State lawmakers continue to introduce new restrictive voting provisions.
According to the Brennan Center for Justice, “as of March 24, 2021, legislators in 47 states have introduced 361 bills with restrictive provisions designed to make it harder for some communities to vote. That’s 108 more than the 253 restrictive bills tallied as of February 19, 2021—a 43% increase in little more than a month.”
These insidious measures would not have happened if “pre-clearance had remained the law.
What is “Pre-Clearance?”
In part, under the Voting Rights Act of 1965, states and counties with a history of voter discrimination had to get federal approval before enacting new voting laws or legislation (called pre-clearance). States that wanted to obtain pre-clearance had to demonstrate that a proposed voting change would not have the purpose or the effect of discriminating against an ethnic or “language minority group.” Those ethnic groups include African Americans, Native American Indian, Asian American, Alaskan Natives, and people of Spanish heritage.
However, in 2013, in Shelby County v. Holder, the Supreme Court gutted the pre-clearance requirement of the Voting Rights Act—giving a green light to states and politicians to attack voters’ rights and pass new restrictive laws that never would have stood up to a pre-clearance review.
The Court’s rationale was that discrimination had “ended,” and therefore there was no need to prohibit it. The very same day, Texas officials announced they would implement the state’s strict photo ID law, which was previously blocked by Section 5 because of its racial impact. And just weeks after the Shelby County decision, the NC legislature passed what was then considered the most restrictive piece of voting legislation passed in years: it imposed a strict photo ID requirement, significantly cut back on early voting, and reduced the window for voter registration.
According to the Brennan Center, “Lawmakers waited until after preclearance was gone to move forward with the legislation, with a [NC] State Senate committee chair telling the press after the Court’s decision, ‘Now we can go with the full bill,’ rather than a pared down, less restrictive version.”
In the eight years since Shelby, and particularly since Republican losses in the 2020 elections, the most restrictive bills take aim at absentee voting, while nearly a quarter of these bills seek stricter voter ID requirements—particularly for African Americans, the elderly, students, and people with disabilities—to exercise their fundamental right to cast a ballot. These measures follow the NC pattern of cuts to early voting, voter ID laws, and purges of voter rolls.
The rise reflects a sharp contrast to a year ago when state lawmakers were far less interested in restricting voting access.
The states that have seen the largest number of restrictive bills introduced of late are Texas (49 bills), Georgia (25 bills), and Arizona (23 bills). These bills are actively moving in the Texas and Arizona statehouses, and Georgia enacted an omnibus voter suppression bill most recently.
In large part these bills are in reaction to the fact that county election officials, including a number of Republicans, conducted elections during the Covid-19 pandemic and stood up to party pressure to manipulate the results. State lawmakers are now seeking new criminal penalties to target these officials.
Republicans currently control both chambers of 30 state legislatures, including in Texas, Georgia and Arizona. The only three states that had not yet introduced a voting bill with restrictive provisions are Delaware, Ohio, and Vermont.