Republican legislators around the country are moving aggressively to strip governors and other officials of their power to change election rules – after states made it easier to vote last year during the coronavirus pandemic and turnout surged to record levels.
The measures have been introduced in at least eight states with Republican-controlled legislatures – including the key battlegrounds of Georgia and Arizona. Some bills would give more authority to lawmakers to establish the ground rules for voting, in an escalation of the already bitter partisan fights that have erupted following the 2020 presidential contest.
The fresh showdowns over who should run elections come as allies of former President Donald Trump continue to try to cast doubt on his loss – by arguing that election officials and the courts usurped state laws when they relaxed voting rules to overcome challenges posed by the pandemic. And they represent the latest front in the ongoing political warfare over voting rules.
As of this month, state legislators in 43 states had introduced 253 bills to restrict voting access, according to an updated tally by the Brennan Center for Justice at New York University.
The proposals to curtail officials’ powers are “consistent with the pattern that is happening across the country in Republican-dominated legislatures,” Jonathan Diaz, legal counsel for voting rights at the nonpartisan Campaign Legal Center. “They are trying to corner the market on running elections and make it more difficult to expand the right to vote.”
Proponents say their actions are needed to restore voter confidence in the system – even if it was battered by Trump’s false allegations that widespread fraud contributed to his loss.
In Montana, a state Trump won by double digits last November, a bill written by Republican state Rep. Llew Jones would require legislative consent before the governor could “suspend the provisions of any statute prescribing the procedure for an election.”
The bill, he said, is his answer to a decision by then-Gov. Steve Bullock, a Democrat, to give counties the choice to conduct voting entirely by mail last year.
“I don’t believe there was any fraud that occurred in Montana,” Jones told CNN. “That being said, perception is reality in this world.”
“The more vetted and the more transparent the process is,” he said, “the more likely there is to be belief that the process has validity and integrity.”
New measures in battleground states
In Georgia, where Republicans in the state legislature have sponsored a flurry of bills to restrict voting after Biden’s win there, a measure introduced this week would eliminate the secretary of state’s voting powers on the five-member state elections board.
The current secretary of state, Brad Raffensperger, faced Trump’s wrath for not pursuing unfounded conspiracy theories of widespread fraud in the election.
A Fulton County prosecutor has launched a criminal investigation into a January call during which Trump urged Raffensperger to “find” enough votes to overturn his defeat in Georgia.
A companion bill in the Georgia legislature would give the state election board the right to assume temporary control over the administration of local elections and voter registration.
“The intent here is to help out when there is a problem and after a very thorough investigation has taken place, and go in and help that county,” said Georgia state Rep. Shaw Blackmon, a Republican who helped sponsor both bills. Blackmon said the bill that would allow the election board temporary control of local elections would add “checks and balances” to the state’s voting process to increase confidence in the system.
Another proposal in Georgia would curb the ability of the state election board and the secretary of state to “enter into certain consent agreements.” It appears to stem from a settlement that state officials reached with Democrats in federal court last year that set out procedures for signature-matching on absentee ballots. It also required officials to quickly notify voters when their absentee ballots had been rejected, giving Georgians enough time to correct problems and still have their votes count.
On Thursday, Raffensperger called the proposal from Georgia legislators “misguided” and said it wasn’t needed.
“As secretary of state, I’m a constitutional officer,” he said during an online discussion organized by the Georgia First Amendment Foundation and cosponsored by CNN. “I’m not appointed by anyone. I’m elected by the people of Georgia, and therefore, we have our constitutional powers.”
In Arizona, another battleground state that swung to Biden last fall, a pending bill would make it a felony for any official in the state to “modify any deadline, filing date, submittal date or other election-related date that is provided for in statute.”
The bill’s supporters say it’s necessary after legal challenges resulted in an extension of the voter registration deadline in 2020. Two advocacy groups had gone to court to move the deadlines, arguing that pandemic restrictions had led to a dramatic dropoff in people registering to vote. After several legal skirmishes, Secretary of State Katie Hobbs, a Democrat, crafted an agreement with the advocates on a registration cutoff date – which some Republicans cast as subverting state law.
At a hearing this month, state Rep. Jake Hoffman, a Republican who sponsored the measure, argued it’s “not good policy for those deadlines to be moved on a whim.”
By considering criminal penalties for officials who alter deadlines, “the legislature is saying: ‘We are the only people in the world that can be trusted with elections,’ ” Alex Gulotta, Arizona state director of All Voting is Local, told CNN.” ‘Election officials who are the professionals, can’t be trusted. The governor can’t be trusted. The secretary of state can’t be trusted.’ “
The measure is among a raft of election-related bills the Republican-controlled legislature in Arizona has considered this year. They range from a bill that would require voters to obtain notarized signatures on their mail-in ballots to a proposal that would grant the legislature the power to pick the state’s presidential electors.
Clashes over control
The clashes over the control of elections come against a broader backdrop of mostly Republican state legislatures moving to curb the authority that governors exercised during the pandemic to limit gatherings and shutter schools and businesses to prevent the virus’ spread.
Lawmakers in at least 40 states and two territories have introduced more than 200 bills or resolutions this year that would limit or impose greater oversight on governors’ powers or spending decisions during an emergency, according to the National Conference of State Legislatures (NCSL).
“There’s always been a tension between the branches of government, and when an emergency comes up, those tensions come to the surface,” said Wendy Underhill, who oversees the elections and redistricting programs at NCSL.
One of biggest battles is playing out in Kentucky, where Democratic Gov. Andy Beshear has gone to court to challenge a package of laws from the Republican-controlled legislature that limit his emergency powers. One measure strips the ability of the governor and secretary of state to change election procedures.
Last year, as the pandemic raged, Beshear and Kentucky’s Republican Secretary of State Michael Adams forged an agreement that expanded mail-in and early voting in the state.
Months after Election Day, Trump’s allies continue to push the argument that the sole power to set election rules rests with state legislatures – rather than with governors, election supervisors or the judges who interpret state constitutions that enshrine voting rights.
Over the weekend, House Minority Whip Steve Scalise declined to concede the presidential election was not stolen, insisting that disputes still linger because “a few states … did not follow their state laws” in administering elections. “Once the electors are counted, yes, he is the legitimate president,” the Louisiana Republican said of Biden on ABC’s “This Week”
“But if you’re going to ignore the fact that there were states that did not follow their own state legislatively set laws,” Scalise added. “That’s the issue at heart, that millions of people are still not happy with.”
The US Constitution empowers state legislatures to set the “times, places and manner” for congressional elections, subject to Congress’ authority to make its own changes.
But Rick Hasen, an election law expert who teaches at the University of California, Irvine, said some Republicans are advancing a more “muscular version” of a doctrine that argues state legislators have broad authority to oversee even minute details in administering elections.
“If you can’t make the fraud argument because you can’t point to instances of widespread fraud in the 2020 election, you need another argument,” Hasen said.
Whether courts endorse the so-called “independent state legislature doctrine,” he said, remains an open question.
Just this week, the US Supreme Court declined an appeal that centered on the question of who has final say on election decisions. In that case, Republicans challenged a Pennsylvania Supreme Court decision that allowed the counting of ballots received up to three days after Election Day to accommodate the difficulties imposed by the pandemic. The plaintiffs argued that the state court exceeded its authority and should have let stand an Election Day deadline passed by the state legislature.
Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented, saying the court should have heard the case to clarify rules for future elections.
This story has been updated to reflect additional comments by Georgia Secretary of State Brad Raffensperger.