Even after President Donald Trump’s disproven allegations of voter fraud fueled last week’s deadly assault on the US Capitol, Republicans across an array of swing states are still touting his baseless allegations to advance measures that would make it tougher to vote.
When Congress voted last week, in the immediate aftermath of the Trump-fueled riot, to finalize the Electoral College results declaring Joe Biden the winner of November’s election, bipartisan majorities in both the House and Senate joined dozens of courts around the country in concluding that there was not meaningful fraud in the election.
But despite those findings, Republicans in Georgia, Pennsylvania, Texas and likely other states including Michigan and Wisconsin are moving to roll back access to mail balloting, eliminate drop boxes, toughen voter identification laws and erect other barriers to the ballot in the name of improving voter security and restoring “faith” in the outcome.
“We are seeing a continued use of the voter fraud lie and thoroughly debunked conspiracy theories over the integrity of this election to drive a vote suppression agenda,” says Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at the New York University School of Law.
This renewed push places Republicans on a collision course with congressional Democrats, who are likely to move quickly on legislation that would expand access. It will also likely prompt a procession of legal battles between GOP states pursuing new restrictions and a Biden Justice Department likely to resist them as violations of the Voting Rights Act.
With Trump’s long march to discredit the election results – a campaign joined by scores of GOP elected officials – culminating in last week’s horrific violence at the Capitol, voting rights advocates believe they have their best opportunity in memory to galvanize public support for fortifying the right to vote.
“The country has now, I think, seen the logical endpoint of this [suppression] strategy,” says Weiser. “This insurrection might have unmasked the strategy for what it really is, which is an anti-democratic effort to use lies to thwart our democratic system, in particular by repudiating the votes of Black and brown people.”
Although the riot (understandably) overshadowed the proceedings, the congressional vote in the wee hours Thursday finalizing the Electoral College results represented a bipartisan repudiation of Trump’s groundless fraud claims. While a majority of House Republicans voted to reject the results, an overwhelming majority of Senate Republicans as well as all Democrats in both chambers voted to accept them – and in the process more Republicans than at any point since Election Day acknowledged that Trump and his team had not provided evidence to validate their claims of massive fraud.
“There’s no evidence of significant fraud conspiracies or even significant anomalies that cast any serious doubt on who actually won the election,” declared Republican Sen. Pat Toomey of Pennsylvania. Sen. Lindsey Graham of South Carolina, one of Trump’s most reflexive defenders, agreed during his remarks that Trump had not produced evidence to support his claims: “Fraud? They said there’s 66,000 people in Georgia under 18 voted. How many people believe that? I said, give me 10. Hadn’t had one. They said 8,000 felons in prison in Arizona voted. Give me 10. Hadn’t got one. There’s problems in every election. But I don’t buy this. Enough’s enough.”
Even Senate Majority Leader Mitch McConnell of Kentucky acknowledged during his statement that “nothing before us proves illegality anywhere near the massive scale that would have tipped the entire election.” Public doubt about the result, he continued, “was incited without any evidence.”
Action at national and state levels
These admissions by Senate Republicans capped weeks of similar conclusions from courts and state election officials. The result of Trump’s extensive campaign to overturn the result was that this year’s balloting received likely the most extensive and comprehensive after-action review of any modern election. And, like earlier efforts from Republican administrations to find systematic fraud – such as a push under the Department of Justice under George W. Bush, along with Trump’s own disbanded voter fraud commission – the reviews turned up almost nothing.
“This has been as vetted as any election could possibly be, and has gotten as clean a bill of health as any election could,” says Weiser.
Yet none of that has prevented Republicans across key swing states from offering measures that would create new obstacles to voting on the grounds of fighting fraud or restoring “faith” in the election system.
In a parallel move, Republican Sen. Rick Scott of Florida plans to shortly reintroduce legislation that would mandate national voter-ID laws, require all absentee ballots to be requested at least 21 days before Election Day and bar states from accepting mail-in ballots received after that date. Scott is the incoming chair of the National Republican Senatorial Committee, the party’s Senate campaign arm.
“This election has shown we need reforms to our election systems and we need to rebuild trust in our elections,” Sarah Schwirian, Scott’s deputy communications director, told me in an email.
Despite his remarks acknowledging the absence of fraud, McConnell also called for “strong state-led voting reforms.”
In the states, the push may be greatest in Georgia, which, amid record turnout, saw Biden carry the state – the first Democrat to do so since Bill Clinton in 1992 – and Democrats sweep both of this month’s US Senate runoffs. In the state legislative session that convened Monday, the state Senate Republican majority pledged to repeal the state’s law allowing voters to request absentee ballots for any reason, to impose new photo-identification requirements on any absentee voting that remains and to eliminate drop boxes for returning such ballots.
“The Georgia Senate Republicans have heard the calls of millions of Georgians who have raised deep and heartfelt concerns that state law has been violated and our election process abused,” the caucus said in a statement last month. “We will fix this.”
The Republican speaker of the state House has expressed reluctance to revoke no-excuse absentee balloting, but Georgia’s GOP secretary of state, Brad Raffensperger, who drew national attention for resisting Trump’s demands to subvert the election, has endorsed the repeal. Raffensperger has cited both claims of “election integrity” and the argument that large-scale absentee voting, combined with early in-person voting and Election Day itself, creates too much work for county election officials.
Raffensperger continues to support the repeal even though an audit of absentee ballots in Cobb County conducted by his office found virtually no discrepancies. Republican legislators are also pushing proposals to bar local governments or organizations from mailing absentee-ballot requests to voters and to prohibit groups from organizing buses to the polls during early voting.
In Pennsylvania, Republican legislators have also proposed bills to repeal the no-excuse absentee ballot law passed in 2019. Though Toomey, the state’s Republican US senator, has acknowledged that no one has produced evidence of fraud in Pennsylvania’s balloting, state Rep. Jim Gregory introduced the repeal by declaring, “This past Presidential Election cycle we witnessed an extreme amount of irregularities regarding mail-in ballots.”
Other state legislative Republicans, hesitant about completely repealing no-excuse absentee balloting, want to ban drop boxes, bar voters from signing up to automatically receive absentee ballots during each election and impose tighter signature-verification requirements.
Texas is already one of the states that make it toughest to register or vote (it allows absentee voting for only a limited number of causes), but Republican legislators there are looking at adding new hurdles, including a ban on local governments mailing out absentee ballot requests, as some Democratic-leaning large counties tried to do last year.
Specific proposals to roll back absentee balloting haven’t yet surfaced in Michigan, but appear likely in the upcoming session after the GOP-controlled state House and Senate each held extensive hearings in December that allowed Trump allies to air wild claims of fraud.
At the hearings, “it was pretty clear … that they were trying to build fodder for potential voter suppression efforts,” says Sam Inglot, deputy director of Progress Michigan, a progressive advocacy group.
The Republican-controlled state Legislature in Wisconsin seems poised to act too.
Democrats will push back
The prospects for these measures – and others that may be coming in states with Republican-controlled legislatures – are mixed. Democratic governors in Michigan, Wisconsin and Pennsylvania would be certain to veto any GOP efforts to roll back ballot access. But advocates of expanding voter access worry that even if legislation fails in those states the effort will provide new oxygen for the same unproven fraud claims that fanned last week’s insurrection.
For Michigan Republicans, pursuing legislation that Gov. Gretchen Whitmer is certain to veto may be just “a tactic to really try and fire up their base, but that is a very dangerous proposition because what we just saw was an insurrection fueled by this misinformation,” says Art Reyes III, executive director of We the People-Michigan, a liberal group that organizes working-class communities around the state.
Civil rights experts say that if red states pass laws rolling back mail balloting or adding other restrictions, it’s likely the Biden Justice Department would fight them in court. But that may be a limited remedy. In the 2013 Shelby County decision, five Republican-appointed Supreme Court justices outvoted four Democratic-appointed justices to effectively repeal the federal government’s authority under the Voting Rights Act to require that states with a history of discrimination receive preclearance for changes in election laws.
As a result, Washington can fight such laws only with litigation after the fact under another section of the act. And that is a lengthy and time-consuming process, as Vanita Gupta, at the time president of the Leadership Conference on Civil and Human Rights, acknowledged in an interview with me last month. Gupta has since taken a leave from the organization now that Biden has nominated her for the number three position at the Justice Department.
“It can take years and a lot of money to actually litigate these cases, during which elections are taking place pursuant to what could be unconstitutional laws,” she told me. “So [that] is hardly a remedy.”
Gupta said the more feasible response was intense pressure on legislatures not to add these restrictions in the first place. Such resistance could emerge: Efforts to protect the vote against Trump’s calls to overthrow the results drew intense public pushback in Michigan, Georgia and other states, and the expanded mail balloting and other measures taken to ensure access during the pandemic proved extremely popular with voters.
“What we’ve seen coming out of Covid is this extraordinary surfacing of these profound inequities in voting, and people don’t want to go back,” says Hannah Fried, national campaign director for All Voting is Local, a project of the Leadership Conference. “People never should have waited in a long line to vote; people never should have had to pay to return an absentee ballot. But now we see that as even more unfair.”
Trump White House
In states with unified Republican control of government, however, like Georgia and Texas, opponents may not be able to stop new voting restrictions. That could focus more attention on Democratic efforts to establish expansive nationwide voting rules.
In the previous Congress, House Democrats passed both a new Voting Rights Act restoring the federal government’s preclearance authority, and a sweeping election bill known as HR 1, which, among other things, requires states to permit online and same-day voter registration and provide at least 15 days of in-person early voting. Reintroduced in the new Congress this month as HR 1, the bill now also requires states to offer no-excuse absentee voting.
House sponsors say they expect the bill to pass within the opening weeks of the new Congress. In the previous Congress, House Democrats passed the new Voting Rights Act and HR 1 without a single dissenting vote; every Senate Democrat endorsed both measures as well. Every House Republican opposed both bills except for one who supported the new Voting Rights Act.
Even if the House, as is likely, passes both bills, Senate Republican filibusters against each are virtually certain. It would be extremely difficult for Democrats to attract enough GOP support to reach the 60 votes required to pass such measures through the upper chamber.
For that reason, these measures to protect and expand voting rights could become a flashpoint in the debate among Senate Democrats about whether to try to overturn the filibuster, which could be eliminated with a majority vote.
In an interview with me last summer, Democratic Sen. Jeff Merkley of Oregon, the principal proponent of ending the filibuster, said he believed that Democrats reluctant to terminate it for all issues might consider doing so solely for revisions in election rules.
Uniting all 50 Senate Democrats behind even a limited filibuster repeal wouldn’t be easy. But ironically, a new push in Republican states to restrict voting access –even after Trump’s fraud claims were both disproven and implicated in last week’s unprecedented violence – could increase pressure on Senate Democrats to act, even if that means confronting the filibuster.
“Voters do not want to go back to how things were,” says Fried. “And I don’t think people who are in position to change this … want to be on the wrong side of history.”