by Emily Pecot
Across the country, concerns over voting rights and the integrity of the electoral process have led to a surge in legal actions ahead of Election Day 2024. Fueled by the false claims of election fraud in the 2020 election, lawmakers in multiple states enacted laws restricting voter eligibility and changing voting procedures.
In response, civil rights organizations like the American Civil Liberties Union (ACLU) and the NAACP filed lawsuits nationwide, alleging violations of the Voting Rights Act of 1965, which prohibits discrimination in voting nationwide on the basis of race or being a member of a language minority group. These legal challenges are rapidly reshaping the voting rights landscape, with the potential to significantly impact state, local, and national elections.
Tyler Sterling, the NAACP’s national mobilization director, told The New York Times, “It is appalling and unfortunate that state-sanctioned voter suppression continues in a time when we have seen some of our safest elections across the country.”
Georgia Election Board makes new rules
In Georgia, the Democratic National Committee and the Democratic Party of Georgia is suing the Georgia Election Board over election measures it approved in August 2024. One of these measures allows the Georgia Election Board to “demand reasonable inquiries” if any member has questions about the outcome of an election, thereby delaying certification of Georgia’s election results.
According to the lawsuit, “These novel requirements introduce substantial uncertainty in the postelection process and—if interpreted as their drafters have suggested—invite chaos by establishing new processes at odds with existing statutory duties.”
In a statement regarding the measures passed in August 2024, Georgia Secretary of State Brad Raffensperger said, “Activists seeking to impose last-minute changes in election procedures outside of the legislative process undermine voter confidence and burden election workers. Misguided attempts by the State Election Board will delay election results and undermine chain of custody safeguards. Georgia voters reject this 11th-hour chaos, and so should the unelected members of the State Election Board.”
At press time, a hearing was scheduled on the matter for October 1, 2024.
On September 20, 2024, coming less than two months before the election and three weeks before early voting starts in the state, the Georgia Election Board approved another rule that would require all ballots in all districts to be hand-counted.
“Military ballots have already been issued,” Ethan Compton, elections supervisor in southern Georgia’s Irwin County told The Washington Post. “The election has begun. This is not the time to change the rules. That will only lower the integrity of our elections.”
The Georgia Election Board had been warned by Georgia’s Attorney General’s Office that the hand-counting rule would run afoul of state law, which doesn’t allow local election workers to hand-count ballots before the votes are officially counted.
“These proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do,” the Georgia Attorney General’s office said in a statement. “The Board runs substantial risk of intruding upon the General Assembly’s constitutional right to legislate. When such intrusion occurs, the Board rule is highly likely to be ruled invalid should it be challenged.”
While the Georgia Election Board passed rules, Georgia’s State Legislature passed a law after the 2020 election allowing any registered voter to file unlimited challenges to other voters’ eligibility. According to the Brennan Center for Justice, a nonpartisan law and policy organization, approximately half a million challenges have been filed in Georgia since January 2021.
In July 2024, the Republican Party chair in Bibb County, Georgia challenged the eligibility of 243 voters, placing 45 of them in “challenged status,” which required those voters to take additional steps to prove they are legitimately registered to vote in order to make sure their ballots are counted in November. Also in July 2024, one individual submitted approximately 34,000 voter challenges based on possible address changes. The county elections supervisor began notifying these voters but clarified that non-responses would not result in removal.
Critics of the law, which requires hearings for all challenges, argue that it burdens election officials and intimidates voters.
“Even when denied, voter challenges present major problems. They make election officials waste countless hours. A 2022 challenge to 37,000 voters in Gwinnett County, Georgia forced 5 to 10 election staffers to work ‘all day, every day, six days a week’ for multiple weeks and did not turn up a single ineligible voter,” according to the Brennan Center.
Kansas says ‘no right to vote’ in its constitution
In May 2024, the Kansas Supreme Court ruled on the constitutionality of three election laws passed in 2021. The laws were challenged by the League of Women Voters of Kansas, as well as four other civic engagement groups. The cases were combined into one—League of Women Voters of Kansas v. Schwab.
One law restricts the number of ballots that can be returned on behalf of voters, which voting advocates say affects disabled voters who rely on civic groups to deliver ballots for them. Another law made it a crime to “give the appearance of being an election official.” The Kansas League of Women Voters claimed the law was vague, forcing them to limit their work in registering voters for fear of being arrested. The third law dealt with signature verification, requiring election officials to match the signature on advance mail ballots to voter registration records. The civic groups in that case claimed the law penalized disabled and older voters, whose signatures may not match due to age or infirmity.
The Kansas Supreme Court ruled in the League of Women Voters favor on the impersonation law, saying it “criminalizes honest speech.” The court sent the case back to the trial court for further consideration. The lower court had refused to issue an injunction on the law at the League of Women Voters’ request. The law remains blocked until the trial court issues a final decision.
The Kansas Supreme Court upheld the limiting of ballot collection to 10 ballots, but it was the court’s decision on the signature verification that garnered the most controversy. In upholding the verification law, Justice Caleb Stegall, writing for the majority, claimed that there was no “fundamental right to vote” in the Kansas Bill of Rights. “It “simply is not there,” Justice Stegall wrote.
In a dissenting opinion, Justice Eric Rosen, one of three justices that dissented, wrote, “It staggers my imagination to conclude Kansas citizens have no fundamental right to vote under their state constitution. I cannot and will not condone this betrayal of our constitutional duty to safeguard the foundational rights of Kansans.”
According to the Brennan Center, the Kansas Supreme Court’s majority found that voting is a political right—one that allows citizens to influence the government—not a fundamental right.
“This distinction is crucial because it means that laws that interfere with voting face a lower form of scrutiny from courts,” Andrew Garber, counsel with the Brennan Center’s Voting Rights and Elections Program, wrote in the organization’s State Court Report. “In civil rights litigation, the standard of review applied by courts—how closely they scrutinize government action—is often the decisive factor in whether a law is upheld.”
For example, in Kansas, according to the Brennan Center, laws that infringe on a fundamental right face strict scrutiny by the courts. Strict scrutiny is the highest standard that a court uses to evaluate the constitutionality of a law. If Kansas now finds that voting is a political right, laws that protect voting rights will face less scrutiny when challenged in the courts.
Montana strikes down voting restrictions
The Montana Supreme Court struck down several voter restriction laws in March 2024, ruling them unconstitutional. The laws, passed in 2021, included stricter identification requirements, limits on third-party ballot collection, and the elimination of Election Day voter registration.
The court found that the state failed to provide sufficient evidence that these restrictions were justified, particularly given that voter fraud is extremely rare. The restrictive provisions were invalidated, and previous procedures were reinstated.
The majority opinion of the Montana Supreme Court said, “If the Legislature passes a measure that impacts ‘the free exercise of the right of suffrage,’ it must be held to demonstrate that it did not choose the way of greater interference.”
The ruling is particularly significant for Native American voters in Montana, many of whom live in remote areas. With no easy access to polling places, they rely on third-party ballot collection. In addition, members of Native American tribes often don’t have the necessary identification that the law had required.
Challenging at-large election systems in Kansas & Maryland
At-large election systems were challenged in Kansas and Maryland, with differing results. At-large voting is prevalent in local elections, allowing an entire town to vote for town council members, rather than dividing the city into districts for localized representation.
Aseem Mulji, legal counsel for redistricting at the Campaign Law Center in Washington, D.C., wrote in an article posted to the nonpartisan organization’s website that “the practice of silencing voters of color through at-large election systems was a common vote dilution tactic of the Jim Crow era.” Research from LaGrange College in Georgia, published in 2019, stated that “at-large election systems have shown that they are ineffective in promoting a diverse body of election officials when minority groups are overwhelmed by the voting power of the majority.”
A 2018 survey by the International City/County Management Association, an organization for local government professionals, found that 68% of council members across the country are elected through at-large systems.
Latino residents in Dodge City, Kansas challenged the city’s at-large election system in a federal district trial. In Coca v. City of Dodge City, the plaintiffs, represented by the ACLU, argued that Dodge City’s at-large method of electing local officials dilutes Latino voters’ opportunity to elect the candidate of their choice. Although 63% of Dodge City’s population is Latino, the system effectively blocks Latino candidates from being elected, the lawsuit claimed.
The federal lawsuit was filed in December 2022, and finally went to trial in February 2024. In July 2024, the U.S. District Court for the District of Kansas issued a ruling rejecting the ACLU’s argument.
In April 2024, the town of Federalsburg, Maryland, reached a final settlement for a lawsuit that challenged its at-large election system. The case, initiated by the NAACP and other civil rights groups in 2022, argued the town disenfranchised Black voters. The lawsuit stated that Federalsburg has a “white stranglehold on municipal power” with its long-standing use “of a racially dilutive at-large, staggered term election system, rather than a racially fair system that would afford Black Federalsburg voters an equal opportunity to elect candidates of their choice.” Although the town’s population is 43% Black, no Black candidate had been elected to the town council in the Federalsburg’s 200-year history.
Last summer, as part of the settlement, the town’s leaders, under the supervision of a judge, changed its election system from at-large to a two-district system. As a result, in October 2023, two Black candidates—Brandy James and Darlene Hammond—won town council elections.
Also, as part of the settlement, Federalsburg issued a public apology to its Black residents, which said in part that the town, “formally acknowledges responsibility and expresses its deep regret for actions and inactions contributing to racial discrimination and exclusion of Black residents, including its use of an election system that prevented any Black person from holding a position on the Town Council for over 200 years. As officials of the Town, we accept moral accountability for the harms these actions inflicted upon Black residents, their families and ancestors before them.”
The apology will be framed and posted in the Federalsburg Town Hall.
Discussion Questions
- The Kansas Supreme Court ruled that voting is not a fundamental right under its state constitution. Do you think voting is a fundamental right? Why or why not?
- What do you think about the new rules passed by the Georgia Election Board? How might these rules impede Georgia on Election Day?
- Select one of the laws mentioned in the article that was either upheld or struck down by the Montana Supreme Court or the Kansas Supreme Court. Explain in detail why you agree or disagree with that court’s decision.
Glossary
disenfranchise — to deprive of a privilege or right, such as the right to vote.
dissenting opinion — a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
injunction — an order of the court that compels someone to do something or stops them from doing something.
statute — legislation that has been signed into law.
statutory—enacted by statute.
suffrage—the right to vote.
upheld — supported; kept the same.
This article originally appeared in the fall 2024 issue of Respect–Special Voting Rights Edition.