Transcript: Greetings, and welcome back to the Highest Court Report podcast. As always, I’m your host Conor, thank you for joining me yet again. Today, let’s take a look at voting rights a bit. Republican state legislatures have, with surgical (albeit racist and obnoxious) precision systemically introduced voting suppression resolutions, nearly 300 country wide as of mid-March, around the country. So today, let’s take a look at what to expect going forward. This is episode 5: No Votes for You.
President Joe Biden is the first Democratic presidential candidate to win the state of Georgia in nearly three decades. He’s the first Democrat to win Arizona in nearly a quarter of a century. And both of these former Republican strongholds just sent two Democrats to the United States Senate.
So it’s probably not surprising that GOP lawmakers in these states and elsewhere want to rewrite election laws to prevent Democrats from repeating Biden’s success in the future. According to the Brennan Center for Justice, state lawmakers filed “253 bills with provisions that restrict voting access” in just the first seven weeks of 2021, with more likely to come in the future.
These bills include longtime staples of conservative anti-voting legislation. Georgia Republicans, for example, appear keen to restrict or even eliminate early voting on Sundays in that state. Why target Sunday? The most likely explanation is that Black churches frequently hold “souls to the polls” voter turnout drives on Sundays leading up to the election, so eliminating Sunday voting makes it less likely that Black Democrats will cast a ballot.
But Republicans in states like Georgia and Arizona also have a new target — they hope to limit or even abolish mail-in voting. According to the Brennan Center, lawmakers in Arizona introduced at least 11 bills that seek to restrict absentee voting in 2021 alone.
This new focus on mailed ballots likely stems from the fact that Democrats were much more likely to vote by mail than Republicans in 2020. An August 2020 poll conducted by five political scientists found that “half of all Democrats said they want to vote by mail this election, while only a quarter of Republicans said they would.” In Pennsylvania, Democratic voters were nearly three times more likely to vote by mail than Republicans. In Texas, voters who cast mail-in ballots were about 150 percent as likely to have recently voted in a Democratic primary as they were to have voted in a Republican primary.
It’s likely that this gap emerged in 2020 because then-President Donald Trump spent much of the year railing against mail-in voting, often fabricating lies about widespread voter fraud in mailed ballots. These lies undoubtedly influenced many Republicans to cast their votes in person.
Before 2020, however, there was little evidence that greater access to voting by mail benefited either party. As political scientist Lee Drutman wrote last May, “as states have expanded their use of mailed ballots over the last decade — including five states that conduct all-mail elections by default — both parties have enjoyed a small but equal increase in turnout.”
Indeed, it’s far from clear that restricting voting by mail will actually shift the overall electorate toward the GOP. A new study by Stanford University’s Democracy and Polarization Lab compared 64-year-old Texas voters to Texans who are just a year older — Texas has an unusual law that allows citizens over the age of 65 to easily vote by mail, but doesn’t permit voters under 65 to do so. The study found that “the proportion of voting 65-year-olds who were Democrats in Texas in 2020 … was only slightly larger (0.2 percentage points) than the proportion among voting 64-year-olds, despite the much larger rate of absentee voting among 65-year-olds.”
That suggests that restricting absentee voting will only have a marginal impact on partisan turnout rates, if it has any impact at all.
Republicans have not yet rallied behind one plan to limit mail-in voting. In Georgia, state House Speaker David Ralston, a Republican, said that “somebody’s got to make a real strong case” to convince him to bar many Georgians from voting absentee — though the state House recently passed lesser restrictions on absentee voting. A memo co-authored by Democratic campaign consultant Dylan Sumner and Republican consultant Mark Zubaly argues that broad access to voting by mail “benefits both parties, and both should push laws that make vote by mail more accessible.”
Republican pollster Patrick Ruffini offered a similar view on Twitter shortly after the 2020 election.
But many Republican lawmakers appear to be betting that Democratic voters will continue to be more likely to use mail ballots, and that making it harder to vote by mail will make it less likely that Democrats will vote.
These Republicans, in other words, appear quite eager to enact new voting restrictions even if there’s only a chance that doing so will benefit the GOP. And that’s terrible news for democracy, even if it doesn’t turn out to be a significant burden on the Democratic Party.
The US House recently passed an ambitious voting rights bill that would arrest many of these attempts by state lawmakers to limit the franchise, but this bill has little chance of becoming law unless Senate Democrats unite to reform the filibuster to enable voting rights legislation to pass by a simple majority vote.
The question of whether Republican state lawmakers will succeed in restricting the franchise rests largely with conservative Democrats like Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ), who have thus far been unwilling to abolish the filibuster (although Manchin recently expressed openness to weakening the filibuster without eliminating it).
State lawmakers have introduced a variety of bills seeking to make it harder to vote, and these bills cover a wide range of topics. At least 18 states have bills that would impose stricter voter ID requirements on voters, for example, including an Arizona bill that would require voters to show one of a short list of government-issued photo IDs in order to vote.
Voter ID laws are a common voter restriction favored by many Republicans. Proponents of such legislation claim it helps prevent voter fraud at the polls, but this kind of fraud is so rare that it is virtually nonexistent.
Similarly, many states are considering legislation that will make it harder to register to vote, including a Georgia bill that would end automatic registration of eligible voters who apply for a driver’s license in the state. And at least 12 states have bills that “would expand voter roll purges or adopt flawed practices that would risk improper purges,” according to the Brennan Center.
It’s likely that Republican lawmakers would have introduced these sorts of bills regardless of what happened in the 2020 election. The Supreme Court gave the green light to voter ID laws in 2008, and it permitted at least some forms of voter purges in 2018. So state lawmakers had a fair amount of leeway to restrict voting long before the pandemic led millions of Americans to vote by mail for the first time in 2020.
The new element in 2021 is an array of bills seeking to restrict voting by mail.
Currently, at least 34 states and the District of Columbia either mail a ballot automatically to all registered voters in the state, or allow any voter to request an absentee ballot without having to explain why they want one — this latter category of states are known as “no excuse” absentee voting states. Arizona and Georgia are both no-excuse states, so they do not provide mail-in ballots automatically to all voters, but any voter can request one.
At least nine states currently have bills that would either eliminate no-excuse absentee voting or make existing limits on who can vote absentee stricter. An Arizona bill would permit absentee voting “only if the elector is physically unable to cast a ballot within the period for early voting, or has a physical disability, is confined to a nursing home or other similar facility, is on military duty or is temporarily residing outside the state.” A similar bill in Georgia would prevent most new Georgia voters from voting by mail unless they are overseas, or elderly, or have a disability.
Some state bills make it harder to sign up for or remain on a state’s permanent absentee voter list — a list of voters who automatically receive their ballot in the mail every election without having to reapply. An Arizona bill would eliminate the permanent list entirely within that state.
Other bills impose burdensome obligations on absentee voters, such as an Arizona bill that would require all ballots returned by mail to be notarized, or a Georgia bill that forbids election officials from collecting absentee ballots in drop boxes.
It’s still early in the year, so it remains to be seen just how many of these bills will be signed into law. But there’s good reason to believe that at least some of them will be enacted. Last week, for example, the Georgia House passed a lengthy elections bill that eliminates most Sunday voting (although counties have the option of allowing Sunday voting on one weekend), imposes voter ID requirements on absentee voters, and drastically limits the use of drop boxes to collect ballots. It would also ban “line warming,” where volunteers offer water, chairs, and other items to voters waiting in line.
The state Senate version of this bill, which passed on Monday, is even more restrictive of voting rights. Among other things, it would end no-excuse absentee voting.
It’s worth noting that this latest round of restrictive voting bills does not include what is likely to be the most important election-related issue debated by state legislatures in 2021: redistricting. The Constitution requires states to redraw their congressional and state legislative districts every 10 years, to account for population shifts. But the census is not expected to release the data needed to draw such maps until late September. So, an inevitable fight over gerrymandering in many states will have to wait until the fall.
There’s quite a bit of evidence that increased access to mailed ballots did not favor either party prior to the 2020 election. A June 2020 study by four Stanford University researchers, for example, is titled “Universal vote-by-mail has no impact on partisan turnout or vote share,” and this study is fairly typical of the scholarship in this space.
That study finds that in states which automatically mail a ballot to every registered voter, voting by mail “modestly increases participation while not advantaging either party.”
Yet most — but not all — of this scholarship studied voter behavior before Trump spent much of 2020 falsely accusing Democrats of using mail-in ballots to “steal an election.” And there is some evidence that Trump’s lies may have a lasting effect on how partisans view voting by mail.
A January 2021 paper by the Covid States Project, a joint project by Harvard, Northeastern, Northwestern, and Rutgers universities, found that “Republicans were much more worried than Democrats about mail-in voter fraud (80% vs. 32%).” It also highlighted a slightly older survey finding that Democrats are much more likely than Republicans to support increasing access to mailed ballots.
So it’s entirely possible that Democrats will continue to use mailed-in ballots at higher rates than Republicans in upcoming elections. And that means that Republican attempts to limit access to such ballots could wind up giving a partisan advantage to the GOP.
Republican lawmakers who hope to restrict voting by mail face some risks if they do so. The Sumner-Zubaly memo argues that “the decisive factor” allowing Biden to win Arizona in 2020 was “Republicans abandoning no-excuse vote by mail.”
“When Republicans decided to abandon a voting method designed to make it easier for their (overwhelmingly older) base to vote,” the memo claims, “vote by mail in Arizona went from just another way to get votes to a Democratic windfall.”
Other research suggests that, while restricting absentee ballots might make voting less convenient for many Americans, it won’t actually benefit the GOP because voters will just cast their ballots in person.
As mentioned above, Texas is one of a handful of states that discriminate on the basis of age when determining who may vote absentee: Voters over the age of 65 are allowed to request an absentee ballot, but most voters under that age are required to vote in person. The researchers at Stanford’s Democracy and Polarization Lab compared turnout rates among 65-year-olds in Texas’s 2020 elections — that is, among voters who were eligible to vote absentee — to the turnout rates among 64-year-olds who mostly could not vote by mail.
They found that “65-year-olds in Texas turned out in 2020 at almost exactly the same rate as 64-year-olds, even though roughly 18% of 65-year-olds voted absentee while only 3% of 64-year-olds voted absentee.”
While absentee voting among 65-year-old Texans did increase in 2020, that increase was offset by less in-person voting by voters in the same age cohort. The result was that, even though Democrats were more likely to vote absentee than Republicans, turnout among 65-year-old Democrats was only marginally higher than it was among 64-year-old Democrats. The “proportion of voting 65-year-olds who were Democrats in Texas in 2020” was only 0.2 percentage points higher than the “proportion among voting 64-year-olds.”
Thus, while this study suggests that Democrats were more likely than Republican to vote by mail if given the opportunity to do so, it does not suggest that Democrats are significantly more likely to vote if they can cast an absentee ballot. As David Shor, a Democratic data guru and veteran of the 2012 Obama campaign stated “Even though Covid made Democrats use vote-by-mail at higher rates, in-person voting declined by the same amount and the overall effect on the partisan composition of the electorate was null.”
Indeed, according to Shor, Trump slightly overperformed in states that saw the sharpest rises in voting by mail during the 2020 election. “If you look at the seven states that went from having very little vote by mail to having massive amounts (AL/CT/MO/MS/NJ/NY/PA),” Shor wrote, “they trended about 0.2% toward Trump relative to the other 43 states.”
Shor emphasized that more research needs to be done on the impact of voting by mail on partisan turnout. “There’s going to be more complex econometric analysis down the road,” he told me.
But his sense that states probably can’t change the partisan makeup of the electorate by making it harder to vote by mail was shared by Charles Stewart, a political scientist at MIT.
In any event, more research needs to be done to determine with any amount of certainty whether liberal vote-by-mail regimes favor Democrats. But the research that does exist suggests that efforts to restrict absentee voting may not wind up benefiting the GOP. Such legislation may make voting more inconvenient for many Democrats, but that does not mean that those Democrats won’t vote in person.
All that said, restricting the franchise will make it more difficult for many Americans to exercise their most important right, the right to vote.
The 2022 midterms are more than a year and a half away, so state lawmakers still have plenty of time to enact voting restrictions that go far beyond anything that’s currently on the table in places like Georgia and Arizona. And there’s a significant chance that the Supreme Court, with its 6-3 Republican majority, will give state legislatures more authority than they’ve had in the recent past to place obstacles in the way of Democratic voters.
Last week, the Supreme Court heard oral arguments in Brnovich v. Democratic National Committee, a major Voting Rights Act case that could strip away many federal safeguards against racist election laws. In Brnovich, both a legal team representing the Arizona Republican Party and Arizona’s Republican Attorney General Mark Brnovich asked the Court to embrace such a narrow reading of the Voting Rights Act that federal law would effectively no longer provide meaningful protection against race discrimination in elections.
In fairness, several key justices appeared unlikely to go that far during Tuesday’s oral argument, but the case is still a looming threat to voting rights (a decision is likely to be handed down in June). And if the Court does narrow the Voting Rights Act significantly, then Republican lawmakers could gain broad new powers to target Black and brown communities that tend to vote for Democrats.
A second, potentially even greater threat to voting rights is a legal doctrine, embraced by at least four members of the Supreme Court, known as the “independent state legislature” doctrine.
This doctrine, which the Supreme Court rejected in a long line of cases stretching back more than a century, provides that state legislatures get to decide how a state conducts federal elections, potentially at the expense of state governors and a state’s judiciary. As Justice Neil Gorsuch wrote in an opinion last fall, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
In its most extreme form, the independent state legislature doctrine forbids governors from vetoing state laws governing federal elections (because the governor is not the legislature), and it forbids state courts from enforcing state constitutional safeguards against voter suppression (because a court is not the legislature).
It’s unclear whether the Supreme Court will embrace this most extreme form of the doctrine — indeed, it’s not at all clear if there are five votes to implement this doctrine in any form. Currently, four justices have endorsed it, while four others have indicated that they will not overrule the long line of cases rejecting the independent state legislature doctrine. The fate of the doctrine rests with Justice Amy Coney Barrett, a conservative Trump appointee who has yet to weigh in on whether she supports it.
Should five justices embrace this doctrine, the consequences would be profound. It could potentially prevent Democratic governors in swing states like Wisconsin, Michigan, and Pennsylvania from vetoing voter suppression laws enacted by a Republican legislature. And it could give Republican state legislatures carte blanche to draw gerrymandered maps, even in states whose constitutions forbid such gerrymandering.
The new round of attacks on voting rights generally and on voting by mail in particular, in other words, is unlikely to be the last attempt to curtail voting rights before the 2022 midterms. State lawmakers have lots of time to legislate before the next major election. And the Supreme Court could make it much easier for them to restrict the franchise in the very near future.