The 2018 midterm cycle saw a historic surge in voter turnout that helped deliver wins to a number of Democratic politicians across the country.
Now, months after the election, Republican lawmakers in a handful of states have introduced measures that would impose stricter rules on voters and voter registration groups, a policy shift that voting rights groups and advocates say could have a chilling effect on upcoming elections and introduce a new wave of voting restrictions in the US.
On April 25, the Tennessee state Senate voted to pass a measure that would impose fines and penalties on voter registration groups that submit incomplete forms to the state. And in Texas, legislators are considering a law that would punish people for errors on their voter registration forms or for voting if they are ineligible.
The proposals have been strongly condemned by activists and civil rights groups, who argue that the measures are unnecessary and could hamper efforts to mobilize some voters.
Conservatives have countered that some of their proposals are already law in some form and that the new measures are needed to ensure election integrity and prevent voter fraud. However, voter fraud is difficult to prove and, according to the available evidence and academic studies, exceedingly rare.
“We are seeing both the good and bad side of the fallout of the 2018 election,” Danielle Lang, the co-director of the voting rights and redistricting program at the nonpartisan Campaign Legal Center, told NPR.
The proposals serve as the latest in a wave of voting restrictions passed in recent years — a number of which have been criticized for disproportionately affecting voters of color, who are far more likely to support Democratic policies and candidates.
While some states are moving toward instituting more proactive voting measures like automatic voter registration (which has passed in 15 states and the District of Columbia in the past five years), it is the restrictions in particular that have drawn attention and criticism, fueling allegations of voter suppression in states like Georgia and Texas in recent years.
Concerns about voting restrictions and their potential effects on voters are hardly new. But what’s different this time is that legislators are not only going after errors made at the voting booth or on ballots; they’re focusing on registrations as well — and are introducing criminal punishments that come with harsh penalties.
Tennessee’s proposal creates new penalties for voter registration groups who submit incomplete forms
The Tennessee bill, which has been publicly endorsed by Tennessee Secretary of State Tre Hargett, is targeted to groups that pay people to help register voters. The measure would fine voter registration groups who “knowingly or intentionally” submit incomplete or inaccurate registration forms.
The penalties are based on the number of “deficient” voter registration forms they submit; groups submitting more than 500 incomplete forms could be fined as much as $10,000, while those submitting more than 100 incomplete forms could be fined as much as $2,000.
According to the Associated Press, the bill also makes it a Class A misdemeanor — which is punishable by a maximum $2,500 fine and/or jail time — for registration drive organizers to miss training sessions led by state officials, or for groups to pay a person based on a voter registration quota. The measure also requires organizations to mail in collected voter registrations within a 10-day window or face additional penalties.
The measure passed the state Senate in a 25-6 vote, with only one Republican voting against it. Due to differences between the Senate bill and the version passed by the House on April 15, the Senate measure will be sent back to the lower chamber so it can vote on the amended bill.
The proposal comes after one coalition, the Tennessee Black Voter Project, worked to register close to 90,000 voters before the midterm elections. Last year, the Tennessee Black Voter Project and the Memphis NAACP sued Shelby County, Tennessee, arguing that election officials failed to give potential voters time to correct issues on their registrations. The county was later ordered to allow the applicants to fix their registration forms.
As a result, the current legislative proposal has been sharply criticized by voting rights groups and activists in the state, who argue that the measure is clearly a punishment for the surge in voter registrations among black communities.
The bill “discourages people from volunteering in the Volunteer State,” Tequila Johnson, the co-founder of the Equity Alliance, which helped in the 2018 registration effort, told local reporters earlier in the month.
State officials counter that the measure is necessary after the incomplete forms were submitted last year, forcing officials to rush to review them all before the registration deadline. Hargett has said it cost $200,000 to deal with the incomplete Shelby County forms.
But Johnson and other activists who worked with the Tennessee Black Voter Project say the incomplete forms were submitted only because of a state requirement that groups submit all voter registrations, including ones they know are incomplete. They add that a law penalizing groups for the mistakes on forms is a clear attack on efforts to mobilize black voters.
“Black-led, community-based organizations throughout Tennessee have been registering more voters, turning them out to vote and winning more elections for progressive issues and candidates,” Cliff Albright, the co-founder of the Black Voters Matter Fund, recently wrote in a New York Times op-ed. “The fact that racial progress here has resulted in a white backlash is consistent with Tennessee history.”
In Texas, a bill could lead to more criminal prosecutions for voting crimes and errors
In Texas, lawmakers are considering a measure that would make it a felony, punishable by jail time and a fine of up to $10,000, for a person to put false information on a voter registration form (which is currently a misdemeanor) or to vote despite being ineligible to cast a ballot.
The measure, which passed the Texas Senate earlier in April, is one of a number of voting bills being discussed in the state’s legislature this year, and has been designated as one of several “priority bills” by Republican Texas Lt. Gov. Dan Patrick.
In addition to the increased penalties for voting errors, the bill would also create penalties for anyone who blocks sidewalks, parking lots, or roads within 1,000 feet of a polling place if they are positioned “in a manner that hinders a person from entering the polling place.”
A different provision would require a person to fill out new forms if they assist someone at a polling place, a move the bill’s critics argue would lead to undue suspicion of people helping elderly voters, voters who do not speak English, or voters with disabilities.
Voting rights advocates say the measure is written in a way that would expose people to prosecution for making unintentional errors when voting or registering to vote, and that it creates a number of new election-related offenses.
In a March 19 letter to Republican state Sen. Bryan Hughes, the sponsor of the bill, civil rights groups argued that the proposal would “bolster an ongoing campaign of selective criminal prosecutions aimed at deterring people from voting, particularly voters from historically marginalized communities.”
“Our elected officials should cut the bureaucratic red tape that has been wrapped around the ballot box in recent years, not enact more of it,” the groups wrote.
Hughes has disagreed with accusations that the legislation would lead to people being prosecuted for unintentional errors. “This bill is aimed at people who are intentionally cheating,” Hughes told NPR. “This is not to catch people who make an honest mistake.”
But critics point to two cases in which people have already been prosecuted for voting after thinking they were eligible, arguing that these sorts of cases might become more common if the bill is enacted.
The first case is that of Crystal Mason, a black woman who was sentenced to five years in prison last year after she voted in Texas. Mason had been previously convicted of tax fraud, making her ineligible to vote, but she has said she did not know this prior to voting in the 2016 election. Mason submitted a provisional ballot that was never counted, but she was still prosecuted.
In the second case, a woman named Rosa Ortega was sentenced to eight years in prison for illegally voting as a noncitizen. Ortega, a permanent US resident from Mexico, said she did not know that her immigration status disqualified her from voting. In a 2017 story on Ortega, the New York Times noted that she will likely be deported after she finishes her sentence.
In the March letter, the civil rights groups note that in 2018, more than 9,500 provisional ballots in Texas’s five largest urban counties were rejected because a person mistakenly thought they were registered or attempted to vote in the wrong precinct. Under Hughes’s proposal, voting rights advocates fear people could be prosecuted for these mistakes.
The groups are also concerned that the bill undermines the federal protections of the Help America Vote Act of 2002, which created provisional ballots, a type of ballot that is given to people who want to vote in an election but are unsure if they are eligible to. The ballots are then reviewed and are only counted if they are approved.
”It would assume that if you knew the facts that made you ineligible to vote, even if you didn’t know the law, casting that provisional ballot would essentially make you a criminal,” James Slattery, a staff attorney with the Texas Civil Rights Project, told NPR.
Voting rights advocates say these proposals would suppress voters — and they worry it could be the start of a new wave of restrictions
According to voting rights advocates, these measures seem to be the first signs of a new wave of efforts to restrict voting rights in the US. Those concerns have been compounded by the fact that the measures are being introduced in states that have already passed an extensive number of voting restrictions.
Texas, for example, already has laws requiring voters to show ID at the polls, and in 2017, federal judges invalidated two state voting districts that violated the Voting Rights Act. In 2018, black college students sued a Texas county for failing to offer on-campus voting locations and limiting the number of early voting days in the surrounding town.
In March, Democrats on the House Oversight Committee announced that they were expanding an ongoing probe of alleged voter suppression in Georgia to include Texas and Kansas.
Texas was also recently sued after a botched review of the state’s voter rolls resulted in the state unnecessarily challenging the citizenship status of thousands of voters, many of whom are naturalized citizens. On Friday afternoon, the Texas secretary of state agreed to end the controversial review as part of a settlement in the lawsuit.
Tennessee has also faced local voting lawsuits, including the aforementioned one in Shelby County last year. In 2016, the state was 45th in the nation in registering new voters and 49th in voter turnout, a point that advocates have regularly raised when criticizing the attack on groups holding voter registration drives.
Voting rights groups in both states have noted that the disagreement over voting bills cannot be separated from a broader spread of voting restrictions in the years since the Supreme Court struck down a key provision of the Voting Rights Act in 2013. Since that ruling, states like Georgia and Texas have adopted some of the strictest voting measures in the country.
With new voting laws under debate in Texas and Tennessee, as well as in states like Arizona, advocates fear that another wave of laws could soon take hold, making already restrictive states even more so.
“If we’re not careful, this strategy could spread across the country even faster than the wave of voter ID laws,” Albright, the Black Voters Matter Fund co-founder, noted in the Times.