State of Elections

William & Mary Law School | Election Law Society

D.C. Automatic Voter Registration and Potential Steps Towards Increasing Accessibility in Voting

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By Julian Miller

In July 2022, Charles Allen, Councilmember for Ward 6, introduced a new bill. The bill was introduced as the “Automatic Voter Registration Expansion Amendment Act of 2022.” This builds on Allen’s introduction of the Automatic Voter Registration Amendment Act of 2015, which passed unanimously in 2017 (D.C. Law 21-208). This new bill would change automatic voter registration (AVR) from “front-end” opt-out automatic voter registration to “back-end” opt-out automatic voter registration, and it would add any D.C. voter who interacts with source agencies to a “preapproved for registration list.” This change would allow anyone on the “preapproved for registration list” to register to vote by showing up to vote or voting by mail. 

AVR automatically registers eligible individuals to vote when they have had an interaction with certain government agencies, most often the Department of Motor Vehicles. As of recently 12 states have included other government agencies in their AVR policies. 

AVR grew most rapidly out of the passage of the National Voter Registration Act by Congress in 1993. In doing so, the United States took steps towards making the process of registering to vote easier and more accessible by enacting certain voting registration requirements for offering voting registration opportunities at the state level. As of 2022, according to the National Conference of State Legislature, 22 states and Washington, D.C., have enacted some kind of AVR to increase voter registration. 

Front-end opt out AVR allows for an individual at certain government agencies, such as the Department of Motor Vehicles, to register or decline while at the “point of service.” In contrast, back-end opt out AVR, as the name suggests, gives the individual the option to register after “point of service.” Instead, an individual receives a notification that they will be registered to vote after their interaction at the agency. Further, if the individual does not respond to the mail and actively declines registration, the individual is automatically registered. 

In general, and also incredibly important when noting the United States history of voter suppression, AVR has proven to be most beneficial for underrepresented and underserved populations in the United States. In D.C., the recently introduced Automatic Voter Registration Expansion Amendment Act of 2022 focuses on the method in which automatic registration occurs. Charles Allen cites to the fact that Back-end opt-out AVR is seen as superior to front-end AVR by election experts. 

Proponents of the back-end opt-out AVR argue that it is: 1) more effective, 2) more efficient, and 3) more secure than front-end opt-out AVR. First, concerning effectiveness, by comparing states that employ different AVR systems researchers found that back-end opt-out systems of AVR add more voting-eligible individuals to voter rolls when compared to front-end systems. Proponents argue that the multiple steps that back-end systems employ in order to opt out make it more likely that voting-eligible individuals won’t choose to opt out. Second, the back-end opt-out AVR system is more efficient than the front-end system, as those in charge of carrying out the bulk of this registration process are state officials who have been trained and are paid to do so. Proponents argue that taking this pressure off of an individual makes AVR systems more efficient. Along the same lines, proponents argue that the state is better equipped than an individual, when taking into account language and socio-economic barriers, to know whether an individual is eligible for registration. Proponents argue that this makes United States elections more secure as government agencies have the proper toolbox to decide which individuals are eligible to vote and which are not. Therefore, the onus should be on the state to confirm an individual’s eligibility for registration by using the information they have at their disposal. 

Some opposition to AVR in general, and the preferred back-end opt out AVR in particular, is heavily partisan. For instance, those in opposition to AVR feel that its hidden intent is to benefit the Democratic party, based on the idea that individuals who aren’t registered to vote are more likely to vote Democrat. However, a 2022 AVR report by Rachel Funk Fordham found that multiple studies have found that there is no “significant partisan bias” that favors Democrats stemming from state AVR policies. Other opposition to back-end opt-out AVR argues that this could potentially register noncitizens, thereby increasing the likelihood that noncitizens are prosecuted for voter fraud.

If increased registration is what the bill intends to achieve, the empirical data shows that back-end AVR policies increase registration more than front-end policies. For example, a study in 2021 comparing both front-end and back-end AVR policies showed that the latter increased registration by 8.1 percent, as opposed to the former, which increased registration by only 2.9 percent.

The Automatic Voter Registration Expansion Amendment Act introduced in D.C. is a part of a greater effort to introduce voter-friendly legislation, making voting and registration more accessible for constituents in D.C. Most recently, this proposal had a public hearing on September 16, 2022. 

Mail-In Voting Survives in Pennsylvania

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By William & Mary Law Student Contributor

Voting right advocates secured a major victory in Pennsylvania this summer. The state Supreme Court upheld key provisions of Act 77, which provides all qualified voters the right to vote by mail.

In order to vote by mail prior to Act 77’s 2019 enactment, Pennsylvania election law required voters to establish their absentee status (or excuse) by asserting they lived outside their respective municipality or were unable to vote at the polls due to illness or physical disability. Outside of those “excuses”, voters had to cast their ballots in person in order to participate. This, of course, limited the pool of eligible mail-in (absentee) voters. Act 77’s expansion of mail-in voting from being exclusive to absentee voters to all qualified voters represented an enormous expansion of ballot access.

Act 77, importantly, earned considerable bipartisan support. Both state-house Republicans and Democrats broadly endorsed the bill. Despite this, in the lead up, and in the aftermath of the 2020 election, former President Trump and Pennsylvania Republican lawmakers severely criticized the law and argued that it was unconstitutional.

Since the November 2020 election, both federal and state elected Republicans have sought to strike Act 77’s no excuse mail-in voting as unconstitutional. For instance, immediately after the 2020 election, Rep. Mike Kelly (R-PA) challenged the constitutionality of Act 77 and requested that the court throw out non-absentee mail-in ballots. The Pennsylvania Supreme Court dismissed the case on procedural error. In its ruling, the Court stated: “Petitioners sought to invalidate the ballots of the millions of Pennsylvania voters who utilized the mail-in voting procedures. … Alternatively, Petitioners advocated the extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election and instead “direct the General Assembly to choose Pennsylvania’s electors.” The Court had to revisit the constitutionality of Act 77 in its recent decision, and the subject of this post, McLinko v. Department of State.

McLinko, a member of the Bradford County Board of Elections, challenged the constitutionality of the Act 77, just as Rep. Mike Kelly did. Relying on past state Supreme Court precedent, McLinko argued that the Pennsylvania Supreme Court should strike down the law because the constitution states that qualified voters must establish residency sixty days before an election “in the election district where he or she shall ‘offer to vote’.” McLinko argued that the term “offer to vote” should continue to be understood as casting one’s ballot in person. Although Mclinko acknowledged clearly defined exceptions to in-person voting as guaranteed in the state constitution (as in absentee voting)[NK4] , he contended that the state legislature exceeded its authority by granting qualified voters, other than absentee voters, the right to “offer their vote” by mail, instead of in-person.

Weeks after McLinko brought suit, Pennsylvania state Rep. Bonner and thirteen other members also challenged the law on the same grounds. Pennsylvania courts consolidated these actions, as they all argued that the state legislature exceeded their scope of authority. And in January of 2022, Republican lawmakers won the initial round. The lower court concluded that the phrase “offer to vote” required voters to cast their ballot in person unless they could establish their absentee status. The state Supreme court rejected this argument, however.

The Court concluded that the phrase “offer to vote” does not require in person participation. Instead, the Court stated the phrase “where he or she shall offer to vote” is a descriptive clause that modifies the object of the prepositional phrase “in the election district.” It does no more than identify the district in which the elector is eligible to vote, which is the interpretation supported by the recorded history. Rejecting McLinko’s argument, the Court found that the legislature had authorization to expand mail-in voting pursuant to section four of the constitution, which permits the assembly to establish “other methods” for elections.

As the Dissent declared, this monumental decision overturned 160 years of court precedent that required in-person voting without “requisite special justification.”

Despite an early victory for Republican challengers, this decision represents a profound victory for voting right activists in Pennsylvania and cements the government’s ability to expand mail-in voting access.

The Arizonans for Fair Elections Initiative: Democrats’ Turn to Direct Democracy

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By Wade Erwin

In a state that some refer to as the “center of the fight to make voting harder,” the Arizona Supreme Court recently barred a ballot initiative that would have struck down GOP-backed election laws and practices. The court found that the Arizonans for Fair Elections ballot initiative, also known as the Arizonans for Free and Fair Elections Act, fell 1,458 signatures short of the threshold requirement for the general election ballot. Although the failed proposal cannot appear on the November 2022 ballot, the Arizonans for Fair Elections initiative evinces the tensions between Republican legislators pushing for more restrictive voting laws and the progressive interest groups who oppose these sweeping changes to Arizona’s election laws.

The Arizonans for Free and Fair Elections initiative typifies the divide between grassroots progressive organizations in Arizona and the state’s Republican General Assembly. Created as “a direct response to the Legislature,” the initiative illustrates Democrats’ turn to direct democracy to counteract the torrent of conservative voting laws. Republican members in the General Assembly viewed the initiative as such, with a Scottsdale representative arguing that “[t]hey can’t win at the Legislature so they’re going to go to the ballot and mislead the public.”

Proposed by organizations like the Arizona Democracy Resource Center, the Arizonans for Fair Elections initiative contained a variety of provisions designed to substantially alter Arizona’s election and campaign finance laws. The changes proposed under the Act included:

  • adopting same-day registration at polling places;
  • automatically registering those who obtain state identification cards to vote;
  • substantially reducing contribution limits from $6,250 to $1,000 for local or legislative offices or $2,500 for those running for statewide office; and
  • outlawing unofficial election audits.

The initiative represented an attempt by Democrats to push back against the flood of restrictive voting laws passed by the Arizona legislature in the wake of the 2020 election. More election interference bills were introduced by the state’s general assembly in 2022 than anywhere else in the country. While Arizona’s newest voter identification law garnered most of the national attention, legislators also introduced bills to limit the availability of mail ballot drop boxes and to expand faulty purge practices. The volume and breadth of these electoral regulations have made Arizona the epicenter for the debate over voting regulations today.

However, voters needed to qualify the initiative before they could vote for it on election day. Arizona state law requires that proposed initiatives amass 237,645 valid signatures by early July to earn a spot on the November ballot. Coalition groups aligned with Democrats collected an estimated 475,000 signatures before submitting it to the Maricopa County Superior Court. Although the trial court initially ruled that the initiative satisfied the signature requirement, conservative groups challenged the lower court’s methodology. The Arizona Supreme Court stated that it couldn’t verify the signature total and issued an order requiring the Superior Court to re-evaluate the count. After removing invalid and duplicate signatures, the Superior Court found that the initiative fell 1,458 signatures short of the statutory threshold. The Arizona Supreme Court affirmed the decision and barred the initiative from appearing on election day.

While voters won’t have a chance to weigh in on the Arizonans for Fair Elections initiative in November, the general election carries significant implications for voting rights in Arizona. With restrictive voter identification initiatives on the ballot, interested parties should continue to monitor November’s election.

Suits Against Texas’s 2021 Voting Law Move Forward, Promise Lengthy and Complex Legal Battle

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By Kate Dopkin

Fueled by conspiracy theories and former President Donald Trump’s claims that the 2020 election was rigged, last year, conservative states moved to pass legislation to restrict voting. The Republican-dominated Texas Legislature was no exception. In September of 2021, the Texas Legislature passed S.B. 1, a voting law that attempted to restrict how and when Texas voters can cast ballots. The far-reaching legislation banned drive-thru and 24-hour voting, protected partisan poll watchers, and imposed new requirements for assisting voters who need help filling out their ballots. The law also banned the distribution of mail-in ballot applications, created new ID requirements for voting by mail, and provided a correction process for mail-in voting. The ACLU of Texas described the legislation as “Omnibus Voter Suppression.”

Civil and voting rights groups have challenged S.B. 1 under the U.S. Constitution, the Voting Rights Act, and the Americans with Disabilities Act (ADA). The private plaintiffs included La Union del Pueblo Entero, Friendship-West Baptist Church, The Anti-Defamation League, and Texas Impact, among others. At least five different cases have been consolidated into a single lawsuit in the Western District of Texas. The U.S. Department of Justice filed a statement of interest in the case, arguing that the plaintiffs had sufficiently stated a claim of intentional discrimination under Section 2 of the Voting Rights Act.

Additionally, in November 2021, the U.S. Attorney General filed a lawsuit against the State of Texas and the Texas Secretary of State, alleging that SB 1 violates Section 208 of the Voting Rights Act by improperly restricting assistance in the polling booth for voters with disabilities that make it difficult for them to read or write. The lawsuit further alleged that the law violated Section 101 of the Civil Rights Act by requiring rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. In May of 2022, Judge Xavier Rodriguez, denied the State’s motion to dismiss and allowed the Attorney General’s lawsuit to move forward.

Attempts to dismiss the private plaintiffs’ complaints have largely been unsuccessful. The defendants asked the court to dismiss claims raised by various voter advocacy organizations, including those filed by LULAC, Voto Latino, Texas Alliance for Retired Americans, and Texas AFT. On July 12, 2022, the district court allowed the majority of the claims to move forward, holding that the State defendants could not claim sovereign immunity; some of the plaintiffs had associational standing; all plaintiffs had organizational standing; and the plaintiffs had stated a claim upon which relief could be granted. The district court has also granted LULAC’s motion to compel documents and communications from the state legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. Texas legislators have appealed this order to the 5th Circuit.

On August 2, 2022, the District Court allowed most of the LUPE Plaintiffs’ claims to  proceed, dismissing without prejudice certain claims under the 14th and 15th Amendments,  sections 276.016, 276.017, and 276.019  of the State Election Code, and the ADA. State defendants have appealed that decision to the 5th Circuit, as well. The litigation is ongoing, and promises to be a lengthy and complex legal battle. The trial is currently scheduled for the summer of 2023.

If You Want Something Done, Do It Yourself – New York Passes Landmark State Voting Rights Protections

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By Haley Rosenspire

In the wake of Supreme Court cases like Shelby v. Holder striking down key provisions of the 1965 Voting Rights Act, Alabama Representative Terri A. Sewell introduced the John R. Lewis Voting Rights Advancement Act in August 2021. The Act, which has passed the House several times but has never had the votes to pass the Senate, would establish new criteria for determining which states and precincts must obtain Section 5 “preclearance” prior to changes to voting practices taking effect. Preclearance is the process of predetermined states and precincts receiving pre-approval from the Department of Justice before making legal changes that would impact voter’s rights, a mechanism which became necessary during the Civil Rights Movement to ensure that Black citizens were able exercise their voting rights.

Despite, or possibly because of, the Bill’s failure to clear the Senate, the State of New York took matters into its own hands in June of 2022 by passing its own “John R. Lewis Voting Rights Act of New York.” While the laws share a name, they do differ in some substantial ways. While the federal John R. Lewis Voting Rights Advancement Act focuses more on updating key provisions to the 1965 law, the New York Act brings that vision to the state level by launching its own preclearance program, providing new legal tools to fight discriminatory voting practices, creating protections against voter intimidation or obstruction, and providing specific assistance in elections to language-minority groups.

The Act, which bears the name of Civil Rights giant and former congressman John Lewis was signed into law by Governor Hochul at Medgar Evers College in Brooklyn on June 20, 2022.  It makes its legislative and public policy purpose clear in its first section, stating:

In recognition of the protections for the right to vote provided by the constitution of the state of New York […]  it is the public policy of the state of New York to:

1. Encourage participation in the elective franchise by all eligible voters to the maximum extent; and

2. Ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise. N.Y. Elec. Law § 17-200 (McKinney)

The second section of the Act further proscribes that “the authority to prescribe or maintain voting or elections policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote.” N.Y. Elec. Law § 17-202.

These lofty legislative and policy goals are animated by a new, robust preclearance law that regulates the following: methods of election, the annexation of political subdivisions, the consolidation or division of political subdivisions, the removal of voters from enrollment lists, the dates of elections or the election calendar, the registration of voters, the assignment of election districts, the assistance offered to members of a language-minority group, as well as any other topics designated by the civil rights bureau.  N.Y. Elec. Law § 17-210. The law also includes explicit prohibition against voter intimidation and obstruction, as well as expedited pretrial and trial proceedings for actions brought pursuant to the Act.

With next term’s Merrill v. Milligan poised to challenge even more of the substantiative law of the Voting Rights Act of 1965 and federal voting rights legislation dead in the water with the current composition of the Senate, New York is not the only state that has moved to shore up voting rights at the state level.  The Brennan Center for Justice reports that in 2022, Arizona, Connecticut, and Oregon have also enacted laws that “expand access to the vote,” and another “48 bills with expansive provisions are moving through 16 state legislatures”. Other states yet move to impose more restrictive voting regulations— though still intended to protect democratic processes— particularly those aimed at combatting voter interference. Despite the type of regulations imposed, the trend continues to point to robust debate and activity for election law at the state level—the Empire State, as per usual, leading the crusade.