Voter registration organizations say new laws create legal jeopardy

This story was originally published in Votebeat.

National Voter Registration Day is on Tuesday. Finally, a chance to write about something noncontroversial about elections. 

[Cue record scratch sound].

Never mind.

It’s true that voter registration work has long been held up as nonpartisan civic good. But that’s an oversimplified view. 

Over the years, many a court battle has been fought over state laws that voting advocates say unnecessarily restrict their registration work. And the new slew of voting laws passed by states is sparking new litigation: Nonpartisan groups like the League of Women Voters say some include provisions making it impossible for them to do in-person voter registration work in some states without risking criminal penalties.

“Our work is getting a little tougher, to do what we’ve done for more than 100 years,” said Celina Stewart, chief counsel and senior director of advocacy and litigation for the League of Women Voters, who said the League’s Vote 411 voting-assistance website is still available in states where registering voters in person has become more fraught.

Davis Hammet, president of Loud Light, a Kansas nonprofit with a mission of increasing youth civic participation, has joined with the League in a lawsuit to overturn provisions of a 2021 Kansas law. Hammet said the law has brought the group’s voter registration work to a complete halt. “Leading up to the 2020 election, we had registered almost 10,000 people to vote, predominantly young people,” he said. “And then you get to now, and in the last year we registered, like, none, right? It’s wild.”

The backers of the laws say it isn’t their intention to derail voter registration drives and that the laws are intended to prevent fraud and protect voters. Nonetheless, at least some experts say that like everything else to do with elections right now, partisan impulses may be at play.

“The common wisdom these days is that higher registration helps Democrats and hurts Republicans, even though I think that common wisdom could well be wrong,” Rick Hasen, a UCLA law professor and expert in election law, said in an email. “But that understanding has animated some recent legal changes that make it harder to register voters in some places (often with the false claim that such laws are necessary to prevent voter fraud).”

Besides its suit in Kansas, League of Women Voters chapters in Missouri and Florida, together with other groups that engage in voter registration work in those states, are also suing to overturn the parts of laws they say are interfering with their efforts. Danielle Lang, senior director of voting rights for the Campaign Legal Center, who is representing the League and other plaintiffs in Missouri, said the legal provisions in question are “criminalizing what we think of as good civic participation activity.”

“Encouraging your community members to register to vote falls under any conceivable understanding of what the First Amendment protects,” she said.

For example, the Missouri law, passed in May, includes a provision prohibiting any type of “compensation” for those soliciting voter registration applications, unless they work for the government. It also requires anyone who assists with more than 10 voter registration applications to both be a registered voter and to register with the secretary of state’s office as “voter registration solicitors,” and be subject to criminal penalties. 

In announcing its lawsuit, the League of Women Voters of Missouri said the prohibition on compensating volunteers was so vague, offering free pizza could violate it. 

In Kansas, the 2021 law at issue made “engaging in conduct that would cause another person to believe a person engaging in such conduct is an election official” a felony. Voter registration groups, including the League, say that language is too vague. The groups halted their voter registration work and sued. The state argued it would only criminalize those intentionally misrepresenting themselves as election officials. A Kansas appeals court in June declined to block the law, a decision the groups are appealing.

“Most of the groups involved have been in this chaotic state because it’s our understanding that if we send people out, they could be charged with a felony,” Hammett said. “We could be sending people out to lose their right to vote and go to jail.” 

In Florida earlier this year, a federal judge set aside several provisions of a new voting law, including one requiring third-party groups doing voter registration work to warn prospective voters that their registration application might not be turned in before registration deadlines. An appeals court stayed his decision, and the case is still pending. 

Stewart said the League’s litigation load has “exploded” since she joined in 2018 as it pushes back against restrictive state laws, including, but not exclusively, those with provisions specifically affecting voter registration work. In fact, the group is launching a new web page to better allow the public to see the cases it’s involved with, she said.

Stewart stressed that the League is nonpartisan, with chapters in states regardless of their partisan slants, and isn’t seeking to register voters in one party or another. 

“It’s more about engaging more people in the franchise,” she said. “It’s just really unfortunate at this time that there’s so many claims of voter harvesting and voter registration harvesting because the reality is at this time there’s no proof of that.”