by Michael A. Smith, Professor of Political Science, Emporia State University
In 2022, my colleagues and I published our book Much Sound a Fury or the New Jim Crow? The Twenty First Century’s Restrictive New Voting Laws in the States, with SUNY Press. The project began when we met and formed a working group together at the MPSA conference a few years earlier.
In the book, we reviewed a host of restrictive new voting laws, which began well before the 2020 election and the Big Lie (the unsubstantiated claim that the election was “stolen” by massive voter fraud). We reviewed the empirical impact of laws including photo ID, proof of citizenship, felony disenfranchisement, and gerrymandering. Each chapter tells a different part of the story, but our findings include the conclusion that photo ID laws are unnecessary, but their impact is also exaggerated, that felony disenfranchisement has measurable effects on both turnout and partisan vote share which disproportionately affect African Americans, and that gerrymandering is complicated not only to measure, but even to define. Our book concludes with a brief afterword about the Big Lie and the events of January 6, 2021.
The states have continued to pass a host of different voting laws since then, including many designed to make voting more difficult and many others designed to make voting easier. Some states have even passed laws doing both—complicating voting in some ways and simplifying it in others. There have also been some major court rulings. At this year’s MPSA conference, our authors reviewed the most recent developments.
The changes in the states are wide and varied, and readers wanting to do a deep dive are referred to this comprehensive roundup by the Brennan Center for Justice. Summing up briefly, there is a trend in “red” states to seek more restrictions and in “blue” ones to make voting more accessible. For examples of the former, Kansas has a new law making it a felony to impersonate a poll worker, Florida has also made it more difficult for independent groups to conduct voter registration drives, and Idaho now excludes student IDs from the list of acceptable photo IDs for voting. For examples of the latter, several states including New York have expanded eligibility for mail-in voting, Connecticut has passed its own Voting Rights Act, and Illinois has passed voting pre-registration for 16-year-olds.
Some states have simultaneously expanded and limited voting. For example, Missouri has passed a Photo ID law but also adopted early voting (referred to there as “no excuses absentee”). Utah has moved almost entirely toward mail-in voting but also expanded the grounds for voting challenges and tightened proof of residency requirements.
If there is any theme to these new laws, it is a marked preference for in-person voting in “red” states (with a few exceptions like Utah), while “blue” states are expanding mail-in and drop box voting.
Felony disenfranchisement is a particularly vexing issue, and Floridians find themselves at the epicenter of the feud. The state was previously one of the few that banned those convicted of felonies from voting for life under most circumstances. In 2018, Florida voters repealed this—or thought they did—with the passage of Amendment 4, which won 65% of the vote. The new law did exclude those convicted of murder or sex offenses against children, but that hasn’t proven to be the biggest implementation headache. Instead, the Florida Legislature and Governor DeSantis have pushed back against those who have finished all of their sentences except the payment of fees, fines and court costs, arguing that they are ineligible until these are paid in full. Critics deride this system as “pay-to-vote,” and one court ruling even called it an “administrative train wreck.” The state and some counties have even tried to prosecute those who registered in good faith, unaware of this technicality. Observers worry about a chilling effect in which those who are eligible will avoid registering and voting due to fear and confusion. Court challenges remain ongoing.
Speaking of court challenges, there have been several important rulings since our book was published. In Allen v Milligan, the U.S. Supreme Court ruled 5-4 in favor of plaintiffs challenging a Congressional redistricting map, arguing that it disenfranchises African-American voters by drawing only one “majority-minority” district. The Court upheld lower court rulings ordering the state legislature to redraw the map with two such districts. State attempts to delay the process were also rebuffed by the Supreme Court. Chief Justice John Roberts and Justice Brett Kavanaugh joined all justices appointed by Democrats in handing down the ruling.
A federal district court ruling from Arkansas could be a bombshell, if not overturned. In Arkansas State Conference, NAACP v Arkansas Board of Appointment, the 8th Circuit ruled that private citizens do not have standing to sue under Section 2 of the Voting Rights Act, only the U.S. Department of Justice can do this. If not overturned, this could radically restrict voting rights lawsuits over gerrymandering and other alleged VRA violations. The U.S. Supreme Court is almost certain to review.
Plaintiffs can take heart from another ruling. In Moore v Harper, the U.S. Supreme Court rejected the “independent state legislatures” theory. Once considered fringe, this conservative theory held that no one except state legislatures had any constitutional jurisdiction over Congressional redistricting. Those ruling for the majority in Allen were joined by Justice Barrett in this 6-3 ruling. Independent state legislatures theory appears to be out of business, for now at least.
It’s never a dull moment in the study of state voting laws! Each year brings a host of new laws and challenges. Talk of election security is bound to be lively in the 2024 Presidential Election—and we political scientists will be there to analyze and chronicle it.
About the Author
Michael A. Smith is a Professor of Political Science at Emporia State University. He has authored or co-authored five books, the most recent of which is Reform and Reaction: The Arc of Modern Kansas Politics. Co-edited by H. Edward Flentje, the book will be published later in 2024. He has other academic publications as well, and also writes newspaper columns carried throughout Kansas as part of the Insight Kansas group and blogs for the MPSA. Michael appears occasionally on television and radio in Kansas and western Missouri to discuss state and national politics. He was an expert witness for the plantiff in the Bednasek v Kobach case, decided together with Fish v Kobach by the federal district court for Kansas in 2018. Michael teaches courses in American politics, state and local government, and political philosophy. He received his Ph.D. from the University of Missouri in 2000. Follow Michael on X (formerly known as Twitter).