By: Lisa Rode

Since the contentious election of 2020, state legislatures across the country have been proposing and passing an unprecedented number of election administration laws. The Brennan Center for Justice published a report in October that inventories and categorizes the laws enacted in 2021. According to the report, about nineteen states “have enacted 33 laws that will make it harder for Americans to vote.” These voting restrictions include short windows for mail voting, limited days and hours for early voting, elimination of election day registration, and stringent voter ID requirements. At the same time, about twenty-five states “have enacted 62 laws with provisions that expand voting access.” These voting expansions include more options for mail voting, improved language and disability support, expanded election day registration, and lenient voter ID requirements.

For the most part, these new laws break cleanly along partisan lines. Nearly all of the laws restricting voting access were passed in states where Donald J. Trump won in 2020 and the state legislatures are controlled by Republicans.1 Correspondingly, nearly all of the laws expanding voter access were passed in states where Joseph R. Biden won in 2020 and the state legislatures are controlled by Democrats.1 Earlier this year, Michael Adams, Kentucky’s Secretary of State, offered a pithy explanation of this division when he claimed that “Republicans, in some cases, have a myopic obsession with security and don’t think about the access side. Democrats, in some cases, have a myopic view about access and don’t care about the security side.” While one can reasonably argue that his characterization is not an entirely accurate analysis of either party’s positions or intentions, it does, at a high level, capture the extent to which the parties’ perspectives on election integrity are antithetical to one another. As a general rule, Republicans aim to restrict voter access ostensibly to combat fraud while Democrats aim to expand voter access to foster broad participation.

There is much that can be said about this stark division along party lines. Not the least of which are the debates about voter fraud and the contentions that both parties are proposing the laws that “give themselves an edge in winning elections.” An analysis of those debates is beyond the scope of this post. There are two things, however, that are beyond dispute. The first is that voting restrictions place outsized burdens on minorities and disadvantaged communities. The second is—as the Brennan Center observed—that “access to the right to vote increasingly depends on the state in which a voter happens to reside.”

Disparate access to the right to vote harms minorities and disadvantaged communities very specifically and the nation more broadly. It prevents equal participation by all eligible voters within and across state lines, and violates the Equal Protection Clause of the Fourteenth Amendment which bars “needlessly imposing substantial burdens” on the fundamental right to vote. Moreover, unequal opportunity to participate “severely compromise[s] democracy” in that election results do not accurately “reflect the will of the people.”

With federal legislation, Congress could ameliorate the disparity in voter access across the states as it did when it enacted the Voting Rights Act of 1965 to address stark disparities in state election laws that denied the vote to minorities during the civil rights movement. Congressional Democrats have, in fact, introduced two pieces of federal legislation aimed at fostering and securing the equal opportunity to vote at the national level. The “Freedom to Vote Act” and the “John R. Lewis Voting Rights Advancement Act of 2021” set national standards for election administration, congressional districting, and campaign financing. These standards generally align with laws enacted in Democratic-led states and would preempt “much of what Republican state lawmakers are trying to constrict.” However, neither bill is likely to gain Senate approval because of partisan gridlock.

In parallel, public interest groups and individuals are challenging (primarily) voting restrictions in state and federal courts. The Brennan Center is currently tracking over fifty state election law related claims across seventeen states. These lawsuits assert violations of not only the Fourteenth Amendment but also Section 2 of the Voting Rights Act, and the First and Fifteenth Amendments. Some of the laws being challenged may well be difficult to defend in certain courts. The suits that succeed in invalidating them may provide some measure of relief. However, they likely will be too little and, given the protracted timelines associated with litigation, too late to fully redress the disparity in voter access across the states for the next several election cycles.

Thus, as of now, it is unclear how to comprehensively redress the disparity in voter access that the spate of new laws has created. It is unclear how to reduce the risk of the voting restrictions in place today “amount[ing] to the most dramatic curtailment of ballot access since the late-19th century.” It is clear that the ardent and organized involvement of many institutions, communities, and individuals is required to send a message that the right for all to participate equally in the political process, the most fundamental of constitutional rights, still matters and is worth fighting for.

[1] See the Brennan Center report maps, CNN 2020 presidential election results map, and Ballotpedia state legislature partisan composition maps.

Lisa is currently a 2L at ASU’s Sandra Day O’Connor College of Law. After completing graduate work in the sociology of sustainable development, she unexpectedly fell into a career building e-commerce, digital payment, and biometric authentication software. Those two worlds informed her initial legal interests in sustainable water policy and data privacy protection. After the first year of law school, those interests have expanded to include immigration policy, election integrity, and post-conviction relief.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.