New electoral laws in Texas, Kansas and Georgia are on trial for attempts to criminalize voting-related behavior, which is another focal point in electoral law litigation across the country.
Dozens of states passed new laws in the 2020 election that either expand or restrict electoral rules, sparking an increase in election-related litigation. But until now, most electoral laws have regulated how election officials conduct elections and have not provided for criminal sanctions.
In a handful of states, there is a new push to impose criminal sanctions on a wider range of activities that go beyond traditional electoral fraud and affect not just individual voters, but also volunteer groups and electoral officials.
Under a new Texas law, an election officer could go to jail for encouraging citizens to vote by post. In Kansas, volunteers could be charged with a crime for posing as election officials. In Georgia it has become an administrative offense to distribute food or water to voters standing in line.
“It wasn’t uncommon in the American past, but it really feels like a new twist in the law of electoral administration,” said Alex Keyssar, a professor at Harvard University’s Kennedy School who has studied the history of suffrage.
Proponents of these bills said meddling in the electoral process posed a threat to democracy and that some violations would be prosecuted.
“This is serious business. We have seen cases of either willful fraud or simple sloppiness [voters] are disenfranchised, ”said Jason Snead, executive director of the Honest Elections Project, a nonprofit conservative group that intervenes in election lawsuits.
A Houston polling officer processed postal ballot papers prior to election day last November.
callaghan o’hare / Reuters
Liberal groups, including the American Civil Liberties Union, say these laws will discourage participation from voters, volunteer groups, and election officials who fear criminal penalties.
“We are not going to arrest older women and our volunteers,” said Celina Stewart, chief attorney for the League of Women Voters, a non-partisan group that helps voters and lawyers on voting issues.
The League of Women Voters has suspended voter registration in Kansas, where state lawmakers passed law in March making it a crime to knowingly offer education or support that could lead someone to believe they were an election officer. In legal filings, the state said the law will help ensure public confidence in the electoral process.
The league has sued Kansas state officials over the new law, claiming that it will deter speech in violation of the First Amendment and is overly vague as it is unclear what types of activities could be criminal under that law.
Republican-appointed Shawnee County District Court Justice Teresa Watson denied the League of Women Voters’ motion to temporarily enact the law earlier this month. It reiterated claims by state officials that the requirement that prosecutors prove that someone “knowingly” posed as an election officer protects against a well-meaning volunteer who accidentally breaks the law and undermines plaintiffs’ claims of freedom of speech and vagueness . The state has an interest in protecting the integrity of the electoral process.
A law passed in Texas earlier this month introduces several new election-related crimes, including punishing election officials with up to two years in prison for soliciting absentee ballots from voters who did not solicit them . It also makes it a crime for anyone to receive compensation for assisting a voter in a postal vote, and makes it an administrative offense for an election officer to refuse to accept an election observer – partisan volunteers watching polling stations and potential irregularities their respective parties report in the election.
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A number of plaintiffs, including a 2020 election worker and the Harris County election administrator, have sued Texas since the law was passed. These lawsuits allege that these new crimes are in some cases in violation of the First Amendment, the Americans With Disabilities Act, the Voting Rights Act, and Criminal Justice Protection. The state has not yet responded to these complaints.
When Texas Governor Greg Abbott signed the bill in early September, he said it made it easier for the people of that state to vote. “However, it also ensures that it is more difficult for people to cheat on the Texas ballot box,” he said.
Mr Snead said local officials encouraged voters to send ballots out during the 2020 election even if they didn’t meet Texas requirements, putting them at risk of wasting their votes. “Basically, we have to remember that some of the actions or attempts by these officials were endangering people’s right to vote,” he said.
The New Georgia Project is suing its home state in part over the law criminalizing the distribution of food and water. “The real danger is that even if the allegations are nonsense, you’ll have to defend yourself,” said Nsé Ufot, executive director of the New Georgia Project.
In a motion to dismiss the lawsuit, Georgia Attorney General Christopher Carr said “the plaintiff’s rhetoric is inconsistent with the reality of legislation,” which he described as “well within the mainstream” of other state electoral laws.
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