More States Expanded Voting Rights In 2021 Than Restricted Them

Still, at the federal level, it remains "incredibly important for Congress to step in" to prevent widespread disenfranchisement, one voting rights attorney said.

While many states run by Republicans passed new restrictions on voting in the wake of the 2020 election, the states where Democrats controlled most or all of the levers of government did the opposite and increased voter access and voting rights.

In total, 25 states enacted legislation to expand voter access and voting rights, while 19 states enacted restrictive election laws, according to a review of state laws by the Brennan Center for Justice, a nonprofit that supports voting rights. Some states expanded voter access in certain ways while restricting it in other ways.

States that President Joe Biden won in last year’s election, and where Democrats control the state legislature, accounted for the majority of the expansive voter access laws enacted in 2021. And, in large part, the increase in voter access and expansion of voting rights in these states followed on from the successful implementation of policies during the COVID-19 pandemic that were designed to make it easier to vote.

“There is this emerging divide in America where places where it’s easier to vote pass these more expansive policies, and the opposite is true in places where it is already hard to vote,” Jasleen Singh, a voting rights attorney with the Brennan Center, said.

Almost every state adopted emergency election rules in 2020 to ensure that people could vote without worrying about contracting the coronavirus in a crowded indoor space. These changes included allowing anyone to cast an absentee ballot, sending every voter an application for a mail ballot (or the ballot itself), opening drive-thru voting locations, placing absentee ballot drop boxes, easing voter registration rules, providing more time for ballots to arrive, and allowing voters an opportunity to correct errors on their mailed ballots. Americans responded to these changes by voting at the highest rate in a century.

“The pandemic, and people’s use of these expanded policies, definitely signals to state legislatures that when these methods are available to make it easier to vote, people are going to use them,” Singh said. “And they turned out to be incredibly popular.”

The expansion of mail voting was one of several policies used to enable safe voting during the COVID-19 pandemic that many states made permanent or expanded in 2021.
The expansion of mail voting was one of several policies used to enable safe voting during the COVID-19 pandemic that many states made permanent or expanded in 2021.
John Bazemor via Associated Press

This, at least, is how it worked in states with Democratic-run legislatures. In most states run by Republicans, politicians responded to Donald Trump’s lies about election fraud and enacted new restrictions on voting, specifically restricting the kind of voting practices popularly used during the pandemic. This was particularly true in states where Biden made big gains over previous years, like Arizona, Georgia and Texas.

Democratic control of the state legislature was the biggest predictor of whether a state expanded voter access in 2021. Expansions of voter access and voting rights passed in all but one state (Rhode Island) where Democrats controlled both chambers of the legislature. This included states with Republican governors like Maryland, Massachusetts and Vermont.

Election laws passed in New York and Nevada also included some policies that the Brennan Center categorizes as restrictions on voting ― respectively, shortening the window to mail back ballot applications and increasing the number of voters per precinct. Kentucky and Louisiana, both of which have Republican legislatures and Democratic governors, also adopted election laws that mixed expansions of voter access with restrictions, as did the entirely Republican-run Indiana and Oklahoma. North Dakota was the only entirely Republican-run state to expand voter access without also limiting aspects of it.

Many of the biggest election law changes that expanded the right to vote flowed from best practices adopted during the pandemic.

California, Nevada and Vermont passed legislation to move to all-mail elections (while maintaining in-person voting options) by sending every registered voter a mail-in ballot. Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New York and Virginia all enacted new laws to ease rules around mail-in voting, whether by permanently adopting no-excuse absentee voting, sending every voter a mail-in ballot application or otherwise making it easier to vote by mail. Additionally, Connecticut Gov. Ned Lamont, a Democrat, extended the state’s order allowing voters to use the pandemic as an acceptable excuse to cast a mail-in absentee ballot.

California, Connecticut, Hawaii, Illinois, Kentucky, Maryland, Massachusetts, Nevada, New Jersey and Vermont either expanded the use of drop boxes for mail-in ballots or permanently adopted the use of drop boxes. Illinois also permanently adopted a policy allowing curbside voting, and Vermont adopted drive-thru voting, both of which were successful pandemic innovations.

“Specifically with the mail-in voting bills, that was a direct reaction [to the pandemic],” Joanne Antoine, executive director of Common Cause Maryland, a nonprofit backing voting rights legislation, said.

Previous attempts to pass legislation in Maryland simply to create a study of mail voting failed due to opposition in the state House of Delegates. But this year, both chambers adopted legislation to allow mail-in voting and approve the mailing of ballot applications to all registered voters.

“It was interesting to see, because of the pandemic, the willingness,” Antoine said. “It was almost as though everyone had a change of heart and they realized that this can work.”

Not every change can be chalked up to the pandemic. In some cases, states adopted policies that had long been sought by advocates of greater voter access and voting rights.

Connecticut, New York and Washington state all restored voting rights to people formerly incarcerated with felony convictions. Maryland made it possible for people held in jails pre-trial to vote.

Delaware and Hawaii adopted automatic voter registration for the first time, while Connecticut, Illinois, Maine, Nevada and New York all expanded their automatic voter registration programs by including more government offices as sites to register voters.

Meanwhile, Virginia became the first state to adopt a state-level Voting Rights Act creating a process to review and prevent local jurisdictions from implementing discriminatory voting practices.

Ballot drop boxes for mailed ballots were another popular policy that states expanding voter access made permanent in 2021.
Ballot drop boxes for mailed ballots were another popular policy that states expanding voter access made permanent in 2021.
CHANDAN KHANNA via Getty Images

Many states have constitutions that include all of the state’s election rules. If legislators in one of these states want to change election rules, they need to amend the state constitution. This can be a more onerous and time-consuming process than simply passing legislation, and is fraught with greater potential for failure.

State legislatures often need to pass resolutions in favor of constitutional amendments in successive sessions. Then the amendments are put on the ballot for voters to decide on their adoption.

In Connecticut, lawmakers passed resolutions in favor of amendments to allow early in-person voting and no-excuse absentee voting. Since neither resolution received 75% of the vote in the state House of Representatives, they will need to pass in successive sessions and then be placed on the ballot for voters. Early in-person voting already passed in a previous session, so it will appear on the ballot in 2022. No-excuse absentee voting needs to pass in one more session before it can appear on the ballot in 2024.

But in other states, the hurdles to passing constitutional amendments to make it easier to vote were too high.

Every Republican in the Delaware House of Representatives voted against a constitutional amendment authorizing no-excuse absentee voting, denying it the two-thirds majority required to pass. The resolution needed to pass in two consecutive legislative sessions to be put on the ballot. Twelve Republicans previously voted for the same amendment in 2019, but now echo Trump’s lies about election fraud as their rationale for voting no in 2021.

In New York, voters rejected constitutional amendments to allow same-day voter registration and no-excuse absentee voting. Both amendments faced a multimillion-dollar opposition campaign funded by conservative billionaire Ronald Lauder, while receiving no support from the state Democratic Party, which until recently had made no effort to expand voter access in the state. The amendments also fared poorly due to low voter turnout from Democrats in New York City and across the state.

These local failures help to highlight the national polarization of Republicans and Democrats on voting rights policies. For advocates of voting rights, they also illustrate the importance of enacting federal reforms like those currently being blocked by Republican filibusters in the Senate, such as the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.

“Because of this patchwork of policies that we’re seeing, and difficulty of enacting or not enacting certain legislation, this is a moment where it’s incredibly important for Congress to step in,” Singh said.

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