Despite the COVID-19 pandemic, voters turned out in record numbers in 2020 — whether they voted in person or absentee.[1] During and after the 2020 election, then-President Trump raised frivolous claims that voter fraud, particularly in absentee voting, had tainted the election.[2] Despite these claims being repeatedly debunked, state lawmakers across the country have aggressively pushed legislation that would restrict access to the ballot box. In the first half of 2021, lawmakers in all but one state have introduced hundreds of restrictive voting bills, with restrictive policies already enacted in at least seventeen states.[3] The sheer volume of legislation makes these efforts to restrict voting access unique and all efforts to push back so critical.

A consistent theme in this legislation is limiting access to absentee voting. In addition, many of the restrictive laws enacted to date focus on imposing stricter ID requirements for absentee and in-person voting, limiting voter registration opportunities, and increasing the likelihood of voters being “purged.”

Americans increasingly turned to absentee ballots in 2020.[4] The response in many states has been an increased effort to restrict the availability of absentee voting. In the first six months of 2021, more than half of the new laws restricting voting access limit absentee voting in some way.[5] For example, the new Georgia law will require voters to supply an ID number or a copy of an ID when requesting and returning an absentee ballot. The bill also dramatically shortens the timeframe when a voter can request an absentee ballot and seriously limits and undermines the effectiveness of absentee ballot drop boxes.[6] The new Iowa law also limits the timeframe to apply for an absentee ballot and shortens the window for returning an absentee ballot.  In addition, the Iowa law limits drop box availability to one per county and imposes additional restrictions on who can return an absentee ballot on a voter’s behalf.[7]

Additionally, advocates and lawmakers continue to push for stricter voter ID requirements for absentee and in-person voters alike.[8] Four laws have been enacted to date to tighten or impose new ID requirements.[9] For example, a new Wyoming law will require that voters present one of only a few forms of ID before voting.[10] This policy doesn’t give voters unable to obtain ID the opportunity to affirm their identity and vote with a regular ballot.[11] In Montana, a new law restricts the use of student ID for voter registration and for in-person voting.[12] In Arkansas, two new laws impose harsher voter ID requirements: The first eliminates a voter’s ability to vote by provisional ballot if he or she lacks ID;[13] the second removes a voter’s option to use a non-photo ID, even if the voter has a religious objection to being photographed.[14]

Lawmakers have also passed bills that will make the registration process more difficult. For example, a new Montana law will eliminate Election Day voter registration,[15] and the new Iowa law moves the deadline to register to vote from eleven to fifteen days before Election Day.[16]

Another major theme among bills that are moving or have passed is expanding opportunities to purge voter rolls — with four such laws enacted to date.[17] The aforementioned Iowa law, for example, requires the state to participate in the United States Postal Service’s change-of-address program as a mechanism of removing voters from the rolls.[18] The new Utah law allows for the state to remove voters’ names from the rolls without any notice to the voter if the state has received notice that the person may be deceased.[19]

At least 24 lawsuits have already been filed in state and federal courts challenging many of these laws.[20] Eight lawsuits had been filed in federal court challenging Georgia’s new law, including a case filed by the U.S. Department of Justice.[21] In one suit, the Georgia NAACP and other parties claim that the law’s restrictions on absentee voting — e.g., requiring ID with absentee ballots and curtailing ballot drop boxes — violate Section 2 of the Voting Rights Act and the 1st, 14th and 15th Amendments to the U.S. Constitution.[22] In Iowa state court, the Iowa branch of the League of United Latin American Citizens (LULAC) filed suit claiming that, among other provisions, restricting the number of drop boxes and limiting who can return an absentee ballot on behalf of a voter violated the state constitution’s guarantees of the right to vote, free speech and assembly, and of equal protection.[23]

Beyond litigation, federal legislation is necessary to push back against efforts to restrict voting access, including the For the People Act (H.R. 1/S. 1) and the John Lewis Voting Rights Advancement Act (VRAA). The For the People Act would make voting accessible for those who do not have the necessary ID and would prohibit the requirement for ID for absentee voting. The bill would also require states to provide drop boxes, eliminate excuse requirements for absentee ballots for federal elections, and require states to provide same-day voter registration for federal elections.[24] The For the People Act would create a floor for what states must do to ensure access to the polls. In doing so, the legislation would serve as a guard against the types of restrictive legislation that is moving or has passed in the states.[25] While the House passed the For the People Act several months ago, Senate Republicans have stalled progress by refusing to start debate on the bill.[26]

Just as important is the VRAA, which would restore the Voting Rights Act of 1965 to its full force. Because of the Supreme Court’s 2013 Shelby County decision, there is currently no federal preclearance process in effect for states with histories of voter discrimination.[27] The VRAA would create new criteria to determine which states and jurisdictions would have to submit voting changes for review to the Justice Department or a federal court.[28] Passing the VRAA would allow the Justice Department or a court to stop these restrictive laws in their tracks.[29]

Too many bills that would restrict absentee voting, impose stricter ID requirements, limit registration opportunities, and increase voter purge opportunities have passed across the country. In addition to challenging these restrictive voting laws in the courts — and in the court of public opinion — the passage of H.R. 1 and the VRAA is necessary in order to combat these efforts at voter suppression. The Congress must pass, and President Biden must sign, both H.R. 1 and the VRAA.

[1] Drew Desilver, Turnout soared in 2020 as nearly two-thirds of eligible U.S. voters cast ballots for president, Pew Research Center, Jan. 28, 2021, available at https://www.pewresearch.org/fact-tank/2021/01/28/turnout-soared-in-2020-as-nearly-two-thirds-of-eligible-u-s-voters-cast-ballots-for-president/; Domenico Montanaro, President-Elect Joe Biden Hits 80 Million Votes In Year Of Record Turnout, NPR, Nov. 25, 2020, available at https://www.npr.org/2020/11/25/937248659/president-elect-biden-hits-80-million-votes-in-year-of-record-turnout.

[2] Stephanie Saul & Reid J. Epstein, Trump is Pushing a False Argument on Vote-by-Mail Fraud. Here are the Facts, N.Y. Times, April 9, 2020, available at  https://www.nytimes.com/article/mail-in-voting-explained.html; Jim Rutenberg et al., Trump’s Failed Crusade Debunks G.O.P.’s Case For Voting Restrictions, N.Y. Times, Dec. 27, 2020, available at https://www.nytimes.com/2020/12/26/us/politics/republicans-voter-fraud.h... see also Donald J. Trump, Remarks at White House Coronavirus Task Force Press Briefing (April 7, 2020) (“Now, mail ballots — they cheat. Okay? People cheat. Mail ballots are a very dangerous thing for this country, because they’re cheaters. They go and collect them. They’re fraudulent in many cases. You got to vote. And they should have voter ID, by the way. If you want to really do it right, you have voter ID.”).

[3] Brennan Center for Justice, Voting Laws Roundup: May 2021, May 28, 2021, available at https://www.brennancenter.org/our-work/research-reports/voting-laws-roun....

[4] Alexa Corse & Chad Day, Coronavirus Surge in Mail Voting Likely to Lead to More Rejected Ballots, Wall St. J., Oct. 4, 2020, available at https://www.wsj.com/articles/coronavirus-surge-in-mail-voting-likely-to-lead-to-more-rejected-ballots-11601827201; Zach Montellaro & Laura Barrón-López, States rush to prepare for huge surge of mail voting, Politico, April 25, 2020, available at https://www.politico.com/news/2020/04/25/states-mail-voting-surge-207596. 

[5] Brennan Center for Justice, supra note 3 (see enacted laws tracker).

[6] S.B. 202, 2021 Leg. (Ga. 2021).

[7] S.F. 413, 89th Gen. Assemb. (Iowa 2021).

[8] The Heritage Foundation, The Facts About Election Integrity and the Need for States to Fix Their Election Systems 3 (2021) (“A voter should be required to validate his or her identity with government-issued photo ID to vote both in-person or by absentee ballot (as states such as Alabama and Kansas require).”).

[9] Brennan Center for Justice, supra note 3 (see enacted laws tracker).

[10] H.B. 75, 66th Leg. (Wyo. 2021).

[11] Id.

[12] S.B. 169, 67th Leg. (Mont. 2021).

[13] H.B. 1112, 93rd Gen. Assemb. (Ark. 2021).

[14] H.B. 1244, 93rd Gen. Assemb. (Ark. 2021).

[15] S.B. 169, 67th Leg. (Mont. 2021).

[16] S.F. 413, 89th Gen. Assemb. (Iowa 2021).

[17] Brennan Center for Justice, supra note 3 (see enacted laws tracker).

[18] S.F. 413, 89th Gen. Assemb. (Iowa 2021).

[19] H.B. 12, 2021 Gen. Sess. (Utah 2021).

[20] See e.g., Brennan Center for Justice, Voting Rights Litigation Tracker 2021, June 9, 2021, available at https://www.brennancenter.org/our-work/research-reports/voting-rights-li... Pete Williams, Georgia faces growing number of legal challenges over new voting law, NBC News, Mar. 30, 2021, available at https://www.nbcnews.com/politics/elections/georgia-faces-growing-number-legal-challenges-over-new-voting-law-n1262478;  Montana Democratic Party challenges changes to voter ID laws, Associated Press, April 20, 2021, available at https://apnews.com/article/election-2020-government-and-politics-montana-laws-voter-registration-9779bbeccccbc33ee3079138d55e59af; Stephen Gruber-Miller, Latino civil rights group sues over Iowa's new election law, which cuts early and Election Day voting, Des Moines Register, Mar. 9, 2021, available at https://www.desmoinesregister.com/story/news/politics/2021/03/09/lulac-sues-iowa-voting-law-signed-gov-kim-reynolds-constitutional-rights-latino-civil-rights-group/4643153001/.

[21] New Georgia Project v. Raffensperger, No. 1:21-01229 (N.D. Ga. filed Mar. 25, 2021); Georgia State Conf. of the NAACP v. Raffensperger, No. 1:21-cv-01259 (N.D. Ga. filed Mar. 28, 2021); Sixth District of the African Methodist Episcopal Church v. Kemp, No. 1:21-cv-01284 (N.D. Ga. filed Mar. 29, 2021); Asian Americans Advancing Justice-Atlanta v. Raffensperger, No. 1:21-cv-01333 (N.D. Ga. filed April 1, 2021); VoteAmerica v. Raffensperger, No. 1:21-cv-01390 (N.D. Ga. filed April 7, 2021); Concerned Black Clergy of Metropolitan Atlanta, Inc. v. Raffensperger, No. 1:21-cv-01728 (N.D. Ga. filed April 27, 2021); Coalition for Good Governance v. Raffensperger, No. 1:21-cv-2070 (N.D. Ga. filed May 17, 2021); United States v. Georgia, No. 1:21-cv-02575-JPB (N.D. Ga. Filed June 25, 2021).

[22] Complaint for Declaratory and Injunctive Relief, Georgia State Conf. of the NAACP v. Raffensperger, No. 1:21-cv-01259 (N.D. Ga. Mar. 28, 2021).

[23] Petition in Law and Equity, League of United Latin American Citizens of Iowa v. Pate, No. CVCV061476 (Iowa Dist. Ct. Mar. 9, 2021).

[24] For the People Act, H.R. 1, 117th Cong. §§ 1621, 1903, 1907 (2021); see also S. 1, 117th Cong.

[25] Wendy Weiser et al., Congress Must Pass the ‘For the People Act’, Brennan Center for Justice, April 1, 2021, available at https://www.brennancenter.org/sites/default/files/2021-04/2021_03_CaseForHR1_update_V6.pdf.

[26] Barbara Sprunt, Senate Republicans Block Democrats' Sweeping Voting Rights Legislation, NPR, June 22, 2021 available at https://www.npr.org/2021/06/22/1008737806/democrats-sweeping-voting-righ....

[27] See Shelby County, Ala. v. Holder, 570 U.S. 529, 556–57 (2013) (holding that the existing preclearance coverage formula violated the U.S. Constitution and could not be used as a basis for determining which jurisdictions required preclearance).

[28] John Lewis Voting Rights Advancement Act, H.R. 4, 116th Cong., § 3(b) (2019).

[29] See, e.g., Texas v. Holder, 888 F. Supp. 2d 113, 144 (D.D.C. 2012) (denying federal preclearance to a strict voter ID law), vacated and remanded, 570 U.S. 928 (2013) (vacating denial on the basis of the Shelby County decision).