Republicans Are Criminalizing The Democratic Process For People Of Color

After an election loss and years of mass demonstrations, Republican states are rushing to create new crimes related to voting and protesting.

On May 14, Montana Gov. Greg Gianforte (R) signed three new bills into law. Two of the bills established new restrictions on voting, including a provision that could make it a crime to collect and submit ballots on behalf of another voter. The third bill made it illegal to protest near oil and gas pipelines, with a potential punishment of up to 18 months in prison and thousands of dollars in fines.

The new laws appear to have a clear target: the members of Montana’s various Native American tribes, who rely heavily on mass ballot collection drives in order to vote, and who in recent years have led protests against major oil and gas pipeline projects that posed a threat to their lands.

The GOP has sought for years to limit the right to protest and curb access to the vote. But both efforts have intensified across the country in 2021. So far this year, eight states, including Montana, have passed laws that create new criminal penalties related to protesting, according to the International Center for Not-for-Profit Law, which tracks such legislation. At the same time, Republicans have enacted new laws that create or strengthen criminal penalties related to voting or election practices in at least half a dozen states. Many of these laws, like Montana’s, have explicitly criminalized or strengthened criminal penalties on the practice of returning ballots on behalf of voters.

And as is the apparent case in Montana, the wave of anti-voting and anti-protest laws ― a wave that civil rights groups say is unprecedented since the civil rights movement of the 1960s ― is not just broadly anti-democratic. It is also a specific assault on the rights of Black, brown and Native Americans.

“They are responding to people who are trying to use fundamental rights in American society, whether it’s the right to vote or the right to protest, not by enabling people to tell legislators what they want and what they care about, but by seeking to cast them as criminals and silence them, both at the ballot and on the streets,” said Vera Eidelman, a staff attorney at the American Civil Liberties Union.

Tribe-led protests against pipeline projects in North Dakota, Montana and other states -- along with mass racial justice demonstrations across the country -- have led Republicans to pass a wave of new laws restricting protest rights.
Tribe-led protests against pipeline projects in North Dakota, Montana and other states -- along with mass racial justice demonstrations across the country -- have led Republicans to pass a wave of new laws restricting protest rights.
Photo by Michael Nigro/Pacific Press/LightRocket via Getty Images

The new laws are both obviously unconstitutional and largely unnecessary, Eidelman said, because they ostensibly seek to remedy problems that existing criminal statutes already cover. But they are part of a Republican turn against the basic tenets of democracy that only appears to be accelerating.

The GOP is “working to criminalize voting, and they’re working to criminalize protesting,” said Nse Ufot, CEO of the New Georgia Project, which opposed a sweeping new Georgia law that created multiple new crimes related to voting. “So we can’t protest, and you can’t vote, because they’ve created five new crimes and injected so much confusion into the system. What does that mean for the society that we will live in?”

Targeting Third-Party Ballot Collection

Montana’s HB 530 ― which Gianforte signed into law in May after Republican majorities in the state legislature passed it without a single Democratic vote ― prohibits anyone from submitting another voter’s absentee ballot if they receive a “pecuniary benefit” for doing so. Republican proponents of this provision argue it will help limit fraud associated with mail-in ballots.

Third-party ballot collection has become a primary focus of Republican efforts to create new criminal penalties related to voting ― especially in 2021, after former President Donald Trump spent last year’s election railing against the practice’s supposed potential to allow fraud. (Twenty-six states and Washington, D.C., allow the practice, although specifics vary: Some states only allow family members to return a voter’s ballot, and others limit how many ballots a single person can return.)

In reality, there is no evidence that ballot collection drives lead to fraud, and fraud itself is extremely rare no matter how Americans choose to vote. A legal challenge over a similar Arizona law that places heavy restrictions on the practice is currently under consideration at the Supreme Court, in a case proponents of the practice point to as evidence that the GOP crackdown on ballot collection is a partisan exercise to restrict votes. An attorney defending the law admitted in an appeals court that Republicans wanted it in place because third-party ballot collection puts the GOP at a “competitive disadvantage” in elections.

Republicans taking their cues from Trump have enacted new limits or bans on the practice in Iowa, Kentucky, Florida, Kansas and Arkansas. The new laws, some of which still allow voters to designate a family member to return a ballot on their behalf, almost universally create or increase criminal penalties for violating the stricter limits put in place.

Nonpartisan election officials typically view third-party ballot collection as a useful way to bolster democratic engagement among underserved populations. In Montana, Native Americans who live on reservations often lack access to daily U.S. Postal Service pickup, and many do not own cars that would allow them to make the drive ― which can be as long as 120 miles round-trip ― to the nearest in-person polling location. So tribal reservations have typically relied heavily on paid ballot collectors to pick up ballots from residents and transport them to county election offices en masse ― a practice that is now illegal. (Last year, a federal judge invalidated a similar Montana effort to ban third-party ballot collection on grounds that it disproportionately targeted Native American voters.)

“This latest ban on ballot collection is intentional discrimination on behalf of the Republican legislature,” said Jacqueline De León, a staff attorney at the Native American Rights Fund, which alongside the ACLU of Montana filed a legal challenge against the new law last month.

Residents of Montana's reservations, where mail service is poor and unreliable, often rely on mass ballot collection drives to vote. But a new law signed by Gov. Greg Gianforte (R) would heavily restrict the practice.
Residents of Montana's reservations, where mail service is poor and unreliable, often rely on mass ballot collection drives to vote. But a new law signed by Gov. Greg Gianforte (R) would heavily restrict the practice.
Ullstein Bild via Getty Images

In the face of “very significant structural barriers that keep Native Americans from casting their ballots, ballot collection is the logical solution,” she said. “Pooling collected resources is the way that you overcome how difficult it is to vote, and having third party ballot collectors do that type of collective work just makes sense.”

The Iowa ban on third-party ballot collection, voting rights groups have said, is likely to have disproportionate effects on the state’s Latino population. In those and other states, putting new limits on who can submit ballots on behalf of other voters is likely to present fresh obstacles for elderly and poorer voters, voters with disabilities and even college students ― all constituencies that are already more likely to report difficulties casting ballots.

Criminalizing Voting Mistakes

Other new laws have targeted election officials. Iowa Gov. Kim Reynolds (R) signed a law this year making it a crime for local election officials to mail out absentee ballots unless voters specifically requested them, a practice that became more common during the COVID-19 pandemic. A voting restrictions bill that narrowly failed in Texas included a similar provision, which could be revived when lawmakers reconsider the package in a fall special session.

The new laws could lead to a rash of additional charges for minor voting issues, like those that plagued Crystal Mason, a Texas woman who received a five-year prison sentence for trying to vote without realizing she was ineligible.

And the laws will likely have a chilling effect on voters, election officials and organizations that seek to assist voters, all of whom may become more wary of committing crimes while trying to engage in a basic democratic practice.

The new Montana law has generated concern that many organizations that engage in third-party ballot collection will stop, out of fear that they might accidentally commit crimes.

“It has both the actual effect of subjecting people to prosecution, and then the very real chilling effect that will discourage people from providing and getting the assistance that’s needed to exercise their right to vote,” said Eliza Sweren-Becker, an attorney at the Brennan Center for Justice in New York. “It’s one more thing to make voting harder, and one more thing to make people a little more scared to vote.”

Limiting The Right To Assemble

Frightening people away from exercising a democratic right also seems to be the point of the various anti-protest bills that Republican legislators have sought to enact in recent years, in response to Native-led demonstrations against major pipeline projects and the racial justice protests that have taken place across the country.

Montana’s new law, which has been characterized as one of the most extreme anti-protest measures in the country, would make “trespassing” near a “critical infrastructure facility” a misdemeanor punishable by up to four months in prison and $1,500 in fines. Larger crimes related to protesting oil and gas pipelines, or other facilities deemed “critical,” could result in felony charges punishable by 18 months in prison or $4,500 in fines. Organizations deemed “conspirators” could suffer even harsher criminal penalties.

Native groups in Montana, where tribes led protests against the proposed Keystone XL pipeline, view the law as a deliberate attack on their right to demonstrate against threats to their lands and livelihoods.

Along with Montana, seven other states ― Alabama, Arkansas, Florida, Iowa, Kansas, Oklahoma and Tennessee ― have passed anti-protest laws in 2021. Some, like Montana’s, explicitly target anti-pipeline protests. Others expand criminal penalties for protests that target monuments or block public streets, or create new penalties related to expanded definitions of “rioting” that would inevitably include peaceful protests.

The Republican push to curb protest rights has escalated since last summer, after mass protests erupted in the wake of the police killings of George Floyd and Breonna Taylor. Between June 1, 2020, and March 15, 2021, lawmakers in 33 states proposed at least 100 bills aimed at restricting protest and imposing harsh penalties on demonstrators convicted under the new legislation, according to a recent report by the free speech advocacy group PEN America. In Utah, a bill that ultimately died in committee sought to bar anyone convicted of “felony riot” from holding a government job or running for elected office. Similar legislation is pending in Alabama.

Following months of mass racial justice protests, Republican lawmakers in multiple states are trying to place new limits on demonstrating and expand the definition of "rioting" in a way that could criminalize peaceful protests.
Following months of mass racial justice protests, Republican lawmakers in multiple states are trying to place new limits on demonstrating and expand the definition of "rioting" in a way that could criminalize peaceful protests.
Photo by Adam DelGiudice/SOPA Images/LightRocket via Getty Images

“This is about deterring folks from going to these protests, having them think twice about even going,” said Bruce Franks Jr., a civil rights activist who won a seat in the Missouri state legislature after protesting at Ferguson in 2014. Struggling with mental health issues and facing a fine for a campaign finance violation, he resigned from his seat in 2019 and moved to Arizona.

The bills, he said, “are meant to keep marginalized people down.”

At least 11 other proposals, including a pending bill in Arizona, threatened to deny access to state benefits for anyone convicted ― or, in some cases, simply indicted ― after an arrest at a protest. Such benefits could include health care, unemployment insurance, school scholarships and other forms of government assistance.

“If I’m hit with felony charges for protesting, at this point in time I couldn’t receive any public benefits like tuition waivers and financial aid,” said Rich Villa, 28, a criminal justice undergraduate at Phoenix College in Arizona who was arrested last year during a protest against police brutality. “That’s damaging in itself.”

The threat of potentially losing other public benefits, he said, kept his fiancée, who depends on food stamps to help feed their young child, away from the demonstrations last year.

“This is a real-life depiction of how exercising your First Amendment right to speak out about injustices people are facing in this country means you can face real, real consequences,” Villa said. “Your life can be detrimentally impacted for speaking out against the injustices by the system you are in turn protesting... It’s like David against Goliath.”

Many of the bills have not made it through state legislatures this year, but legislation that would make it easier to classify protesters as “terrorists” is still pending in Ohio, and the proposals are an indication of what state legislators are likely to pursue in future sessions.

While Republicans have advanced bills targeting protesters, they have also reduced potential criminal liabilities for ordinary citizens who deliberately target demonstrators. Legislatures in Oklahoma and Florida have approved laws that would grant civil immunity to people who run over protesters with cars; the Oklahoma law also shields anyone who uses a vehicle to target protesters from criminal liability. The Iowa state House passed a similar bill, which hasn’t come up for a vote in the state Senate yet.

Wielding cars as a weapon against protesters is a far-right fantasy that has increasingly become a reality. In 2017, James Alex Fields drove his car into a crowd of anti-racist protesters in Charlottesville, Virginia, killing 32-year-old Heather Heyer. Since then, the practice has become more common. Last summer, as racial justice demonstrations erupted nationwide, people drove their cars into crowds of protesters at least 72 times over a two-month span, according to researchers at the Chicago Project on Security and Threats.

Many of the new laws targeting protesters and voters are likely unconstitutional, Eidelman, the ACLU attorney, argued. But they are still likely to reduce participation in protests and elections among Americans who don’t have the will or the means to wage a legal fight against them. The laws are poised to have drastic effects on American democracy, but for their Republican backers, that seems to be the point.

“Part of the intended effect,” Sweren-Becker said, “is to scare people away from the democratic process.”

Alexander C. Kaufman contributed reporting.

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