as redistricting. The vote was 50-50, but it needed 60 votes, and Democrats Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona have opposed scrapping the Senate filibuster to pass the bill.
Senate Majority Leader Charles E. Schumer said he would continue to try and pass it, calling opposition to the measure “a rot at the center of the modern Republican Party.”
Senate Minority Leader Mitch McConnell, who blasted the bill as a “partisan power grab,” and other prominent Republicans have argued the measure represents a federal takeover of state election law.
New state laws
Democrats, however, say that they are motivated by hundreds of restrictions to voting proposed or passed in Republican-controlled state legislatures in the months since former President Donald Trump baselessly claimed he lost the 2020 election due to unspecified fraud. Democrats assert that the laws passed by states such as Florida, Georgia and Texas are meant to stifle voting, particularly in communities of color.
According to the Brennan Center for Justice at New York University School of Law, 14 states have enacted 22 new voting laws, with dozens more working their way through other legislatures.
That has driven partisan and nonpartisan groups to file nearly 20 lawsuits against states enacting new restrictions on voting, including the one filed Tuesday in Texas. That suit, filed by the Texas League of United Latin American Citizens and Voto Latino, argues that new restrictions on voter registration make it harder for students, the homeless and others without fixed addresses to vote.
The Texas Legislature passed a law enacting the registration changes while state Democrats fought off another, broader bill during the legislative session this year. Gov. Greg Abbott this week called lawmakers back for a special session this summer, however, and they are expected to take the bill up again.
Many progressives view the fight as a battle over the future of democracy.
“We’re in the midst of the greatest assault on voting rights since the Jim Crow era,” former Attorney General Eric H. Holder Jr., who served in the Obama administration, told redistricting activists in a call Monday ahead of the Senate vote.
Experts say laws like the ones passed in Georgia are more of a mixed bag, with little way to predict whether it will help one side or the other. The Georgia law will shorten the time for absentee ballot requests, impose new voter ID requirements, reduce ballot drop boxes and mobile voting centers, and make offering food or water to those waiting in line to vote a crime.
Foley said some of those restrictions may help increase confidence in elections, such as widely available voter ID, but others like the new crime may go too far.
Sunshine Hillygus, a political science professor at Duke University, told reporters Monday that the laws passed by states such as Georgia and North Carolina, which also tightened ID requirements, may end up running afoul of protections for minority voters under the federal Voting Rights Act.
Hillygus said the changes to voting laws may not end up helping Republicans, however, for several reasons. First, while minority voters tend to vote Democratic, they do not vote as a bloc. Second, the laws may also hurt the ability of young people, the elderly, less educated people and rural residents to cast a ballot.
“What we will see is that, absolutely, communities of color are disproportionately affected, but the partisan advantage or disadvantage, because other groups are also impacted, is far less clear,” Hillygus said.
The Biden administration’s Justice Department has hinted it may intervene in some of these states, as Attorney General Merrick B. Garland announced earlier this month the department would double the staff of its civil rights division.
“We are scrutinizing new laws that seek to curb voter access, and where we see violations, we will not hesitate to act,” Garland said.
However, the 2022 midterm elections may still end up heading to Congress. Foley pointed out that Congress has a responsibility under the Constitution to decide disputed congressional races — as played out in the fight over Iowa’s 2nd District earlier this year. Republican Mariannette Miller-Meeks, who won by six votes, prevailed after Democrat Rita Hart tried to have the House overturn Miller-Meeks’ win.
“It’s not inevitable, but there’s a significant risk that in January of ’23, as Congress reconvenes on Jan. 3, that you’re going to have some disputed congressional races reach Congress,” Foley said.
Todd Ruger contributed to this report.