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One topic that has come up is voter suppression. Voter suppression discussions have focused on making it harder to vote, not removing the ability to vote altogether. But I am wondering if it is legally possible under federal laws for a US state to add some restrictions that would make voting not difficult but impossible for some people by rendering them ineligible.

Currently, the requirements to vote in most states are to be an adult non-incarcerated citizen. Some states add that you cannot vote if you were ever convicted of a felony. This adds a restriction.

Another restriction that came to my mind from the back of my head is Texas's mail-in ballot system. Texas says that you must be 65 years or older to vote by mail without an excuse. This doesn't count towards adding eligibility requirements because the Constitution blocks this, but one thing I could think of as a hypothetical is blocking young voters from casting any ballot before Election Day without an "excuse".

What I am asking is if there are barriers for Democratic-trending states with a Republican voting record recently such as Arizona and Georgia and Texas that block them from being more aggressive in writing more restrictive laws. I know this question seems biased against Republicans, but they are the only ones objectively who have expressed serious interest in this.

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  • Even though it is a restriction to have felony disenfranchisement (even within prison), it doesn't count because it is a fairly obvious one. I'm asking about if there are ways to block certain types of voters from voting or at least single them out for worse treatment in terms of "cost of voting". One I could think of was in South Dakota or North Dakota blocking Native Americans on reservations by making them register with addresses they didn't have. Jun 24, 2023 at 23:34
  • A pretty obvious restriction is that only American citizens can vote. It could be rather different, if all the US residents were allowed to vote... especially, if this were extended to "illegal" residents.
    – Roger V.
    Jun 25, 2023 at 4:58
  • I think the restrictions to voter suppression laws come mostly from very high level abstract rules like the constitution and whether any particular law would violate that needs to be decided by courts not from written law.
    – quarague
    Jun 26, 2023 at 6:13
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    @RogerVadim It's not unusual and many states are more restrictive on only Citizens Voting in the U.S. (for example, U.S. Residential voting is allowed in local and state elections in some places in the U.S.). Compared to Canada, where you must prove citizenship and residency at a polling place (ID and mail addressed to you covers this) and New Zealand, which does not permit NZ citizens living abroad from participating in elections (U.S. Citizens aboard are not restricted.) or Switzerland, where citizenship and thus voting is based on determination by your local canton.
    – hszmv
    Jun 26, 2023 at 14:10
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    @RodgerVadim I wouldn't consider it as "voter suppression" if there is an avenue to eventual citizenship.
    – hszmv
    Jun 26, 2023 at 17:04

2 Answers 2

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They clearly can and frequently do

The USA is peculiar compared to most democracies in how it handles voting and the rules related to voting.

This is partly because the Constitution and federal law leaves most detailed decisions about how elections are handled to the states and has very few restrictions on how they exercise those responsibilities. This creates many opportunities for "suppression".

One particular oddity that creates the opportunity for suppression compared to most democracies is the way voter registration is managed. Most countries have automatic registration or compulsory registration. In the USA registration is mostly voluntary and subject to local rules. This creates the possibility of suppression before any voting even happens. Explicit criteria preventing registration based on sex and race would be a violation of the 1965 Voter Rights act, but there is plenty of scope for measures that achieve that goal without explicit discrimination.

The USA is also unusual in allowing states to choose boundaries for voting districts however they want. How district boundaries are drawn can, in effect, disenfranchise certain groups (both Democrats and Republicans have done this a lot). While the Voting Rights Act prohibited redistricting for partisan or racial advantage, the Supreme Court recently nullified the requirement of some southern states to submit redistricting decisions to the Federal government before implementing them, reducing the restrictions.

But attempts by states to actively suppress the effect of votes by minorities or opponents continue. This should be obvious from the surprise recent Supreme Court ruling that nullified the 2020 Alabama redistricting based on an attempt to reduce the impact of black voters. Previous rulings set a very high standard for ruling that redistricting was unfair (leaving many commentators wondering just how extreme states had to be before the court would act). The case shows that states are still attempting to do it but that they have to behave egregiously to get stopped by existing laws. The key point is that remains a great deal of leeway in federal law that allows states to suppress votes via redistricting.

Also the way Electoral College votes in presidential elections are distributed is chosen by states (most states choose to allocate all the voters to the candidate with the local plurality but some allocate them proportionally). It isn't obvious that this counts a suppression of votes, but it clearly leads to many elections where the winner didn't win the popular vote leading to votes in smaller, rural states having more influence.

States can also choose the processes for voting in ways that make it harder for some groups to vote. Barriers to registration may discriminate; barriers to physical access to voting may be problematic as the accessible choice of voting method may be. The legal arguments around early and postal voting surrounding the 2020 presidential election illustrate that the rules are sufficiently variable to create the possibility of bias against certain groups. Some states have long had universal postal voting without issues. Others have fought against making postal voting easier (claiming it creates the possibility for more fraud but, in reality, because many thought that Democrats were more likely to vote postally). Other states have deliberately restricted the location of voting centres or early ballot drop off centres for arbitrary reasons that often seem to make it harder for people in opposition supporting areas to vote. There are no standards mandating equal access to voting facilities and states have plenty of leeway to exploit this for partisan advantage.

States also have wide freedoms to define identity requirements for voter registration or actual voting leaving them with a lot of scope to discriminate. Restrictions on registration would be almost unimaginable in most other countries as the process is automatic or compulsory but US States are free to set standards that can and do suppress votes from some minorities or groups (not everyone has an acceptable photo ID, for example, and the groups that don't are often Democrat leaning). While it is not uncommon for other countries to require IDs to vote, this is often accompanied by widespread availability of free photo ID on application before such restrictions are applied to minimise the possibility of bias against certain groups.

There are even cases when large groups can be prevented from voting. there are nearly 6 million voters with spent felony convictions. Some states bar them permanently from voting, some allow them to vote with various restrictions. Some attempt to suppress their votes despite having passed state laws in ballot initiatives to allow previous felons to vote (as Ron de Santis recently did in Florida).

Summary

The laxity of federal rules leaves a great deal of space for states to manipulate voting registration, voting access and voting boundaries. And many states choose to exercise that freedom to suppress votes and their impact from opposition supporters. That this happens is attested by the numerous legal challenges (though only a few are successful). All of this is extraordinarily unusual by the standards in other democracies.

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    It should be noted that the U.S. is not alone in an indirectly elected head of government, as any nation with a prime minister in the Head of Government position (Canada, Britain, Japan) has that person elected to the office by a vote among the select people who hold a seat in the legislature, not the general public.
    – hszmv
    Jun 27, 2023 at 17:17
  • @hszmv It isn't indirect election that is the problem: it is the specific way the rules on the electoral college work across 50 states with very different populations. the bias would be minimised under different rules, but states control those rules. Only Maine and Nebraska use a rule that would mostly match the overall winner with the popular vote if everyone used that rule. in 2 out of the last 6 elections the winner lost the popular vote.
    – matt_black
    Jun 27, 2023 at 19:18
  • I fail to see in the U.S. constitution that a direct popular vote matters in the Electoral College. The founders were not unaware an election for president could be done through popular election and chose to ignore that option for the Electoral College for good reasons.
    – hszmv
    Jun 27, 2023 at 19:25
  • @hszmv Yous assume some sort of miraculous levels of foresight in the writers of the constitution. "For good reason" is a weak argument for anything especially when the same writers failed to outlaw slavery (presumably also "for good reason"). The current mismatch between the popular vote and the college has not been a big problem historically so they would have had to bee brilliant forecasters to have forseen it.
    – matt_black
    Jun 27, 2023 at 19:42
  • The Founders thinking and reasoning for why they made their choices is well documented. The reason for the electoral college was spelt out in the Federalist Papers and personal writings of many founders. The popular/electoral split was discussed by James Madison, the framer and writer of the Federalist papers and the first such split occurred in 1824, and involved the son of a Framer (and initial critic) and a signer of the declaration of independence.
    – hszmv
    Jun 28, 2023 at 12:33
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So by constitutional law, the States are restricted from enacting voting laws that would prevent disenfranchisment to citizens born or naturalized (14th Amendment) based on race (15th amendment), sex (19th Amendment), or age above age of majority (18 years old, 26th amendment). Additionally, the U.S. Constitution barred poll taxes from being used nation wide (24th Amendment.). Additionally the Supreme Court Case Katzenbach v. Morgan interpreted that Congress had the authority to pass laws that enforced compliance with the 14th Amendment protections even if the practice was not itself mentioned in the U.S. Constitution upholding the Voting Rights act of 1965, which included bans on practices such as Literacy tests and race-based Gerrymandering.

Thus a state would have to pass a law that was compliant with the constitutional restrictions on who it must let vote, as well as the Voting Rights Act and any future laws of congress that would further ban practices.

On the matter of convict voting rights, this is a debate that factors into both issues of Gerrymandering (both pro- and anti- convict vote parties can use the jails to Gerrymander districts based on how inmates favoring one party over another in demographics) and because in states that do, the rights are normally returned upon release from jail so a person on parole or probation can still vote. In states that do not allow parole or probation servers to vote, they rights are still returned following final discharge of all the "debt" owed to society.

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  • But this fails to answer whether the existing statutes and constitution provide effective restraints on the freedom of states to act. Actual evidence suggests that even the voting right act only restrains extreme behaviour and leaves a lot of leeway for biased rules as long as they are not to explicit.
    – matt_black
    Jun 27, 2023 at 16:23
  • @matt_black It would then fall to the constraints in place and the ability for new such restrictions to block them, and they seem robust enough as is. The protections on afforded are aligned with most categories that are protected under federal hate crimes laws while being neutral in terminology with respect to a specific class of people.
    – hszmv
    Jun 27, 2023 at 17:14
  • You need to examine what states do and how effectively the rules constrain the states. They seem to have little power against all but extreme gerrymandering, for example, or local biased constraints on registration or access to voting locations.
    – matt_black
    Jun 27, 2023 at 19:11
  • @matt_black Gerrymandering has been brought through the supreme court several times. The problem is that there is no wany to conclusively prove that certain lines are drawn in biased fashion from a legal standpoint that can be fairly applied across the board. You cannot draw them to be biased against protected classes of people, but political affiliation is not a protected class. Restrictions to polling places locations are part of the Voter Rights act.
    – hszmv
    Jun 27, 2023 at 19:30
  • The best way to avoid gerrymandering is not to let politicians draw the boundaries (this is what most democracies do). Some US states have enacted ballot initiatives to achieve this driven by voter initiatives. And the surprise at the two recent SCOTUS rulings blocking heavily gerrymandered maps (unexpected because they previously failed to block fairly obviously bad maps) suggests the rules are, in many cases, too weak to prevent it.
    – matt_black
    Jun 28, 2023 at 10:56

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