A Tale of Two Democracies: How the 2021 Wave of State Voting Laws Created a New American Fault Line

by Voting Rights Lab

June 17, 2021

States: Nationwide

Below are excerpts from our new report. Click here to access the full report.

2021 has been a historic year for voting rights advocates, with both major gains and discouraging setbacks occurring in state legislatures across the country. This report outlines our observations from the state level so far this year, and what activity still remains to be seen.

The sheer volume of state legislative activity only tells one part of the story. What we are witnessing in real time across the country is a widening divide, whereby some states are working to expand participation in our democracy and strengthen our tradition of non-partisan elections administration, just as a significant number are working to curtail and undermine these objectives.

The growing fault line in the way states legislate voting is important not just on a theoretical level, but to voters of all stripes and all backgrounds. Take, for example, the issues of mail voting and early voting.

National data analyzed by Voting Rights Lab shows that early and mail voting accounted for nearly two-thirds of the total vote in the 2020 presidential election, and that these methods were broadly used by voters of all races and in both major parties, as well as independents. Mail and early voting were especially popular among veterans and active duty military, as well as voters age 55 and older. More than twice as many voters cast ballots by mail as on Election Day and roughly equal shares of voters cast early, in-person ballots as on Election Day. While 2020 was an anomalous year, the share of absentee and early voting has been steadily growing over time.

A bar graph showing early and absentee voting numbers as a percentage of all votes cast in the last four even-year elections

Whether a state is moving in the right or wrong direction can have significant implications for voters. For instance, the millions of voters living with disabilities tend to vote early or absentee because few in-person polling places are fully accessible.

38.3 million eligible voters live with disabilities.

A Government Accountability Office investigation in 2016 found that only 17% of polling places were fully accessible for older voters with disabilities and 83% of polling places examined had at least one impediment to voting.1 This lack of access contributes to depressed turnout among voters with disabilities. Nationally, people with disabilities voted at a rate 7 percentage points lower than people without disabilities, despite the fact that people with disabilities demonstrate an interest in politics at a rate 11 percentage points higher than people without disabilities.2 Voters with disabilities are also the voters most often in need of third party assistance and, therefore, those put most at risk by new efforts to criminalize common forms of voting assistance.

It’s both the very personal ways in which pro-voter and anti-voter policies affect the public, especially those populations most historically oppressed and marginalized – as well as the intensity of the distrust in our system – that have resulted in so many entrenched, protracted state-level fights about voting rights. And unfortunately, there’s no sign of this abating.

Learn more in our complete report, A Tale of Two Democracies: How the 2021 Wave of State Voting Laws Created a New American Fault Line.

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2021 Legislative Trends Summarized

PRO-VOTER TRENDS

  • 9 states expanded in-person early voting
    and only 1 has restricted it
  • 9 states are giving election officials more time to process ballots
    with 0 states cutting back pre-processing time
  • 5 states passed ballot error notice and cure processes
    and 0 states have rolled theirs back
  • 4 states expanded voting eligibility or access for citizens with past felony convictions
    and 0 states have done the reverse
  • 4 states passed new or improved electronic ballot tracking laws
    and 0 states have done the reverse

ANTI-VOTER TRENDS

  • 11 states have passed new laws shifting election authority
    with potentially chilling ramifications for non-partisan election administration in some of these places
  • 10 states have created election-related crimes
    with potentially suppressive effects
  • 8 states made it more difficult to return ballots on behalf of voters
    while 1 state made it easier
  • 6 states imposed new or more restrictive voter ID laws
    while only 1 state took action to make its voter ID law more equitable

MIXED OUTCOMES

  • 22 states expanded mail voting
    while 11 have restricted it
  • 13 states improved voter registration
    while 3 states imposed new registration barriers
  • 8 states expanded ballot drop off locations
    while 4 states restricted them

Two Americas Left in the Wake

The sheer volume of state legislative activity only tells one part of the story. What we are witnessing in real time across the country is a widening divide, whereby some states are working to strengthen and expand participation in our democracy just as a significant number of states work to curtail it. Though many state legislatures are still in session – or reconvening in upcoming special sessions – the fault lines have begun to take shape.3

A geometric map of all 50 states, color coded to indicate what type of major legislation they've enacted so far this session, if any.

For every state that moves to restrict voting access, millions of voters are impacted. From Texas (18.7 million people eligible to vote4) to Florida (15.5 million) to Arizona (5 million), a growing sector of the American population will find its path to the ballot box obstructed. Increasingly, one’s ZIP code determines a citizen’s ability to exercise their constitutional right to vote.

A geometric grid graphic displaying approximate numbers of eligible American voters impacted by different forms of state legislation from this legislative session.

Those most impacted by these mounting legislative obstacles are Americans who have historically been disenfranchised or blocked from casting a ballot. Black and brown people, Native Americans, voters with disabilities, veterans and members of the military, non-native English speakers, rural voters and low-income Americans – populations that have borne the brunt of disenfranchisement for generations and now face new, overwhelmingly onerous restrictions.

What we are left with is a disparity that both violates our country’s promise and echoes its history: Two Americas, two unequal populations. One group heard, one group silenced. A democracy divided.


Notes

[1] Voters With Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance, 2017, U.S. Government Accountability Office, October 2017.

[2] Id, at 13.

[3] States in blue have enacted significant pro-voter legislation this session. Orange indicates states that have enacted significant anti-voter legislation this session. States in dark grey either enacted no major election legislation this session or the legislation they enacted was mixed in impact, not clearly categorizable as pro-voter or anti-voter on balance. Light grey indicates states that are either still open or have indicated that they will call a special session.

[4] The Voting Eligible Population estimates adjust the Voting Age Population by subtracting people ineligible to vote due to felony disenfranchisement laws and adding the estimated overseas voting population. Source: McDonald, Michael. 2020. U.S. Election Project. Accessed June 11, 2021 at http://www.electproject.org/2020g.