Where Is Voting Under Threat?

Numerous studies of alleged voter fraud in recent elections have demonstrated that illegal voting is exceedingly rare. Nonetheless, baseless charges of intentional irregularities are fueling efforts across the country to legislate new restrictions to voting or increase the number of practical hurdles facing eligible citizens who wish to exercise their right to vote. We asked Justin Levitt, professor of law and Gerald T. McLaughlin Fellow at the LMU Loyola Law School, to describe some of the hot spots around the United States where citizens may confront changes in voting rules that could make it harder to cast their ballot in the November 2024 election.—The Editor.

Huntington Beach, California: Voter ID

Every jurisdiction has some way to ensure that voters are who they say they are, including a federal requirement, nationwide, that voters registering to vote by mail prove their identity by matching personal information (like SSN or driver’s license number) or providing documentation from an expansive list. Other areas have added more or less restrictive documentation requirements on top of that baseline. In March 2024, the City of Huntington Beach approved a local measure purporting to authorize the city council to impose additional voter ID requirements for all municipal elections; the city has not yet decided whether or how to implement this new power. Huntington Beach does not conduct its own elections, and aside from the administrative controversy in asking Orange County to agree to implement a new requirement for one limited set of races, the new measure has already drawn a lawsuit from the state, contending that it violates state law.

Little Rock, Arkansas: Voting Rights Act

The Voting Rights Act of 1965 is one of the nation’s most successful civil rights statutes. The Voting Rights Act was written at a time when federal law allowed private entities to enforce individual rights without express statutory permission for private enforcement, and so the VRA doesn’t explicitly state that private individuals can bring their own VRA cases. But from its inception, the VRA has been enforced both by the U.S. Attorney General and by private individuals and organizations, like the NAACP Legal Defense Fund — and Congress, in multiple revisions of the VRA, has not disturbed that status quo. In February 2022, in a case challenging the drawing of Arkansas congressional districts, a federal trial court in Little Rock held for the first time ever that private plaintiffs have no authority to bring cases to enforce the VRA. An appellate court affirmed in late 2023. And if other courts find the rationale compelling, Supreme Court proceedings may follow.

Baton Rouge, Louisiana: Redistricting

The Louisiana legislature passed a congressional redistricting plan in 2022 that, according to a federal court, likely violated the Voting Rights Act — but the Supreme Court put the remedy on hold while it heard a related case. In the meantime, the 2022 elections were held under maps that probably discriminated against the Black community. Ultimately, the legislature drew a new map, but created a new problem while purporting to take care of the old one, and now a different federal court has struck that remedy. The case is a procedural mess, with all sorts of game-playing by the legislature and substantially aligned litigants — and though there’s a temporary Band-Aid in place, Black voters will have to wait at least another two years before they get to take part in a fair election under lines they can depend on for the rest of the decade.

Harrisburg, Pennsylvania: Mistakes That Don’t Matter

In Pennsylvania, the outer return envelopes for mail-in ballots come with a line for a signature and date. That date doesn’t matter — the ballots all have to be returned by election day anyway, and election officials have said they don’t use the date to check anything — but the state courts have said that under state law, a correct date is mandatory … and threw out nearly 10,000 votes in 2022 based on a missing or incorrect date. A federal civil rights statute says that no error or omission on any paper requisite to voting can be the cause of disenfranchisement if it’s not material to the voter’s eligibility, but a federal court of appeals has said that provision doesn’t apply to papers like the outer envelope of a ballot. And now advocates are contemplating appealing to the Supreme Court to make sure that mistakes that don’t matter don’t matter.

Fredericksburg, Texas: Hand-counting Results

Those of us who remember the election of 2000 know well that counting ballots by hand can be slow, expensive, and riddled with errors. It’s good practice to audit the results of machine-counted results with a careful hand-count review of a random percentage of ballots, just to double-check to make sure the machines are working. But counting all of the ballots by hand in the first instance, particularly in an election with any significant volume of ballots, is a recipe for accuracy theater that actually makes the results lessreliable. In an effort fueled by conspiracy theory about tabulating machines cut off from the Internet and subject to rigorous testing, several counties nationwide have attempted to count ballots by hand in various elections over the last few years but have usually been stopped by state officials or courts.  Gillespie County, Texas, was one of the few counties that actually went ahead with it — including multiple errors — and now onlookers are waiting to see what other jurisdictions try to follow their lead.

Madison, Wisconsin: Drop Boxes

Ballot drop boxes are like really secure (tamperproof, fireproof, bolted down) public boxes for sending U.S. mail, but managed by election officials, with ballots collected each day leading up to an election without depending on postal service delivery patterns. They provide a convenient 24/7 means for voters to return mail ballots, including on election day itself. But in part because of debunked conspiracy films like “2000 Mules,” they have become sources of controversy. In 2022, a narrowly divided conservative Wisconsin Supreme Court interpreted the state law — which doesn’t specifically mention ballot drop boxes — to permit only returning a ballot by mail or returning it directly to a municipal clerk. Then a more progressive state justice won election to the court, flipping the court’s orientation … and then the decision on whether drop boxes would be legal in the state. The public’s trust in the boxes, though, has been undeservedly dinged by the dispute, and it’s not clear how widely they will be used in November, or whether other conspiracies will follow. 

Raleigh, North Carolina: Partisan Gerrymandering

The state supreme court in North Carolina is the mirror image of Wisconsin: One seat on a narrowly divided progressive court changed hands in 2022, and now the majority is quite conservative. Before that election, the state court found that extreme partisan gerrymandering violated the state’s constitution. But in 2023, the newly constituted court revisited that decision, and changed its mind. North Carolina legislators were free to redraw the lines without either state or federal constraints on drawing the lines to benefit partisan friends and punish partisan opponents. And in a state that has reliably split very close to 50-50 in statewide contests, the congressional plan is expected to favor 10 or 11 Republicans out of 14 congressional seats this fall.

Phoenix, Arizona: Fake Electors

Despite numerous counts and recounts confirming the winner of the 2020 presidential election, and despite any reliable evidence calling those results into question, there was a conspiracy in several states to attempt to convince state officials (and ultimately Congress) to simply declare the runner-up to be the winner. The conspiracy failed in its primary goal, but the conspiratorial infection metastasized, including prominent Arizona candidates for governor, attorney general, and secretary of state who narrowly lost their 2022 races and falsely claimed fraud as the reason. In April 2024, though, Arizona joined three other states (Nevada, Michigan and Georgia) in filing criminal charges against the individuals who falsely presented themselves as 2020 electors for the state, and those who conspired to help them. It remains to be seen whether a measure of accountability for blatant fraud will help break the fever, or further feed the flames.

Lansing, Michigan: Expanding Opportunities To Vote 

Many of the battleground states have tightened voting procedures, but Michigan has created more opportunities for eligible voters to vote conveniently. First, in the fall of 2022, a citizen-initiated ballot measure passed by sizable margins, giving Michigan voters more opportunities to vote before election day, more opportunities to register, more opportunities to return ballots to secure drop boxes, and more security in official-run audit procedures. Then, the next year, the legislature followed on by protecting election workers, banning deepfakes and expanding voter registration to make it even more of a one-stop experience. 2024 will be the first big test of the new rules.

Tallahassee, Florida: Disenfranchisement For persons With Felonies

Before 2018, Florida was one of only a handful of states permanently disenfranchising citizens convicted of felonies; that lifetime ban was responsible for disenfranchising more than a million Floridians. Citizens put a measure on the ballot restoring voting rights to people after completing their sentences, and it passed by significant margins — and then the legislature interpreted the measure to require payment of court costs and fees before regaining voting rights. Here’s the catch: State records are so fragmented that the state has no ready means for people to find out what they still owe, creating a trap for most people with a felony conviction, even decades in the past. Litigation may be over, but the controversy is still very much live, and more than 900,000 people who have done their time are still on the outside looking in.

Boise, Idaho: Student Voting

Every jurisdiction has some way for voters to prove that they are who they say they are; the fights tend to be about how permissive or restrictive those rules are, potentially leaving eligible voters on the outside because they don’t have a particular form of documentation. In 2023, Idaho changed the forms of identification that voters could use to prove their identity at the polls, excluding student identification from the list. This year, the Idaho Supreme Court upheld the restriction. The Montana legislature had passed a similar law two years earlier, but the Montana Supreme Court came to the opposite conclusion just before its neighbor to the west, striking down the restriction on student ID.

Justin Levitt, the Gerald T. McLaughlin Fellow at the LMU Loyola Law School, is a constitutional law expert who served from 2021–22 as the White House’s first senior policy advisor for Democracy and Voting Rights. He also has been deputy assistant attorney General I the Civil Rights Division of the U.S. Department of Justice.