With eyes on the 2022 and 2024 elections (and beyond), Republican-controlled state legislatures are working to firm up election laws that are more favorable to them.
For nearly two months, Republicans who were loyal to former President Donald Trump attempted to overturn the 2020 election and erase President Joe Biden’s victory. Though some, including Trump’s personal lawyers, made outlandish claims to the public about erased votes and the efforts of the deceased Hugo Chávez to steal the election, the cases in the courts largely ignored these theories.
Instead, Trump’s legal teams and allies focused on what they claimed were illegal changes made to state voting laws. The lower courts and the Supreme Court almost unanimously found the suits had no standing and roundly dismissed them. Trump and his allies continued to insist the election results were fraudulent, but they were unable to prevent Biden’s inauguration.
Now, with eyes on the 2022 and 2024 elections (and beyond), Republican-controlled state legislatures are working to firm up election laws that are more favorable to them. Some of these actions are laws Republicans have long sought to enact – such as requiring photo identification to vote – but other laws are being proposed in response to the recent election.
Why do Republicans want to change election laws?
Many of the states that Biden won in 2020 were states that Trump had won in 2016, including Arizona, Georgia and Pennsylvania. These three states, where Republicans still hold the majority in the state legislatures, look likely to pass new voting laws after their recent election results were contested by Republicans both from within and without.
The reasons for these changes vary depending on whom you ask. As Politico reported last month, some Republicans are using the unsupported claims of election fraud to argue that election security needs to be tighter to prevent future fraud. Republicans have often argued that voter fraud is common and needs to be fought with stricter voting rules.
Alternatively, one Georgia Republican, Alice O’Lenick, recently stated the laws had to be changed “so that we at least have a shot at winning.” In her comments, O’Lenick, who serves on her county’s board of elections, echoed a sentiment Trump expressed in March 2020 when he told Fox News that increased voting levels would ensure, “you’d never have a Republican elected in this country again.”
What election laws are being considered?
Though the impetus for the law changes may be debated, the results would likely be the same: it would be more challenging to vote. For instance, a commonly suggested law would require that all citizens present a valid photo ID to vote. This is nothing new. More than a dozen states, most with Republican legislatures, have enacted photo ID laws.
Georgia is one of those states, but neither Arizona nor Pennsylvania currently require photo ID to vote, though Arizona does require two forms of non-photo ID. The Pennsylvania legislature is currently considering enacting a photo ID law.
Such laws are often opposed by advocacy groups who claim the expense and inconvenience of getting photo IDs puts an unnecessary burden on poorer voters and people of color. For this reason, photo ID laws are often criticized as a form of voter suppression, though opinion polling finds most Americans support them.
In what appears to be a direct response to the 2020 election, state legislatures have proposed various laws that would either limit mail-in voting or prevent voters from using dropboxes. Both Pennsylvania and Georgia’s Republican legislators have proposed ending at-will absentee voting, an option many people used in 2020 to avoid public polling stations during the COVID-19 pandemic.
Both mail and absentee voting favored Democrats in the last election. After Election Day, Trump watched his lead in multiple states vanish after the delayed counting of mail-in ballots flipped the vote totals in Biden’s direction.
Arizona Republicans have gone even further by drafting a law that would allow state legislatures to toss out election results and choose the state electors themselves. That proposal was met with anger and disbelief, with Arizona’s Secretary of State Katie Hobbs tweeting on January 29, “So really, we should just get rid of the presidential election altogether? In reality, that’s what this bill would do.”
Other proposed laws would take aim at permanent early voting lists and the frequency of recounts.
The 2020 election legal challenges
Many Republicans have used the unfounded claims that there was vast voter fraud in 2020 to support changing existing voting laws. These claims were first brought up in the weeks after the November 3 election, when Trump and his allies publicly challenged the results. These challenges rarely held up in court, though.
For instance, Republican legislators in Pennsylvania challenged their own election even though the laws were passed by those same legislators. Republicans sued, claiming mail-in ballots were gathered and counted incorrectly.
Separately, Texas led a multistate lawsuit to overturn election results in Georgia, Michigan, Pennsylvania and Wisconsin. The Texas lawsuit put forth a complaint that those states’ election laws were unlawful and the votes should be thrown out. The lawsuit argued state legislatures – all of which were Republican-controlled – should pick the state’s electors.
In those cases and dozens of others brought by Trump loyalists, the courts found that the state election laws were legal and properly followed. The Supreme Court, which had three of its nine judges appointed by Trump, dismissed both the Pennsylvania- and Texas-brought cases.
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