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Analysis

Lawmakers Are Targeting the Courts that Could Shoot Down Voter Suppression Laws

They want to make voting harder — and make it harder for voters to fight back.

This origin­ally appeared in the Wash­ing­ton Post

By the Bren­nan Center for Justice’s count, state lawmakers have intro­duced more than 360 voter suppres­sion bills across the nation, and the aim seems clear: Despite rhet­or­ical nods to protect­ing “elec­tion integ­rity,” it’s a collect­ive Repub­lican effort to suppress the vote in future elec­tions. As Stacey Abrams, the former Demo­cratic minor­ity leader of the Geor­gia state House explains, these bills “are respond­ing to the big lie, to the disproven, discred­ited and, sadly, the blood-spilled lie of voter fraud.”
 
But not only are states trying to restrict access to the ballot box, in many instances, they’re also trying to make it harder for voters to protect their rights in court.
 
A new Bren­nan Center analysis iden­ti­fied at least 93 bills in 26 states intro­duced this year that threaten judi­cial inde­pend­ence by limit­ing courts’ power or inject­ing more polit­ics into state judi­ciar­ies. Accord­ing to the analysis, in at least eight of these states, bills have specific­ally targeted elec­tion-related cases. And in 21 states, broader court bills were intro­duced that would impact elec­tion cases, among others, by chan­ging how judges are selec­ted, which courts hear cases chal­len­ging the consti­tu­tion­al­ity of state actions or how judi­cial decisions are enforced. It’s a danger­ous trend that leaves voting rights at risk and under­mines a crit­ical check against abuses of power during our elec­tions.
 
In 2020, courts played a crit­ical role ensur­ing mean­ing­ful access to the ballot during the pandemic and prevent­ing govern­ment offi­cials with partisan — and some­times nakedly racial — motiv­a­tions from trying to skew or over­turn elec­tions. In Pennsylvania, for example, the state Supreme Court exten­ded the dead­line for return­ing mail ballots in response to U.S. Postal Service delays, prompt­ing claims by Repub­lican lawmakers that an “activ­ist court” was “allow­ing one party to steal this elec­tion.” Elec­tion rulings like these are making the courts a target now for partisan retali­ation and manip­u­la­tion.
 
In Geor­gia, where voters of color exper­i­ence longer wait times at the polls, the voter suppres­sion bill recently signed by Repub­lican Gov. Brian Kemp includes a provi­sion that makes it more diffi­cult for a judge to expand polling place hours — some­thing courts did in recent elec­tions after power outages, delayed open­ings and other logist­ical chal­lenges at specific polling places.
 
In Kansas, Repub­lican lawmakers enacted a bill in May over the Demo­cratic governor’s veto that prohib­its state courts from alter­ing the state’s elec­tion laws — a provi­sion that would make it harder for judges to accom­mod­ate voters in situ­ations involving a pandemic or a natural disaster.
 
In Texas, Repub­lican lawmakers have pushed a bill that would change which judges hear certain elec­tion-related cases. The meas­ure would disqual­ify judges from hear­ing cases involving an elec­tion offi­cial in their own geographic area — a move that appears targeted at shut­ting out judges elec­ted in Demo­cratic-lean­ing parts of the state. The bill gives the region’s presid­ing judge, who is appoin­ted by the state’s Repub­lican governor, the power to pick a judge to hear these chal­lenges instead.
 
State courts have also been a target in Kentucky, where a law contain­ing some posit­ive meas­ures to expand voter access was enacted in April with bipar­tisan support. But that new law contains language which says that only the state legis­lature may “suspend or revise any stat­ute pertain­ing to elec­tions” — which could be used to try to stop courts from strik­ing down uncon­sti­tu­tional elec­tion laws.
 
Beyond meas­ures that specific­ally take aim at courts’ elec­tion-related powers, other bills appear to be targeted at discour­aging courts from wading into demo­cracy-related cases. In Pennsylvania, the Repub­lican-controlled General Assembly is consid­er­ing a proposed consti­tu­tional amend­ment that would require the state’s appel­late judges, who currently run in statewide elec­tions, to run in districts. This would open the door to judi­cial gerry­man­der­ing, enabling lawmakers to oust judges by draw­ing districts along partisan lines. This proposal gained momentum after Pennsylvania courts heard a number of elec­tion-related lawsuits in 2020, includ­ing the state high court’s ruling on mail ballots. (Proponents missed the oppor­tun­ity to put this amend­ment before voters on the May primary ballot, but there is still time for it to be placed on the Novem­ber ballot.)
 
And in Tennessee, a Nashville judge’s decision expand­ing access to absentee voting last year because of the pandemic promp­ted a resol­u­tion that would have begun formal proceed­ings to consider her removal. When that effort failed, the Repub­lican-controlled legis­lature — still intent on avoid­ing decisions like the one issued by the judge in Nashville — sought to create a new statewide court to hear consti­tu­tional chal­lenges. A watered-down version of this bill, which requires three judges from differ­ent parts of the state to hear cases, was just sent to the governor for his signa­ture. The idea, accord­ing to Repub­lican state Sen. Mike Bell, is to dilute the power of judges “elec­ted by the most liberal constitu­ency in the state.”
 
These bills mean that voters, frequently Black and Latino, are being hit with a one-two punch: efforts that attempt to suppress their votes while also suppress­ing their abil­ity to fight back using the legal system.
 
One essen­tial func­tion of state courts is guard­ing against legis­lat­ive efforts to under­mine demo­cracy. In 2020, courts in several states played exactly that role. But if legis­latures get away with neuter­ing state courts, it will be more diffi­cult in future elec­tions for our demo­cracy to be restored when threatened.