By Kyle Davidson, Michigan Advance
This article was part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations covered how democracy works and the threats it faces. To learn more, visit usdemocracyday.org
Michigan has made strong progress in protecting voters’ rights and access to the ballot box in recent years, especially compared to other states, advocates say. However, state lawmakers and national voting rights advocates aren’t becoming complacent, as they’re continuing to push for solutions to fill gaps in voter protections.
Over the past five years, Michiganders have expanded voting access through ballot proposals in the 2018 and 2022 elections. In 2018, Michiganders voted in favor of Proposal 3 which added same-day voter registration, no-reason absentee voting, straight-ticket voting and more to the state constitution.
Then in 2022, voters approved Proposal 2 which recognizes a fundamental right to vote, provides for early voting up to nine days before an election, and allows voters to use a photo ID or sign an affidavit to verify their identity. The proposal also ensures absentee ballots cast by military members and people living overseas are counted if they are completed and postmarked by election days, protects access to ballot drop boxes, allows voters to place themselves on a permanent absentee voter list and the right to prepaid postage and ballot tracking for absentee ballots.
These changes have been cheered by both local officials and national voting rights advocates for expanding Michiganders’ freedom to vote.
“Voters have demanded the increase in access to the ballot box for years, and the Republican Legislature has failed to act for years, and as a result, the voters took matters into their own hands,” said Ingham County Clerk Barb Byrum, a Democratic former House member.
Michigan Secretary of State Jocelyn Benson, a Democrat, told the Advance this week that it’s been striking to see how voters from both sides of the aisle have embraced expanded options to register and vote within the state, in part, because these changes were driven by voters.
“It’s remarkable that even a pandemic and a extraordinary amount of misinformation and collective efforts to interfere with our elections process or deter people from voting — none of that has impacted or slowed citizens’ determination to participate in our elections,” Benson said.
“If you really make voting more convenient, secure and accessible to everyone, people will embrace those changes, those options, and you’ll see an uptick, an increase in participation accordingly,” Benson said.
While Michigan has expanded voting rights at home, these rights have come under fire nationally in recent years, with efforts to restrict voting posing a particular threat to voters of color.
“Unfortunately, what we’re seeing is a backlash that is rooted in white supremacy and in large part a reaction to voters of color making their voices heard in 2020,” said Adam Lioz, senior policy counsel for the New York City-based Legal Defense Fund.
“We’ve seen hundreds of bills introduced, dozens of laws passed. And right now, Black voters specifically are facing the greatest threat of voting rights since the Jim Crow era,” Lioz said.
While arguments in favor of voting restrictions are usually centered on protecting election integrity, Lata Nott, senior legal counsel on voting rights for the Washington, D.C.-based Campaign Legal Center said many of these policies don’t do that.
Nott cited an example in North Carolina of a recently vetoed bill that would make it more difficult for voters to take advantage of same-day voter registration, in addition to reducing the window when absentee ballots will be accepted.
“It’s hard to see how that would really protect election integrity,” Nott said. She noted that many of the laws aimed at reducing election fraud make it harder for voters to cast their ballot.
“There’s nothing that’s connecting drop boxes to election fraud, but there have been measures to basically ban drop boxes. And that just makes it more difficult to return your ballot,” Nott said.
Experts have noted there’s a growing divide between red and blue states, with the former mostly restricting voting rights and the latter largely expanding voting rights.
“We have sort of a divide where we have some states that have worked to restrict it. And other states that have actually done a lot to expand access in the past few years,” Nott said.
As part of that push a number of states have introduced and adopted state Voting Rights Acts that build on the foundation of the federal Voting Rights Act of 1965.
State Voting Rights Acts have been enacted in California, Washington, Virginia, New York and Connecticut, with efforts underway in New Jersey and Maryland.
In June, Michigan Senate Democrats introduced the four-bill Michigan Voting Rights Act, created with Benson’s input. State Sen. Darrin Camilleri (D-Trenton) said he and his colleagues hope to see movement on the package this fall.
Camilleri said the package began as a conversation with Benson in December about what lawmakers could do to protect voting rights at the state level.
The resulting bills were born out of a simple goal to do right by voters and to right wrongs emerging at the federal level, including the weakening of the Voting Rights Act of 1965 and a coordinated effort to weaken democracy, Benson said.
While the Voting Rights Act of 1965 outlawed discriminatory voting practices, experts say it’s extremely difficult for voters to argue for their rights under the law, especially in light of recent U.S. Supreme Court decisions.
Challenges under the federal voting rights act are very expensive and very time consuming, so many potential violations go unaddressed because voters don’t have the resources to uncover violations or to hire legal counsel to bring the case, Lioz said.
These cases can also be extremely costly to jurisdictions facing a Voting Rights Act lawsuit, Lioz said.
“These lawsuits often require hiring of multiple expert witnesses on either side of the lawsuit. So costs can really run into the millions of dollars and can take several years, which is not great for anyone,” he said.
Additionally, voting rights advocates say many of the law’s key protections have been gutted by the Supreme Court through decisions like Shelby County V. Holder and Brnovich v. Democratic National Committee.
Mark Brewer, a former Michigan Democratic Party chair who’s an election law attorney at Goodman Acker P.C., said Section 2 of the Voting Rights Act which protects against vote dilution — or the denial of voting rights on the grounds of their race, color or membership in a language minority group — has been watered down significantly by the court.
The federal law also contains notable gaps when it comes to providing access for voters with disabilities or who may not speak English as their first language.
The Michigan Voting Rights Act, which consists of Senate Bills 401 through 404, would aim to fill gaps in the federal act and make it easier for minority communities to enforce their rights. The bill centers on protections against vote dilution alongside stronger protections for language access, enhanced protections for voters with disabilities and protections from voter intimidation, coercion or deception.
While Michigan has come a long way in expanding access to the ballot, outright discrimination still occurs, Brewer said.
“Polling places are moved or closed without adequate notice, or it’s done in a way that has a disparate impact on minority voters. Whether it’s intentional or not, right, the effect is discriminatory. We need to put a stop to it,” he said.
An audit of metro Detroit polling places conducted by the Carter Center found that while 25% of Michigan residents have disability, 84% of polling places audited were inaccessible. However, the Michigan Voting Rights Act would enhance and clarify protections for voters with disabilities or who otherwise need assistance to vote.
While the federal Voting Rights Act sets a floor for when local governments must provide voting materials in another language, and protects access for speakers of Asian languages, Native American languages and Spanish, the federal act does not thoroughly cover Middle Eastern and North African languages, Nott said.
With Michigan having the second-largest Middle Eastern and North African population in the nation, the Michigan Voting Rights Act will ensure their rights are protected, Brewer said. The language access provisions in the package will also strengthen protections for other language minorities by defining how large a language minority population has to be for local governments to provide language assistance.
The Michigan Voting Rights Act package would also make it easier for citizens who feel their rights have been violated to bring claims, and would encourage citizens to negotiate with their local jurisdiction to find a solution, providing an opportunity to avoid legal action, Lioz said.
The package would also help localities identify discriminatory voting policies before they are enacted by creating a “preclearance” system where certain local jurisdictions must obtain approval from the Secretary of State or a court before making voting changes.
Where preclearance provisions in the federal Voting Rights Act were invalidated by the U.S. Supreme Court, state voting rights acts can restore this system, and determine which jurisdictions will need to be covered by the preclearance process, as well as what changes need to be cleared and by whom, Nott said.
The package would also create a central database on voting and demographic data. This database would not only help lawyers handling voting rights cases, but could also act as a resource to study elections in Michigan, Brewer said.
“It’ll certainly help litigators, but it’ll have broader purposes beyond that,” Brewer said.
While these policies would provide protections to Michigan voters facing discrimination at the ballot box, they would also help guard against future threats to democracy, Camilleri said.
The Voting Rights Act has always been a shield and a sword, Benson said: A sword to address unknown election and voter intimidation challenges and a shield against future evolving threats.
Alongside protecting voters through the Michigan Voting Rights Act, Benson has also asked Michigan lawmakers to pass bills classifying intimidating election officials from performing their job as a felony punishable by up to five years in prison and a $1,000 fine.
“We have to protect the people who protect democracy,” Benson said.
“As misinformation has spread and proliferated throughout our country, and particularly around elections, our election officials have been on the front lines of enduring threats and violent rhetoric,” she said.
Additionally, funding for election infrastructure is one of the most critical and consistently unmet needs to defend democracy, Benson said.
While elections were deemed critical infrastructure years ago, that is not evident based on the funding that election officials have received, Byrum said.
And while Michigan has stepped up to provide additional funding for elections and election infrastructure, the federal government has yet to match that investment, Benson said.
“Misinformation has become particularly critical as well over the last several [election] cycles, and noting that, the federal government has a critical role to play in ensuring that we’ve got the funding we need to secure our elections and ensure that the infrastructure itself is is protected from any external efforts to impact insecurity,” Benson said.
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