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Voting rights: The historic and ongoing skirmishes

By Lisa Brody

Depending on your point of view, the 2020 general election was the most secure in history, or rife with fraud, bringing forth illegitimate results, at least at the presidential level. According to a survey done by Public Policy Polling, released on July 31, 2021, 56 percent of those polled in Michigan think the 2020 presidential election results were legitimate, while 36 percent – over a third of those asked – currently do not, and eight percent aren't sure.

To voters and politicians, where you stand is based on perspective, and whether your guy won. Around the country, the yoke of the 2020 election is likely to tether the 2022 election to it, reminding voters of the past as they try to move forward. For some candidates, that will aid them in their efforts to get elected. For others, it could be an anchor that drowns them.

In efforts to prevent voter fraud – or suppress the public's right to vote, depending on your vantage point – around the country efforts have been underway by 17 Republican-controlled state legislatures in states around the country, notably the swing states of Georgia, Texas, Arizona and Michigan, to create and enact election laws which will change election laws, from bills proposing new voter ID requirements to adding signature verification for those voting in-person and permitting an election challenger for every person on a ballot – which could number in the dozens for a general election, well outnumbering poll workers. In Michigan, where the governor has announced she will veto any of the voter supression bills that come to her desk, Republican leaders are intent on mounting citizen-led initiatives to avoid her pen. Can the national voting rights bill – HB1, the For The People Act – be passed to countermand these state bills, or is it a necessary step when elections are conducted by local clerks and overseen by states?

According to the Merriam-Webster Law Dictionary, the legal definition of voting rights is the right to participate in public elections, one enshrined in the Constitution. The Voting Rights Act of 1965 aimed to overcome legal barriers at the federal and state levels that had prevented African Americans from exercising their right to vote under the Fifteenth Amendment to the Constitution, passed in 1870, after the Civil War. The Fifteenth Amendment guarantees that the right to vote cannot be denied “on account of race, color, or previous condition of servitude.” In some southern states which had been part of the Confederacy, Blacks became a majority or near majority of the eligible electorate, and even ran and served in many local and state offices for a short while.

Despite the amendment's passing, there remained strong opposition to the extension of voting rights to African Americans, and by the end of Reconstruction in 1877, the U.S. Supreme Court limited voting protections under federal legislation. Intimidation, fraud, poll taxes, literacy tests, Whites-only primaries and other tactics were used to disproportionately disenfranchise Blacks from voting. The result was that by the early 20th century nearly all African Americans were disfranchised. In the first half of the 20th century, several such measures were declared unconstitutional by the U.S. Supreme Court. In 1915, for example, grandfather clauses were invalidated, and in 1944, Whites-only primaries were struck down. Nevertheless, by the early 1960s voter registration rates among African Americans were negligible in much of the Deep South and well below those of Whites elsewhere,” noted Brittanica. In 1915, grandfather clauses were invalidated by the Supreme Court, and in 1944, Whites-only primaries were struck down.

The Voting Rights Act of 1965 is considered among the most far-reaching pieces of civil rights legislation in U.S. history, suspending literacy tests, providing for federal approval for proposed changes to voting laws, and permitting the attorney general to challenge the use of poll taxes. In the 1970s, the act was expanded to protect the rights of non-English speaking U.S. citizens. The act resulted in a marked decrease in the voter registration disparity between White and Black people.

Yet, in the last decade or so, rulings by the Supreme Court have weakened the Voting Rights Act, in the belief of Democrats and other voting rights advocates. In addition, according to the Brennan Center for Justice, just this year alone, 18 states across the country have enacted more than 28 laws that will make it more difficult for Americans to vote, which they categorize as restrictive if they would make it harder for Americans to register, stay on the rolls, and/or vote, as compared to existing state law.

“Indeed, at least 61 bills with restrictive provisions are moving through18 state legislatures. More specifically, 31 have passed at least one chamber, while another 30 have had some sort of committee action (e.g., a hearing, an amendment, or a committee vote),” said a memo from the Brennan Center. “Overall, lawmakers have introduced at least 389 restrictive bills in 48 states in the 2021 legislative sessions,” including a 39-bill legislative package in the Michigan Senate. Which is why the Brennan Center and other progressives believe the For the People Act (HB1) should be passed.

“Americans’ access to the vote is in unprecedented peril. But Congress can protect it. The For the People Act, passed by the House and now awaiting action in the Senate, would block many of the state-level restrictions that have been or may soon be enacted into law,” stated the Brennan Center memo.

“I do think it's important for HB1 to be passed. It's important to have every tool in our tool belt, and it's important to have that at the federal level,” said Merissa Kovach, policy strategist, ACLU.

The For the People Act, introduced in the House of Representatives in March 2021, expands voter registration via automatic and same-day registration and voting access (vote-by-mail and early voting). It also limits removing voters from voter rolls. The bill requires states to establish independent redistricting commissions to carry out congressional redistricting. Additionally, the bill sets forth provisions related to election security, including sharing intelligence information with state election officials, supporting states in securing their election systems, developing a national strategy to protect U.S. democratic institutions, establishing in the legislative branch the National Commission to Protect United States Democratic Institutions, and other provisions to improve the cybersecurity of election systems. It also addresses campaign finance, including by expanding the prohibition on campaign spending by foreign nationals, requiring additional disclosure of campaign-related fundraising and spending, requiring additional disclaimers regarding certain political advertising, and establishing an alternative campaign funding system for certain federal offices.

The For the People Act addresses ethics in all three branches of government, including by requiring a code of conduct for Supreme Court justices, prohibiting members of the House from serving on the board of a for-profit entity, and establishing additional conflict-of-interest and ethics provisions for federal employees and the White House. The bill requires the President, the Vice President, and certain candidates for those offices to disclose 10 years of tax returns. Among its sponsors are Rep. Haley Stevens (D-Birmingham, Bloomfield Hills), Brenda Lawrence (D-Southfield, Detroit, West Bloomfield), Elissa Slotkin (D-Rochester, Rochester Hills, northern Oakland) and Dan Kildee (D-Flint). It was unanimously supported by all of the chamber's Democrats, and none of its Republicans. At this point, it is stalled in the Senate and unlikely to pass.

“Yes, it's necessary. It's the most important civil rights act since the '60s,” said Wambui Gatheru, interim director of programs, Andrew Goodman Foundation. “It would make it much harder for state legislatures to justify these voter suppression tactics. It would make voting a protected right. I would love to see it passed in my lifetime. It would make so many common sense voter engagement issues laws.”

Alberto Medina, communications team leader at The Center for Information & Research on Civil Learning and Engagement (CIRCLE) at Tufts University, said, “Our research has found that what we call 'facilitative election laws' which make it easier to register and vote, are indeed correlated with higher youth voting. Specifically, in 2020, we found that states with four or more of the policies in HR1 (automatic voter registration, online voter registration, same-day registration, early voting, no-excuse absentee voting, pre-registration, and requirements for voter registration programming in high schools) had a combined youth turnout rate of 53 percent, compared to 43 percent turnout from states with less than four of these policies.

“It should be a central goal and tenet of our democracy for voting to be equally easy and accessible everywhere,” Medina continued. “Currently, differences in voting laws, combined with differences in the geographic distribution of people of color, for example, can create disparities that prevent all communities from being equal participants in democracy. Whether through HR1 or through other means, that’s a problem we should all care about and work to address.”

“The freedom to vote is the backbone of our democracy and the one action that stands between us and autocracy,” said Dr. Deborah Turner, board president, League of Women Voters. “The U.S .Senate once again failed to deliver on the For the People Act, the legislation that the American people want to strengthen our democracy and ensure the freedom to vote for all Americans. Laws have passed in nearly half the country that make it harder for Americans to vote. This federal bill is one solution to set national standards that open access and encourage individual participation in the electoral process.”

But HB1 is not universally welcomed by all experts.

“I'm opposed to it because I don't think you should federalize states' decisions. There are issues within HB1 that it will be overturned,” said GOP political consultant Dennis Darnoi, Densar Consulting, noting for example the provision for all states to have non-partisan redistricting commissions, which he believes “this Supreme Court would strike it down. Same with fees to have corporations and banks fund all publicly-funded elections. I don't think it's a good idea, and I don't think it would pass constitutional muster. Much like the bills here in Michigan, HB1 as it is written has no chance of passing. It cannot move through the Senate without reconciliation, will not beat a filibuster, and two Democrat Senators will not vote to get rid of the filibuster, or even support the bill.

“If this Congress was serious about voting rights, they would pick the points that could pass and get that done. I don't believe they're serious,” Darnoi said.

Several of the proposals in the national bill are already enshrined in Michigan's Constitution, thanks to the overwhelming passage of Proposal 3 of 2018, called “Promote the Vote.” Proposal 3 passed with 67 percent approval across the state, allowing all registered voters no reason absentee ballots, protection of the right to a secret ballot, automatically registers citizens to vote at the Secretary of State’s office unless the citizen declines, allows a citizen to register to vote anytime with proof of residency, ensures the accuracy and integrity of elections by auditing election results, allows for straight-party voting, ensures military service members and overseas voters can obtain ballots, and allows for same-day voter registration. In addition, Proposal 2 of 2018, a ballot initiative that set up an independent citizen redistricting commission, was approved by voters by over 61 percent in an effort to end gerrymandering, and is in the midst of its first decennial citizen redistricting commission with its results due this fall.

Despite the bipartisan approvals of these citizen-led proposals, there were questions in Michigan surrounding the results of the presidential election – but not any down ballot election results. The allegations of voter fraud related to the “Big Steal” or the “Big Lie,” depending on your point of view, has led to the 39-bill election package introduced by Republicans in the Michigan legislature, a few of which have bipartisan support – but the majority of which are fiercely opposed by Democrats, and just as fiercely supported by Republicans. If passed, many are expected to be vetoed by Democratic Governor Gretchen Whitmer.

What is in the 39 bills? There are bills proposing new voter ID requirements, including a bill that proposes a strict photo ID requirement for in-person voters which no other state requires, according to the National Conference of State Legislatures. Other bills would require voters to include their drivers license or state ID number on the absentee ballot application, amend the voter registration process to require applicants to attest they understand it is a felony to vote more than once in the same election, issue a provisional ballot to those who don't have a photo ID, count those provisional ballots only after a voter presents a photo ID and documentation verifying his or her current address with their clerk within six days of an election, and require the secretary of state to establish rules for verifying voters' signatures.

As for ballot drop boxes, which became popular in 2020's election for absentee ballots, bills would require the secretary of state and county board of canvassers to approve ballot drop boxes that would be monitored by a camera and affixed with a sticker that says it is a felony for someone other than a voter or a voter's immediate family or household member to return an absentee ballot. Another bill would establish an earlier deadline for returning ballots via drop boxes, such as 5 p.m. the day before Election Day.

Other bills would establish rules for poll watchers and challengers, including permitting them to film the tabulation of ballots, and to require them to wear name tags. Another bill would increase the number of election challengers based on the number of ballots counted; other bills would expand the rights of election challengers to challenge the performance of election workers, the identity of a voter, sit behind the processing table and demand a written explanation for expulsion. Election challengers and poll watchers would also be able to use a phone, tablet or laptop and obtain precinct results after the polls close.

Election officials would be barred from accepting private funding for election-related activities and equipment, and federal funding for election administration must be approved by the legislature. A bill would require all local clerks to deliver election results for the election canvass by noon the day after an election.

“There are some good pieces of legislation, such as members of military being able to vote electronically, versus some pieces of legislation we believe would improve the process but they need to be improved, such as we support the concept of preregistering 16 and 17-year-olds to vote, but not as it's written, or authorizing a timeline for entering death records into the Qualified Voter Records,” among other bills, said Cheryl Rottman, city clerk, city of Madison Heights and president, Oakland County Clerks Association. She said the clerks met as a whole and voted and passed a resolution as a whole indicating their position on the bills.

Regarding remote drop boxes, she said the way the bill is written, clerks have an objection. “It's redundant, but it allows a mail carrier to bring mail and who knows what their chain of custody is,” she pointed out.

As for the desire of lawmakers to modify the number of challengers in absentee ballot counting board, who would be appointed by the party, Rottman said, “We don't mind if they want to change the number, but how it is written, it's too many. It could be more than the number of election workers. The space could be too small (to accommodate everyone). It could be chaotic and infringe upon the work being done.”

As for the 2020 election, the clerks support permitting municipalities of greater than 25,000 to preprocess absentee ballots the day before – “We support that wholeheartedly” – but would like to include municipalities of all sizes, as small municipalities are often short staffed. “We would like more time, we would like to have the ability to pre-tabulate, and we would like to include all communities,” she said.

A bill requiring signature matching by clerks and precinct workers, and to require the secretary of state to have objective signature matching, she said, is only partially supported. “Oakland County Clerks Association supports having clerks be trained in signature matching but not precinct workers, because they only work once or twice a year, and they would be put in the position of having to do that while their friend or neighbor is in front of them, telling them their signature doesn't match. It's too much to ask of precinct workers. It is important for clerks and those processing absentee ballots,” Rottman said.

“Some of the bills we oppose because we feel they'll hinder the work of elections, create more work, unnecessary paperwork, create unfunded mandates and intimidate voters,” said Rottman, whose association includes Republicans, Democrats and non-partisan clerks. “All clerks want to maintain elections that are transparent, accurate and have integrity, so anything that will help that we'll possibly support, but many of these other bills are not designed to do that. We want people to have easy access. It should be easier to vote rather than harder.”

State Sen. Mallory McMorrow (D-Royal Oak, Birmingham, Bloomfield Hills, Rochester Hills) said that after the 2020 election, “many clerks, both Republican and Democrat, testified to us that what they needed was more time to count absentee ballots because of Proposal 3 – even before the pandemic, they said the more time there is to wait for results, the more doubt there is seeded into the process. That was what was asked, and the legislature did not support them with a passed bill. In the 2020 election, Michigan came back fairly quickly, at least compared to some other states – but not immediately like we've been used to. When that happened, the Republican-majority rolled out this 39-bill package.”

McMorrow noted that some, although not all, of the bills are “identical bills with identical language in other states, with identical language the Heritage Foundation put out. It's just ironic because the Heritage Foundation keeps statistics for all the states, and for Michigan, from 2007 to today, there have been a total of 12 cases of voter fraud – total.

“It's ironic because no one asked for these bills and they create more hurdles to voting,” she said.

The Heritage Foundation is a Washington D.C.-based conservative think tank.

Darnoi, the GOP political consultant, has noticed the same thing.

“I truly believe this whole attempt to suppress voters rights is being driven at a very high level,” he said. “Why does the language in Michigan look eerily similar to Texas, Arizona and Georgia? Why are the party chairs using the same language that these bills use to make it easier to vote and harder to cheat? Because there is a larger group of national conservatives that are promoting this cause, largely through dark money groups, through 501(c)4s. Michigan happens to be caught up in that national movement, though Michigan is not as conservative as Arizona and Florida. It may work in Arizona, but it may not work in Michigan because voters are not as conservative.”

“A lot of the election security bills allow for more options than existed before the pandemic,” countered John Truscott, CEO, Truscott Rossman. “Its opponents are arguing that we should just continue acting like we're in a pandemic environment forever. The fact is, it's really easy to vote and submit it in Michigan. About 75 to 85 percent of Michigan residents support a government-sponsored ID or driver's license. If a college ID isn't accepted, well a college ID is really easy to duplicate.”

McMorrow disagrees, noting that requiring picture ID actually impacts seniors most, because “so many surrender their driver's licenses or don't renew them, and do not get a state ID.”

“Anyone will need a state ID to conduct business, whether if it involves state government or social services,” countered Truscott. “This is not a burden or a hardship.”

“Voting IDs are fine, but anything that makes IDs more difficult is the issue,” said Edie Goldenberg, professor of political science, Gerald R. Ford School of Public Policy, University of Michigan. “Signature matches are difficult because they're not always consistent. For young voters, they don't know cursive, they don't sign checks, they don't sign their names. If a state doesn't accept a college ID, when college IDs are accepted all over, that's a problem for young people. In some states, like New Hampshire, they require only a New Hampshire driver's license. Some states are requiring a notary to approve a signature. It's not that IDs are bad – it's wh