voter access

An Impossible Choice: Large Scale Voter Suppression v. Risking Criminal Prosecution

Election Law Society · October 31, 2022 ·

By Katie Kitchen

While literacy tests are no longer formally part of the U.S. election process, numerous laws, including a decades old law in Missouri, still result in similar forms of voter suppression. This law, Mo. Rev. Stat. § 115.44.3, has been in effect since 1977 and states, “No person, other than election judges and members of such voters’ immediate families, shall assist more than one voter at one election.” While this single sentence may seem like a small detail in terms of election procedure, in practice, some argue the law infringes on the rights of limited English proficient individuals and people with disabilities to vote.

One such person is Susana Elizarraraz’s mom. Elizarraraz’s mom is deaf, limited English proficient, and relies on Elizarraraz’s assistance to cast her ballot in each election. When Elizarraraz had to go out of town for work during an April 2022 election, her mother was unable to vote, as there was no one available to assist her due to the limitations of Missouri’s Single-Voter Assistance Restriction.

A group of Plaintiffs are currently challenging Mo. Rev. Stat. § 115.44.3 in Missouri Protection & Advocacy Services v. Ashcroft. The Plaintiffs in this matter are Missouri Protection and Advocacy Services (Mo P&A), VozKC, and three individuals who have been directly impacted by Missouri’s Single-Voter Assistance Restriction. One of those individuals is Susana Elizarraraz. Mo P&A is a non-profit public interest law firm focused on protecting the rights of individuals with disabilities. VozKC is a volunteer organization that advocates for Latino communities and works with limited English proficient populations.

In the Complaint, filed June 22, 2022, the Plaintiffs assert that Mo. Rev. Stat. § 115.44.3 violates § 208 of the Voting Rights Act (VRA) and the Supremacy Clause of the United States. Section 208 of the VRA states, “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Therefore, the Plaintiffs argue that the limitation included in Mo. Rev. Stat. § 115.44.3 hinders the ability of voters who require assistance to choose the individual who assists them, which can lead to an inability to exercise the right to vote entirely. Additionally, because Mo. Rev. Stat. § 115.44.3 is a state law that may infringe upon the VRA (a federal law), the Plaintiffs assert that it violates the Supremacy Clause, which generally states that federal law is the “supreme law of the land”.

The Plaintiffs make many compelling arguments regarding why challenging an election law from 1977 is prudent today. One reason is that the Latino population grew by nearly 50% across the St. Louis region since 2010, but Missouri does not offer election materials in languages other than English. Additionally, approximately 18.6% of Missouri’s eligible voting population are individuals with disabilities who are projected to be eligible to vote in Missouri in 2020. Thus, voter assistance for populations of limited English proficient voters and voters with disabilities in Missouri has become even more critical as the population changes. The non-profit communities are unable to have one volunteer for every individual who may need assistance, which is what would be required to abide by Mo. Rev. Stat. § 115.44.3. The Plaintiffs describe this situation as a choice between large groups of people being unable to exercise their right to vote versus having individuals risk criminal prosecution by violating the Missouri’s Single-Voter Assistance Restriction. What may seem like a small procedural matter can impact the ability of entire groups of minority populations to exercise their right to vote, which has concerning ramifications for democracy as a whole.

I will delve into the Answers filed by the Defendants as well as the Statement of Interest filed by the Department of Justice in future posts. From a brief glance, issues such as whether there is a private remedy to enforce § 208 of the VRA are likely to be raised. Additionally, it is worth noting that there is similar litigation in Arkansas challenging a law that prohibits individuals from assisting more than six voters in casting a ballot each election. As the cases progress, it will be interesting to see whether courts will invalidate all limitations to § 208, or if they will determine an acceptable threshold of how many voters it is reasonable for one person to assist within the boundaries of the VRA. This distinction may be a determining factor in the equitable ability of individuals with disabilities and/or limited English proficiency to exercise their right to vote.

South Carolina and the Free and Open Elections Clause

Election Law Society · March 28, 2022 ·

By: Anna Miller

In May 2020, the Supreme Court of South Carolina was asked to rule on whether the COVID-19 pandemic constituted enough of a “physical disability” to allow all South Carolina voters to vote absentee in the 2020 election. Currently, South Carolina election law requires absentee voters to have an approved reason for casting an absentee ballot, including being unable to cast an in-person vote due to physical disability. South Carlina Code Section 7-15-310 defines physical disability as “a person who, because of injury or illness, cannot be present in person at his voting place on election day.”

In Bailey v. SEC, the South Carolina Democratic Party sued the South Carolina State Election Commission to reinterpret this provision in light of the global pandemic, which would allow every voter to vote absentee without changing South Carolina’s election laws. However, while this case was pending before the South Carolina Supreme Court, the South Carolina legislature made temporary changes to the election law allowing regions under a state of emergency declaration to vote absentee without a stated reason.

A Proposed South Carolina Bill to Continue COVID-19 Expansion of Voting Accessibility

Election Law Society · November 24, 2021 ·

By: Anna Miller

In February 2021, the South Carolina House of Representatives began to consider several fundamental changes to the voting process through the general reform bill, H. 3822. As the temporary measures adopted in response to the COVID-19 pandemic have expired, representatives have debated extending and even expanding these measures. Reform proponents argued in support of increasing accessibility to absentee voting, including eliminating the requirement that the absentee voter sign their ballot in the presence of a witness, and then get that witness to also sign the ballot. This bill seeks to codify that change and to further increase ease of access to absentee voting. For example, absentee voters would no longer be required to provide a reason for casting their ballot from outside the state- the bill would completely repeal Section 7-15-320 of the 1976 Code, which provided a list of approved reasons for casting an absentee ballot.

Voter’s Choice: The New Way to Vote

Election Law Society · December 2, 2019 ·

By : Elizabeth Harte

As the nation works to achieve a balance between election security and access to voting, California is rolling out a new system designed to “modernize elections.” Entitled “California’s Voter’s Choice Act,” the act was passed in 2016 and will become available for all counties to adopt in 2020. This extraordinary plan moves voting into the twenty-first century and does away with traditional, assigned voting places. In their stead, Californian counties that opt into the act will implement “vote centers.” These centers will serve as an all-purpose stop for Californians to ensure their voices are heard. For example, instead of the typical assignment to one polling place in their county, a Los Angeles County resident will be able to visit any center in their county most convenient to them and can do so up to ten days before the election. At a center, the said Angeleno can: “vote in person; drop off their ballot; get a replacement ballot; vote using an accessible voting machine; get help and voting material in multiple languages; [and] register to vote or update their voter registration.”