The Markup: Weekly Election Legislation Update for Monday, December 4

by Liz Avore

December 4, 2023

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Today is Monday, December 4. We are tracking 1,975 bills so far this session across all 50 states, with 414 bills that restrict voter access or election administration and 943 bills that improve voter access or election administration. The rest are neutral, mixed, or unclear in their impact.

The Bad News: A federal court of appeals ruling threatens the ability of individual voters and advocacy organizations to bring claims under the Voting Rights Act.

The Good News: In Michigan, a new law expanded voter registration opportunities. A North Carolina court blocked implementation of a legislative power-grab that threatened to disrupt state and local election administration. A judge ruled that Pennsylvania may not reject timely ballots because a voter printed the wrong date on their envelope.

Looking Ahead: In a lawsuit challenging restrictive Arizona election laws, the U.S. Supreme Court determined lawmakers may not avoid providing testimony about a new law requiring voters to provide proof of citizenship. The 5th Circuit Court of Appeals set a January trial date to rehear a challenge to Mississippi’s permanent disenfranchisement for voters with felony convictions after a three-judge panel struck down the policy earlier this year.

Here are the details:

Michigan improves automatic voter registration, online voter registration, and pre-registration. Michigan continued to enact reforms increasing voter access as Governor Gretchen Whitmer signed multiple bills into law last week, including a package expanding automatic voter registration – including upon release from incarceration; S.B. 594 (improves access to online voter registration); and H.B. 4569 (allows pre-registration for 16- and 17-year-olds). Governor Whitmer also signed H.B. 4129 (creates new criminal offenses for intimidating election officials) and S.B. 385 (allows electronic applications for precinct election inspectors).

North Carolina court blocks legislative power grab on election board appointments. A three-judge panel in North Carolina blocked implementation of S.B. 749, a bill enacted earlier this year over Governor Roy Cooper’s veto. The bill restructures state and county election boards and takes appointment power out of the hands of the governor and his appointees and gives it to legislative leadership. Voters overwhelmingly rejected a proposed constitutional amendment to make these changes in 2018 after the state supreme court held earlier that year that a similar law enacted in 2016 violated the state constitution. A full trial and an appeal to the newly restructured state supreme court are expected in 2024.

Federal district court rules that Pennsylvania officials may not toss misdated and undated mail ballots. U.S. District Judge Susan Baxter ruled in favor of challengers to Pennsylvania’s policy of disqualifying mail ballots that were received on time due to missing or incorrect dates written by voters. The court concluded that the requirement is immaterial to a voter’s eligibility and that disqualifying ballots on that basis therefore violates the Civil Rights Act of 1964.

Appeals court weakens key enforcement provision of the federal Voting Rights Act. A three-judge panel of the U.S. Court of Appeals for the 8th Circuit upheld a district court’s ruling that only the U.S. Justice Department may bring lawsuits seeking to enforce Section 2 of the Voting Rights Act. This interpretation would prevent voters and advocacy organizations from initiating lawsuits alleging racial discrimination in voting laws, and would require the federal government to file those lawsuits instead. This would have prevented the successful challenge to Alabama’s congressional districts the Supreme Court ruled on earlier this year, as well as numerous pending lawsuits concerning redistricting and voter access. Plaintiffs in the lawsuit intend to ask for a rehearing before the full court.

U.S. Supreme Court determines Arizona lawmakers may not avoid providing testimony about the intent behind a new law requiring voters to provide proof of citizenship. The U.S. Supreme Court rejected an attempt by Arizona Senate President Warren Petersen and House Speaker Ben Toma to avoid giving depositions in a lawsuit over two bills enacted last year. The bills (H.B. 2243 and H.B. 2492) would require voters to show proof of U.S. citizenship in order to remain registered to vote in federal elections. Both have been temporarily blocked. Challengers to the law are seeking to depose the two lawmakers on whether the legislature had discriminatory intent in pursuing the two laws. The trial is currently underway, and closing arguments are set for December 19.

Federal appeals court sets date for rehearing of challenge to Mississippi’s permanent disenfranchisement law. A challenge to the constitutionality of Mississippi’s permanent disenfranchisement law – which imposes a lifetime voting ban after certain felony convictions – is set for oral arguments in front of the full U.S. Court of Appeals for the 5th Circuit on January 23 of next year. Earlier this year, a three-judge panel struck down the relevant section of the Mississippi Constitution for violating the U.S. Constitution’s prohibition against “cruel and unusual punishment,” but in September, the 5th Circuit vacated that decision and decided to rehear the case. Mississippi is one of only three states where voting rights are never automatically restored.

This update is powered by VRL’s State Voting Rights Tracker: