Voter Suppression

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.

Virginia Passes State-Level Voting Rights Measure Mirroring Original Federal 1965 Voting Rights Act

Election Law Society · February 2, 2022 ·

By: Sarah Fisher

In March 2021, Virginia—a state historically marked by racially discriminatory practices in voting—became the first state formerly covered by the landmark federal 1965 Voting Rights Act to adopt state-level voting rights legislation modeled off of the Civil Rights Era measure.

Under the 1965 Act, certain cities, counties, and states with a history of race-based discrimination in voting were required to seek approval (called “preclearance”) from the United States Attorney General before making any changes to their election laws, regulations, or practices. The group of states and municipalities required to seek preclearance was determined by a formula that considered the jurisdiction’s use of certain discriminatory voting practices (such as poll taxes) and the jurisdiction’s voter registration and participation rates as of 1968.

Voting Early in Arizona? Make Sure You’re Still on the List First.

Election Law Society · December 1, 2021 ·

By: Mike Arnone

In the wake of the 2020 Election, states across the country have enacted a variety of more restrictive voting laws. Over 400 bills that make voting more difficult have been introduced in 49 states. 30 of these have become law in 18 states. Arizona is no exception to this trend.

In May 2021, Governor Ducey signed SB 1485 into law, making significant changes to the state’s early voting procedures. Effective after the 2024 election, the new law will recast Arizona’s former Permanent Early Voting List (PEVL) as the Active Early Voting List. As the former’s name suggests, voters could indefinitely remain on Arizona’s early voting list and automatically receive a ballot in the mail for any election in which they were eligible to vote. Now, if a voter doesn’t use their early ballot once in two election cycles (once in four years), county election officials are required to purge them from the early voting list if they do not respond within 90 days to a notice warning them of their impending removal. A voter can still be removed from this list if they have voted in person instead of using their early mail ballot in two election cycles. Voters would still remain registered to vote whether or not they were removed from the early voting list.

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.

North Carolina Voter ID Law Struck Down

Election Law Society · November 5, 2021 ·

By: Emma Postel

Once again, a North Carolina voting law has been found unconstitutional. On September 17, 2021, a Wake County North Carolina Superior Court permanently enjoined SB 824, a law passed in 2018 requiring photo identification for in-person voting. The court struck down SB 824 as a violation of the North Carolina Constitution’s Equal Protections clause, as they found it was adopted with an “unconstitutional intent to target African American voters.” Among its findings of fact, the court noted that North Carolina has a long history of implementing voting laws that discriminated against the African American residents of the state. The General Assembly has indicated they will appeal the Wake County Court decision.