The 2018 midterm elections were heralded as a triumph for democracy itself, with record numbers of voters turning out to the polls and, in multiple states, passing measures to expand voting access.
The last few weeks have been less inspiring.
In the aftermath of the elections, Republican lawmakers across the country — and they are nearly all Republican — have moved to undermine those voter-approved ballot measures, or to impose new restrictions on the franchise.
The boldest version of this has played out in Wisconsin, where the GOP-controlled legislature followed the example North Carolina set in 2016 and used the lame duck legislative session to grant themselves additional powers at the expense of the new incoming Democratic governor and pass a grab-bag of policy priorities. One is a two-week limit on early voting.
Similar machinations are underway in Michigan, where the Republican-held legislature is using the lame-duck session to fiddle with two voter-approved constitutional amendments to expand voting access and prevent partisan gerrymandering.
In Arizona, Florida and North Carolina, measures are being floated to the press, grinding their way through the legislature, or being mishandled in ways that would restrict access to the ballot or otherwise make voting more difficult.
Not coincidentally, these large, populous, varying-degrees-of-purple states will be essential in determining the outcome of the 2020 elections.
“It’s a contagion,” Rick Hasen, an election law professor at the University of California Irvine who runs the Election Law Blog, told TPM. “What’s so shocking about it is that it’s spreading. It’s not just that one legislature is out of control, it’s that it’s a changing of the norms towards using maximal political power even in the face of a political rejection.”
“The old move was voters sent us a message, we lost, we’ll compromise,” Hasen continued. “And now it’s voters sent us a message, they don’t like us, we’re going to hold on to whatever power we can still hold onto—including through manipulation of the rules related to elections.”
Governing bodies meddling with voter-approved initiatives and making changes to electoral rules is not new. Nor is it solely the practice in conservative locales (the Washington, D.C. city council is particularly notorious for overturning popular referendum reforms).
But it is the rushed, reactionary effort to limit access to voting in the wake of unwanted electoral results that is alarming elections experts.
In an interview with TPM, Myrna Pérez, leader of the Brennan Center’s Voting Rights and Elections project, referred to this as the “repeated and concerted effort for a cadre of politicians whose constituents are declining to try to maintain and assert power.”
In Wisconsin, for example, Republicans in the legislature took just days to pass a mammoth bill package that does everything from grant them control over the state’s economic agency to limit incoming Democratic Gov. Tony Evers’ power to implement legislation. The bill also restricts early voting in the state to a period of two weeks.
Outgoing Republican Gov. Scott Walker is expected to sign the package into law, and Democrats are already preparing to sue to block certain provisions, particularly the early voting limit.
Local progressive group One Wisconsin is working with attorneys at D.C. firm Perkins Coie on possible litigation. A federal court in 2016 ruled in their favor against similar early voting restrictions that a judge said “intentionally discriminate on the basis of race”; Republicans have appealed that ruling.
“Republicans are thumbing their noses at a federal judge’s order, and we are conferring with our counsel about next steps to protect the sacred right to vote,” One Wisconsin Executive Director Scot Ross told TPM.
The situation is slightly more nuanced in Michigan. While the GOP-controlled legislature is waging a full-bore attack on other voter-approved ballot measures like recreational marijuana and a minimum wage increase, the two voting-related measures were constitutional amendments, making them more difficult to alter. But lawmakers are still tinkering around the edges, worrying the groups who got the measures passed.
Proposal 3 was a sweeping measure to enact same-day and automatic voting registration and no-reason absentee voting. Since Proposal 3 passed, the Senate Elections Committee has already passed provisions that would require voters to register in person only at a county clerk’s office and allow only a clerk or assistant clerk to register voters.
Todd Cook, campaign manager at Promote the Vote, the lead group behind Proposal 3, told TPM that his group had originally envisioned a system where voters could register at their polling site on Election Day. They had hoped, he said, that Proposal 3 would enshrine Michigan’s current system that allows clerks to deputize other trained election workers to register voters.
Cook said that the limitations included in the proposed bills would reduce access to the ballot for college students, in cities where an individual clerk may not have the capacity to register thousands of voters, and in rural areas that may not have a clerk’s office. He’s also concerned that the bills are being rammed through during the lame duck.
“The fact that basically in a week there’s now been one, two, three versions of this bill shows that there’s work that needs to be done,” Cook said. “We don’t want to rush it through and have there be mistakes, especially mistakes that mean that certain voters are disenfranchised.”
A separate bill defines how the incoming Democratic attorney general can determine the political affiliation of applicants to a bipartisan redistricting commission created thanks to the voter-approved Proposal 2. Voters Not Politicians, the group behind the measure, is speaking out against the legislature’s “unnecessary” and “unconstitutional” effort to interfere with the commission.
Efforts to control or limit access to the ballot are also bubbling up in other states where Democrats made significant headway in the midterms.
North Carolina’s legislature is trying, again, to rig county election boards to guarantee that the GOP holds the chair in election years. A similar scheme was ruled unconstitutional following a lawsuit that Democratic Gov. Roy Cooper filed after taking office in 2016.
In Arizona, Republican leaders are threatening to strip election-related duties from the first Democrat in half a century to serve as the elections recorder in populous Maricopa County. These moves come after Maricopa County voters helped tip a close U.S. Senate race to Democrat Kyrsten Sinema.
Activists in the state say they’re gearing up for attacks on early voting and the expanded use of emergency voting centers in counties like Maricopa as soon as the legislature reconvenes in January.
“Quite a few Republican legislators have been complaining about the long ballot counts and been saying that we need to crack down on early voting so that there aren’t so many early ballots to count that show up late in the process,” Joel Edman of Arizona Advocacy Network told TPM.
In Florida, state officials have not instructed county election supervisors on how to implement a game-changing ballot amendment that would restore the franchise to 1.4 million residents with felony convictions. Without clear guidance and updates to the current registration forms, the affected Floridians risk registering improperly and getting hit with felony voter fraud charges.
How these matters are handled could shape the way the critical 2020 election plays out. That cycle will determine not only whether Donald Trump serves another four years but how much control each party has of state legislatures before the once-a-decade redistricting process.
In the wake of the midterms, Democratic groups celebrated the passage of the ballot measures in states like Florida and Michigan, predicting that more of their voters will be able to participate in the 2020 races.
Yet the prospect of an expanded electorate is far from guaranteed.