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COMMENTARY | Expect GOP-led states to continue restricting voting rights in 2022.
The 2020 presidential election saw historic voter turnout, largely thanks to expanded mail-in balloting and early voting options. The success of the election—during a once-in-a-century pandemic—spurred baseless claims of voter fraud, and some lawmakers, egged on by then-President Donald Trump, began using these false claims to justify new voting restrictions. What followed was a flood of proposed legislation that makes it harder for BIPOC Americans, new citizens, young people and others to register and vote.
In 2021, at least 19 states passed 34 laws restricting voting access. Under a Texas law passed in September, it’s now a felony for local election officials to proactively send out mail-in ballot applications to qualified voters. In March, Georgia Gov. Brian Kemp signed a bill that limits the number of ballot drop boxes, makes it a crime to offer food or water to voters waiting in line, and gives the State Election Board authority over county election boards.
That same month, Iowa Gov. Kim Reynolds signed legislation that shrinks the state’s early voting period, closes polls an hour earlier and prohibits county auditors from proactively setting up in-person early voting sites or mailing absentee ballot request forms. Failure to comply with Iowa’s new election laws now carries a felony charge.
These laws aren’t passing in a vacuum; GOP lawmakers are abusing a policy mechanism called state preemption to advance voter suppression efforts by restricting the authority of local election officials, and often threatening them with punitive measures for simply trying to run smooth and fair elections. Republicans are giving unchecked power to GOP lawmakers, thus bringing in a partisan approach to nonpartisan election boards.
This is the latest front in a decade-long effort of using preemption to take power away from people and communities and strengthen inequitable systems rooted in white supremacy. Republicans are also using preemption to decimate public health authority, criminalize the right to protest and prevent municipalities from enacting equitable housing policies. This use of preemption disproportionately harms BIPOC communities, women, immigrants, and workers in low-wage industries.
Once enacted, the GOP's restrictive voting laws will disproportionately disenfranchise voters of color, particularly Black voters. In Georgia, for example, the legislature controls the state election board, which, under the new legislation, was granted more authority over county election boards. Voting rights advocates are justifiably concerned that the legislature’s influence may result in more restrictive voting policies for Fulton and Gwinnett counties, where a large number of Georgia’s Black voters live.
Georgia Sen. Raphael Warnock, a Democrat, encapsulated the harmful nature of the voter suppression preemption movement in his speech on the Senate floor last spring, saying, “We are witnessing right now a massive and unabashed assault on voting rights unlike anything we’ve ever seen since the Jim Crow era. This is Jim Crow in new clothes.”
Although the 2022 state legislative sessions are barely underway, Republican state legislators have been hard at work using their 2021 playbook to prepare for 2022. At present, at least 152 restrictive voting bills in 18 states will carry over into the 2022 legislative sessions, and at least 13 restrictive voting bills in four states have been pre-filed. These figures underscore how quickly the voter suppression movement has spread.
The Brennan Center for Justice, a nonpartisan organization that tracks and analyzes state voting legislation, estimates that the combined number of carryover and pre-filed restrictive voter laws for 2022 surpasses the number of restrictive voting laws that state legislatures have considered in the past decade. And with voting rights legislation unlikely to pass in Congress, 2022 will be another year of destructive voter suppression.
According to the Brennan Center’s recent analysis, the following 11 states are the most likely to restrict voting access and/or allow partisan actors to sabotage elections: Arizona, Florida, Georgia, Michigan, Missouri, Pennsylvania, New Hampshire, South Carolina, Tennessee, Texas and Wisconsin.
Unsurprisingly, the themes of the legislation and ballot initiatives up for consideration in 2022 echo the restrictive laws passed last year. Examples include:
- Prohibiting the secretary of state or local election officials from sending absentee ballot application forms to voters (Michigan).
- Imposing stricter voter identification requirements (Arizona and Michigan).
- Authorizing partisan review of past election results (Florida and Tennessee).
- Authorizing partisan review of future election results (Missouri, New Hampshire, and South Carolina).
The movement to preempt local election officials and engage in explicit voter suppression puts us on a dangerous path. Given the ongoing struggle to secure comprehensive voting rights protections at the federal level, advocates must focus on ensuring a healthy balance of power between local and state governments. There's a framework for how to do this called modernizing home rule, the legal structure that determines local power and shapes how states can interfere with local decision making. Home rule hasn't been updated in nearly seven decades and doing so now is essential to ensuring that local elected officials can enact policies that meet the needs of all their residents.
In the current climate, modernizing home rule is about more than just ensuring local governments have the appropriate authority—it's about protecting the principles upon which our democracy was founded.
Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, where he teaches courses on state and local government laws. Jessie Ulibarri is the co-executive director of the State Innovation Exchange, a national resource and strategy center that supports state legislators to move bold public policy. She is a former Colorado state senator.
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