Analysis: US midterms: 42 new voting laws since 2021 risk undermining confidence in U.S. democracy

A hand putting a ballot in a voting box
A hand putting a ballot in a voting box

Matthew Schlachter (UCL Institute of the Americas) explores in The Conversation what new restrictive voting laws could mean for Americans’ confidence in democracy.

Soon after the first results had been declared in the 2020 US midterm elections it became clear that the "red wave" of Republican victories many pundits had thought would hand them control of both houses of Congress was not materialising as expected. And what was especially marked was that candidates backed by the former president, Donald Trump, had not fared well.

Many of these Republican candidates had followed Trump in denying the validity of the results of the 2020 US presidential election, something which may affect his decision about whether to run for the presidency in 2024.

This year’s midterms are highly consequential, with the US president, Joe Biden, a Democrat, declaring that "democracy is at risk". After the 2020 election, which should have been heralded for a record-breaking turnout instead engendered conspiracy theories from the right wing of the Republican party. These have sowed doubt on the legitimacy of the election results among a significant minority of the US population.

As highlighted in a poll conducted by CNN in July 2022, only 57% of registered Democrats, 38% of independent voters and 29% of registered Republicans "said they were at least somewhat confident that elections reflected the will of the people". But the root causes for such levels of confidence in election outcomes - or lack thereof - remains different for each set of voters.

For Republicans, many still possess lingering doubts about the validity of the 2020 US presidential election - despite claims of pervasive voter fraud continuing to be entirely unsubstantiated. On the other hand, many Democrats express concerns about the representative nature of future elections. A great deal of these concerns are due to the introduction of new voting laws - limiting postal voting, for example,or expanding voter ID requirements and reducing the number of places people can vote - that some argue make it more difficult for people to vote. This is thought to disproportionately affect voters from ethnic minorities that typically tend to lean Democratic.

The Brennan Center for Justice, a non-partisan organisation that monitors states’ voting rights, has identified a raft of new legislation in multiple states that affect voting rights.

The Brennan Center went on to assert that the ten restrictive state laws passed in 2022 is the second-highest number (behind 2021) of such laws enacted in any single year in the past decade. "This is particularly noteworthy since this is an election year, which typically has less legislative activity overall than nonelection years."

Of those 20 states that have adopted new restrictive voting laws in time for the 2022 midterm elections, most are typically Republican-voting states (Alabama, Arkansas, Idaho, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah, Wyoming). Nevertheless, even traditionally Democratic-voting New York has introduced new legislation that affects absentee voting.

But, perhaps of most significance - and possible impact - are the new voting laws introduced in the swing states of Florida, Iowa and New Hampshire as well as Arizona and Georgia - two states that only narrowly voted for Joe Biden in 2020.

Georgia’s S.B.202 is perhaps the new voting law - which even makes it illegal to supply food or drink to someone standing in line to vote - that has received the most attention. The American Civil Liberties Union has argued that the "bill attacks absentee voting, criminalises Georgians who give a drink of water to their neighbours, allows the state to takeover county elections, and retaliates against the elected secretary of state by replacing him with a state board of elections chair chosen by the legislature".

The passage of the bill also received backlash from prominent corporations and prompted Major League Baseball to move the 2021 All-Star Game from Atlanta to Denver. Biden went so far as to describe Georgia’s new law as "Jim Crow in the 21st century."

In light of these new voting laws coming in to force, many have expressed concerns about the possible implications for voters, particular people from ethnic minorities. Studies have shown that voting laws that require ID disproportionately effect voters of colour and result in an enlarged racial turnout gap. Voting laws that also remove mandatory early voting on Sundays - such as Georgia’s new bill that made it optional - reduce black voter turnout.

Despite these concerns, a recent study by American political scientist Alan Abramowitz argues that efforts by Republican-controlled state legislatures to suppress turnout by Democratic-leaning voter groups by imposing restrictions on absentee voting, early in-person voting and the use of drop boxes, or by requiring that voters present photo identification, are "unlikely to bear fruit."

According to Abramowitz, "such efforts could even backfire by angering voters who are targets of these efforts and by causing left-leaning voting rights groups to increase their voter registration and GOTV [get out to vote] efforts." Indeed, such arguments have been made by Georgia’s Republican secretary of state, Brad Raffensperger, to defend the state’s new laws. He said recently that the fact that the number of people voting on Sunday before the elections is more than twice that of 2018, "shows that voters are enthusiastic, but most importantly, have the options available to get that vote in early."

Of course, the true impact of these new voting laws will only be properly understood after the 2022 midterm elections have taken place. Even then, it may take some time to accurately account for turnout disparities that may have occurred as a consequence of such laws coming into effect.

Regardless, the ability to exercise one’s democratic choice by participating in free and fair elections should not be up for debate. The fact that such concerns are now widespread - on all sides of the political divide - is a worrying state for American democracy to be in.

This article first appeared in  The Conversation  on 9 November, 2022.