As GOP shifts strategy from election lawsuits to laws, voting rights advocates point to Tennessee as warning
Voter ID, restrictions on mail ballots and other measures emerge in legislatures throughout the US
Hundreds of ballots await signature verification at the Jefferson County elections office on Oct. 21, 2020. (Eli Imadali for Colorado Newsline)
As Republican-led legislatures continue a systematic push to pass laws they say are aimed at ratcheting up election security, voting rights advocates in Tennessee worry the entire nation could soon look a lot like the Volunteer State where voter turnout and voter registration figures are among the lowest in the country.
The policy debate over voting rights and election integrity has exploded in state houses across the country, ignited by last year’s contentious elections where more people voted — particularly by absentee and mail — than ever before.
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Then-President Donald Trump decried the election as fraudulent and some Republicans responded by pursuing election related lawsuits. After those legal maneuvers failed and nonpartisan watchdogs concluded there was no evidence of such fraud, the GOP strategy has shifted to passing new state laws, which proponents say will improve election integrity.
The bills would require government photo identification in order to vote, diminish the ability of many voters to cast absentee ballots, strictly regulate voter registration and incorporate high hurdles for felons to restore their voting rights.
Even in reliably red states, such as Idaho, Iowa and Kansas, where Republicans control both legislative chambers and Trump won in 2020, elected officials have either adopted new laws or are weighing legislation that critics argue will make it more difficult to vote.
No place was more apparent than in Georgia. With its GOP governor and top election officials coming under fire after voters turned the state blue, the legislature passed the “Election Integrity Act of 2021” last week. Not only does the legislation curb absentee access and impose an ID requirement to vote by mail, it went as far as making it illegal to give water and snacks to voters waiting in line.
In other words, many states are mimicking the Tennessee playbook.
Activists, such as Shanna Singh Hughey, president for the nonpartisan, nonprofit think tank ThinkTennessee, said the fallout from such legislation could be a decline in voter participation.
“We know one thing for sure, and it’s that public policy impacts civic engagement,” Hughey said, explaining how Tennessee’s election laws have affected voter turnout. “We know that states that have voter registration and laws that make that possible, while keeping elections safe, have that engagement. And we know that Tennesseans want to see that same thing here.
“How voter registration and turnout happen is not magic,’’ Hughey said. “It’s not by accident. It’s connected to public policies that make that possible.”
In 1996, Tennessee ranked No. 10 nationally in voter turnout in the November election. The state dropped to 50th out of 51 states and Washington D.C. in 2016, ahead of only Texas, according to research conducted by Northern Illinois University. Tennessee ranked 44th for percentage turnout in 2018 and 47th in 2020, when the state saw a dramatic jump in turnout to 59.8 percent of eligible voters, which stakeholders attribute largely to loosening restrictions on who could request an absentee ballot amid the COVID-19 pandemic.
Tennessee voted for the Democratic presidential ticket of Bill Clinton and Al Gore in 1996, but then backed George Bush and Dick Cheney in 2000. Democrats controlled the governor’s office and maintained a majority in the state House until 2008, which stakeholders say prevented Republicans from passing stricter voting laws.
The balancing act of ballot access versus election security has been a foundational policy discussion in the United States for generations. But Tennessee and the rest of the nation saw a civic engagement experiment play out in real time during last year’s election where a record 160 million people cast ballots in the presidential election.
Whether by legislation, through the courts or administrative action by the executive branch, states expanded which voters could ask for an absentee ballot. Tennessee was one of just five states that restricted which voters could request absentee ballots during the pandemic for the November election. Only those with preexisting conditions that made them susceptible to COVID-19 could request ballots. In response, the number of voters choosing to mail in their ballots instead of voting in person exploded from 1.8% in 2018 to 12.9% last year.
Lisa Quigley, chief of staff for U.S. Rep. Jim Cooper and a vocal critic of Tennessee’s restrictive voting laws, said the increase in absentee voting, without any evidence of voter fraud as a result, proves the state’s limits on who can request an absentee ballot are too restrictive.
Previously, military members, voters with health conditions so severe they are confined to hospital beds, and residents living temporarily overseas could ask for absentee ballots.
“We saw an expansion of absentee voting, and the boogeyman we’d been told would lead to widespread fraud never emerged,” Quigley said.
Despite Trump’s claims that the election was rigged and fraudulent, the Cybersecurity and Infrastructure Security Agency, a broad coalition of top government officials and election experts, assessed the 2020 election as “the most secure in American history.”
Taking aim at absentee voting
In Iowa, more than 1,697,000 voters set a record-breaking turnout in the 2020 general election, with over 1 million of those Iowans voting absentee.
“This was an election like no other and everyone stepped up,” Iowa Secretary of State Paul Pate, a Republican, said in a November statement. “Record turnout during a pandemic is an amazing achievement and overall, the process went very smoothly in Iowa.”
But on March 8, Gov. Kim Reynolds, a Republican, signed a controversial election bill into law, making Iowa one of the first states to pass voting restrictions after the 2020 election. The legislation changes many of the state’s current election laws, including the procedure for requesting and submitting an absentee ballot, a hard cutoff for receiving those ballots and more stringent rules for Iowans who choose to drop off an absentee ballot in person.
Kent Syler, a political science professor at Middle Tennessee State University, predicted that Republicans will continue to push such bills in the name of election integrity, and it will be incumbent on state and federal courts to determine if any of the measures go too far.
“These new voting laws are going to be a real test of the separation of powers, and the checks and balances of our constitutional rights,” Syler said. “You can almost bet that politicians, who oddly enough get to set their own rules for elections, by and large are going to go as far as courts let them. It ultimately will be the courts that stop this or let it continue to go.”
In particular, Republican-led legislatures have set their sights on curbing absentee voting after Trump and GOP leaders bashed the practice of mail-in ballots. According to the 2020 Survey on the Performance of American Elections by MIT Professor Charles Stewart III, nearly 46% of ballots were mail-in or absentee, compared to about 28% of voters who voted in person on Election Day. The balance were voters who cast ballots early in person.
Around the country, lawmakers have responded with a cavalcade of legislation:
- In battleground Wisconsin, a trove of bills aims to regulate how absentee ballots are delivered, restricts periods of in-person voting and absentee voting, prohibits election clerks from sending absentee ballots en masse, cracks down on when and where ballots can be dropped off, bars officials from providing absentee ballots without request and photo ID on file, and limits who could return ballots for an indefinitely confined voter to just immediate family.
- A Republican lawmaker filed a bill which would have essentially done away with Colorado’s universal mail voting system. Voters currently receive a ballot in the mail, which they can return by mail or by placing it in a dropbox. Or, they can choose to vote in person, as a relatively small number of Coloradans do. Republican Sen. Paul Lundeen’s bill, which failed in February, would have required all voters to vote in person unless they specifically requested an absentee ballot.
- In Kansas, a bill would move up the deadline for when mailed ballots must be received to Election Day. Currently, the deadline for a by-mail ballot to be received and counted is three days after the election (usually a Friday). The proposed measure would end the three-day buffer. It also means 32,000 ballots in last year’s election would have been thrown out, according to voting rights advocates.
- An Arizona bill would require early voters to include proof of identification with their ballots in a state where last year 2.3 million voters cast early ballots. A failed bill would have purged voters from the state’s Permanent Early Voting List if they didn’t vote early in two consecutive elections.
Said Hughey: “I think you see a country wrestling with whether voting is a right or a privilege. Of course we know it’s a right. When you offer people a safe and convenient way to vote, people use it. We had expanded access to absentee ballots. We had the system that allowed eligible Tennesseans to cast their ballots in a way that is safe and secure. We know that’s what people want.”
Syler, who also worked as chief of staff to former U.S. Rep. Bart Gordon, a Tennessee Democrat, said it is tricky drawing direct correlation between Tennessee’s drop in turnout and its voting laws. He pointed out that, among other factors, Tennessee has had precious few competitive statewide races and is no longer the swing state it once was for presidential elections.
Democrats wanting to expand voting rights and Republicans wanting to enforce stricter rules that in some cases makes voting more difficult is a longstanding dispute, he said.
“It’s always been an ongoing cause of friction between the two parties,” Syler said. “I don’t know that it’s ever been as strong a difference as there is right now. All the efforts we’re seeing in 2021 by Republicans trying to pass new laws limiting some types of voting, is a direct result of the polarization that we’ve experienced in the country. And it’s largely a result of Donald Trump’s false claims that he was cheated out of the election.”
Syler said he believes that Republicans, even in safely red states, are pushing such bills to be able to show conservative voters they are seeking to address an issue that Trump singled out as important.
“We tend to live in districts now that are either red or blue, and most of those districts are decided in party primaries,’’ he said. “The Republicans, many of them, live in red districts where really all they worry about is a primary. And they know the vast majority of Republican primary voters believe that Donald Trump was somehow cheated out of the presidential election. So a lot of these bills are in response to that. It’s generally easy red meat.”
Voter ID law limits turnout, critics say
In Tennessee, Quigley frequently gives a powerpoint presentation to civic groups mapping out what she calls an attack on voting rights. The battle ramped up when Tennessee passed a law requiring voters to present a government-issued ID in order to vote. After it took effect in 2012, the legislature then tightened the law, banning residents from using an out-of-state driver’s license.
At the time, proponents cited election security for the measures which put Tennessee among five states with the strictest ID laws in the country. Any voter without an ID is provided with a provisional ballot and must return within two days with a government ID for their vote to count.
Quigley said the voter ID law disproportionately impacts college students, senior voters and poor voters.
“You have a college student at Vanderbilt who has a license from Michigan or whichever state, and you’re effectively taking away their ability to vote by putting up this loophole about which ID is OK to use,” Quigley said.
A group of Tennessee college students challenged the voter ID law, but that lawsuit was dismissed by a federal judge in 2015.
Quigley has been especially critical of a component of Tennessee’s ID law that requires any voter seeking an absentee ballot to have voted in person, and shown their government issued ID, or made a special trip to the election commission to provide the ID. She said that law demonstrates the arbitrary hurdles that made absentee voting especially difficult amid the pandemic.
The Minnesota Senate GOP caucus has introduced and held hearings on measures like a voter ID bill which would require identification for voters to register and vote at the polls. A Senate committee advanced the measure along partisan lines, but not before a heated exchange between Minnesota Secretary of State Steve Simon, the state’s top elections official, and the committee chair.
Simon pushed back against the measure, saying it contributes to the mistaken belief that widespread voter fraud cost Trump the election. State Sen. Mary Kiffmeyer, R-Big Lake, who chairs the committee, objected to Simon’s testimony, saying she took offense that he cast “aspersions” on Republicans’ motivation for supporting the bill.
In response to Tennessee’s photo ID law, voting rights activism has increased. The Equity Alliance and ThinkTennessee are among the nonpartisan, nonprofit groups that have advocated for less restrictive laws. The groups have filed suit over absentee voting and photo ID laws as well as sought to make it easier for felons to restore their voting rights in Tennessee.
According to research by ThinkTennessee, the state has a higher rate of people banned from voting than 47 states. Tennessee is the only state that includes payment of child support as a qualification for restoring voting rights, according to the group’s research.
Over 421,000 eligible voters in Tennessee are unable to vote because of the restoration process, Hughey said.
Battle boils over in Georgia
The battle over voting laws has been especially heated in Tennessee’s neighbor Georgia, the red state-turned-swing state in 2020. After Democrats won the presidential election and then both U.S. Senate seats in a January runoff, Republican lawmakers filed a string of bills under the “Election Integrity Act of 2021” to pass laws that largely mirror Tennessee.
While Georgia Republicans touted the legislation as an expansion, pointing to permanent absentee drop boxes and an extra weekend voting day, they also imposed an ID requirement to vote by mail among other measures. Gov. Brian Kemp signed the sweeping measure into law last week, with opponents quickly filing suit in federal court in response.
“We know that these laws are all aimed at disenfranchising Black voters and also young voters,” attorney Marc Elias, who along with several Georgia advocacy groups filed suit Thursday, said during an interview on MSNBC’s “Rachel Maddow Show.” “The role of the courts are to protect fundamental rights when politicians fail them and right now, Republican politicians around the country are failing voters and failing Democracy and we have to turn to the courts.”
Kendra Lee has a unique perspective on the link between Tennessee’s voting laws and the push for such reforms in Georgia. She serves as the policy director at the Tennessee Equity Alliance, a nonprofit organization that seeks to equip citizens with tools and strategies to engage in the civic process and empower them to take action on issues affecting their daily lives. Before her current role, Lee served as a training manager for U.S. Sen. Jon Ossoff’s campaign in Georgia.
Lee pointed out that Tennessee has the bandwidth to expand voter registration. After she applied for a handgun carry permit, Lee automatically received voter registration documents with her appropriate information already filled in even though she is already registered to vote. Lee said if the state can provide such documents for handgun permit holders, it should be able to when citizens interact with other state agencies. Lee said her organization has a problem with Tennessee’s voter registration law, which requires a voter to register at least 30 days before an election in order to be eligible.
The goal, Lee said, should be for Tennessee to see its voter turnout rate increase from 44th in the nation. She said her concern is that other states, especially Georgia, will be following down a similar path as Tennessee.
“We shouldn’t infringe on anything that makes it harder to cast a ballot,” Lee said. “It’s just another hoop to jump through. There’s no rationale behind the very arbitrary law to submit it in 30 days.”
H.R. 1 seeks to address issues
In response to Republican-backed legislation, Democrats in Congress have kicked off President Joe Biden’s term with a push for sweeping election reforms under the For the People Act.
The bill, which has passed the House but doesn’t have the bipartisan support necessary to clear the Senate, would implement automatic voter registration, restore felons’ voting rights, prohibit voter roll purges and allow voters to sign affidavits, under penalty of perjury, attesting to their identities in the event they do not have a government issued identification. Tennessee’s Secretary of State Tre Hargett and elections administrator Mark Goins signed a letter opposing the legislation.
Democrats are committed to the legislation to the point they have pondered altering Senate filibuster rules so that it could pass with less than the 60 votes it currently needs.
Quigley, the top adviser to Cooper, the Nashville Democrat, said the For the People Act is a necessary policy step to prevent the kinds of laws that Tennessee has put in place.
“What you’re talking about is common sense reforms to give voters access to the election process and remove those barriers that have historically made it harder on poor, black and disenfranchised individuals,” Quigley said.
Reporters Katie Akin of the Iowa Capital Dispatch, Melanie Conklin of the Wisconsin Examiner, Ricardo Lopez of the Minnesota Reformer, John McCosh of the Georgia Recorder, Faith Miller of Colorado Newsline and Noah Taborda of the Kansas Reflector contributed to this report.
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