What Will The Biggest Obstacles To The Ballot Box Be In 2020?

The blue wave of 2018 featured historic midterm turnout, while voters in some states, like Michigan and Florida, approved ballot initiatives that would further expand access to the ballot box. But those gains in voter participation have reinvigorated GOP efforts to make it harder to vote. Voting rights advocates are already tracking new obstacles — legislative or otherwise — that Republicans are putting between voters and the ballot box ahead of the 2020 election.

Several legislatures have quickly sought to restrict voting access, as some states’ 2018 sessions come a close. And many states will have another shot to pass restrictive measures next year, too.

Even though the next national election is more than a year and a half away, there already some trends emerging that could make it harder to vote. Here’s what we’ll be following in the lead-up to 2020:

Targeting Efforts To Help Voters

This year has brought a surge in legislation aimed at impeding efforts to register voters and improve access to the polls. The most high profile recent example is a recently signed law in Tennessee that imposes major fines on voter registration drives if they turn in too many “deficient” applications. The law is now the target of two lawsuits.

Legislatures in Texas, Arizona and Missouri also considered bills that would make it more onerous to help voters cast ballots. A Texas bill, for instance, requires new paperwork to be filled out by those assisting voters with physical impairments that prevent them from entering polling places. The Arizona House passed a bill that would make it a misdemeanor, punishable with jail time, for registration drive workers to be paid for their efforts. That legislation included a carve-out for those working for political parties.

Even if these bills aren’t made into law this year, voting rights advocates will be watching carefully to see if they’re brought up again or in other states next year, ahead of the 2020 elections.

“It really has had a chilling impact, especially in the four states in question, with our leaders saying, ‘What does this mean for me? Am I going to have a criminal record for registering voters? Are my local leaders going to have civil fines?’” said Celina Stewart, the director of advocacy and litigation at the League of Women Voters.

SCOTUS-Approved Voter Purges

Certain states have recently ramped up their voter purges, and advocates are worried that sloppy efforts to clean up the rolls will become even more prevalent since the Supreme Court last year gave the green light to Ohio’s system, under which officials start the purging process once someone hasn’t voted in a certain number of elections.

According to Rick Hasen, the UC-Irvine law professor behind the Election Law Blog, there hasn’t been a major push among other states to implement Ohio’s exact approach; he said states are turning to other systems — such as the less controversial “ERIC” program — to do list maintenance.

However, voting rights experts still have noticed an increase in purges in certain states and worry that trend will grow. Georgia and North Carolina removed around 11 percent of names from their voter rolls between 2016 and 2018, and Florida removed 7 percent of individuals in that time period, an analysis by the Brennan Center, a nonpartisan voting rights organization, found.

“The purges have gotten much more aggressive and much more widespread,” Wendy Weiser, director of the center’s Democracy Program, told TPM. “And, I have no doubt that the Supreme Court’s unwillingness to rein in some of these more problematic and unjustified purge practices is contributing to that.” 

Adding to the concern is the efforts by conservative activists who seek to pressure states and localities to conduct more aggressive purges.

Rhetoric—Paired With Laws—That Intimidates Voters

The inflammatory rhetoric claiming mass voter fraud hasn’t stopped since President Trump made his own baseless claims about 2016 election. And voting rights advocates fear that such language — paired with legislation that stiffens criminal penalties for what could be honest voting mistakes — will intimidate eligible voters from exercising the franchise.

Hasen described the trend as “the use of threat of law enforcement to deter voting.”

Texas, for instance, claimed it had a list of nearly 100,000 noncitizens on its a voter rolls — a claim Trump quickly amplified – and that it was using the list to conduct criminal investigations. The list was quickly found to have thousands of false positives and other errors. Texas settled lawsuits brought against it for the list by withdrawing its claims and significantly narrowing its approach to identifying alleged noncitizen voters.

But Texas Republicans have not backed off from a bill that would increase the penalties for minor election code violations, and the state made an example of Crystal Mason, who cast an illegal provisional ballot not knowing that her status of being on parole made her ineligible to vote. (Mason, who was sentenced to 5 years in jail, is appealing the case.) Texas Attorney General Ken Paxton has continued to tout claims that his office prosecuted 33 voter fraud cases, however the mass majority of those defendants ended up in prosecution diversion programs — a sign of just how minor those charges were.

John Higdon, a Trump-appointed U.S. attorney in North Carolina, also made a fuss about bringing cases against 20 people accused of illegal voting. Many of those defendants were legal residents who were unaware they weren’t eligible to vote and the cases that have reached convictions have mostly resulted in minor punishments — such as a $100 fine — and the threat of deportation.

“It does feel like a state-sponsored effort to intimidate people from voting,” Weiser said.

Stymieing Gains In Felon Re-Enfranchisement

Florida Republicans just audaciously gutted a ballot initiative passed last year that would have given some 1.5 million ex-felons the right to vote.  The state recently passed legislation imposing requirements that those ex-felons pay all fines, even administrative fees not associated with their sentences, before they are eligible to register — a move activists say will block thousands of those ex-felons from voting.

Other states have dragged their feet when it comes to make sure ex-felons can easily regain their rights to vote. Blair Bowie, who works for the Campaign Legal Center, pointed to Alabama, which passed a law in 2017 that would restore the voting rights of some 100,000 ex-felons. Yet, the secretary of state there, John Merrill has sowed confusion about the requirements to register under the new law and has said he will not put any stats resources towards educating the newly eligible about their right to vote.  

“One of the biggest problems we see is that people don’t know that they can vote. And these are people who as recently as right before the law passed in 2017 were told by the state that they could never vote again,” Bowie said. “There is a level of undermining legislation through inaction”

Confusion Over How To Fix Ballot Issues

An under-the-radar issue activists are keeping their eye on is any effort by states to shorten or make unclear the amount of time voters have to fix any deficiencies that prevented them from casting a ballot, such as showing election officials an ID or submitting any other required paper work.

In 2018, a fight in Georgia erupted over how it handled ballots or ballot applications for which the signature didn’t match or there were minor discrepancies in the voter’s information compared to the state’s records. Georgia has since passed a law reversing most, if not all, of its so-called “exact match” practices. Celina Stewart, of the League of Women Voters, also pointed to Florida where ballots weren’t counted in 2018 because they were delivered to election officials too late.

Disinformation On Social Media

Voting rights advocates say that combatting election disinformation has been a longstanding challenge. But social media has allowed foreign actors and others wishing to disturb elections to put their disinformation efforts on overdrive, as the investigations into the 2016 election have made clear clear.

Special counsel Robert Mueller went through the broad strokes of Russia’s social media campaign in his public report. But analyses by the Brennan Center and other researchers have zeroed in on tactics that specifically sought to suppress certain voters, either by encouraging minorities to sit out the 2016 election or by posting false information about how to vote. And the trend continued in 2018, the analyses found, while also noting the use of social media to intimidate voters.

Election Technology Challenges

Many states will be implementing for the first time a bevy of new election machines in 2020, Hasen said, due to federal funding for technology upgrades provided to election officials.

The discomfort specifically with how Georgia has updated its voting machines has caused a major dispute in the state.

Adding to the anxiety is the threat of cyber-intrusions, after Russia-tied hackers successfully infiltrated election infrastructure in two states in 2016. Though there is no evidence that votes were changed by the cyber-intrusions, if hackers sought to tinker or delete voter registrations in 2020, it could cause mass chaos and confusion.

On top of that, states that have tried to cut early voting will make it harder for officials to deal with such crises, because they’ll have less time to realize there is a problem and correct it before Election Day.