Voting rights in 2023: what are the key issues for US democracy?

In 2022, America’s democracy survived an enormous test.

As a movement to sow doubt about American elections grew – fomented by Donald Trump’s false claims about the 2020 race – the 2022 election ran largely smoothly. Eligible votes were counted and the valid winners of contests were seated in office.

But as the country enters 2023, and begins to look towards another high-stakes presidential election, the threat to American democracy is far from over. Here are some of the key issues to pay attention to around voting rights this year and beyond.

The future of election denialism

Last year, there was deep concern about a new poison in American politics – efforts to undermine and even overturn election results.

In November, the vast majority of Republicans who questioned election results lost their bids to become the top election official in many states, a position from which they could have used their enormous influence over election rules to sow chaos.

Despite those losses, it doesn’t look like election denialism is going away anytime soon. After the midterm elections, some local officials resisted efforts to certify the election, prompting court action to force them to do so. There were some post-election lawsuits in Arizona in which GOP candidates falsely claimed widespread problems had caused Republicans to lose races. Election deniers also won races for key election roles at the local level and in statewide races in Indiana, Wyoming, South Dakota and Alabama.

It’s also unclear what will happen to a grassroots movement, bulwarked by Trump allies and millions of dollars from conservative donors, built around election denialism. Encouraged by conservative activists, Americans who were skeptical about the 2020 election signed up to monitor and work the polls and to closely monitor their election officials. Election offices were bombarded with a flood of public records requests related to the 2020 election, swamping their staff. Many election officials resigned as they faced a wave of harassment. There was public pressure to only count ballots by hand, a method experts have said is unreliable, time-consuming and costly.

After bruising losses in 2022, will local activists continue to pressure election officials? Will local efforts to resist certifying races grow? And as they look towards the 2024 presidential race, will GOP candidates continue to spread election misinformation and sow doubt about election results?

Voter fraud prosecutions

In 2022, several Republican-led states escalated their efforts to prosecute voter fraud, creating new statewide units to focus on investigations and prosecutions. Moving into 2023, there will be close scrutiny on what cases, if any, these units focus on.

Florida, Virginia and Georgia all either created or expanded units empowered to examine voter fraud, which is exceedingly rare in the United States. Arizona and Texas also have units in the state attorney general’s office that have turned up few cases of fraud.

The Florida unit immediately drew scrutiny this summer when Governor Ron DeSantis trumpeted its involvement in the arrest of 19 people for voter fraud. Several of the people arrested said they did not know they could not vote, were never told about their ineligibility and had received voter registration cards in the mail, which they took to mean they were qualified. So far, at least three of the cases have been dismissed (the state is appealing), one has been dropped and another ended with a plea deal that resulted in no punishment.

While no comprehensive data exists, there is deep concern about racial inequities in voter fraud prosecutions and that they can result in voter intimidation.

The US supreme court

The US supreme court is set to rule in two separate cases this year that could strip longstanding protection for voters. Rulings in both cases are expected by the end of June.

In one case, Merrill v Milligan, the court could gut what remains of section 2 of the Voting Rights Act, perhaps the most powerful remaining provision of the 1965 landmark civil rights law. The court is considering what criteria need to be met under the law in order to require state lawmakers to draw electoral districts that protect the voting power of minority groups. The court’s conservative supermajority appears poised to raise the bar so high that it would make it extremely difficult for minority voters to prove those districts are needed, freeing states to more aggressively blunt minority political power.

The second case, Moore v Harper, would dramatically upend US election law. The court is considering whether to endorse a radical legal theory arguing that state legislatures have the exclusive authority to set the rules for federal elections. If the supreme court were to endorse that novel idea, it would prohibit state supreme courts from exercising any oversight over election rules for federal office, including things like congressional district boundaries, voter ID laws, early voting and voter purging. It would be an enormous boost to Republicans, who have complete control over more state legislatures than Democrats do.

State supreme courts

In 2022, state supreme courts in Ohio and North Carolina blocked Republicans from implementing electoral maps that were severely distorted in favor of the GOP. But in November, the composition of both courts changed. Republicans took control of the supreme court in North Carolina. In Ohio, a Republican who had been voting with Democrats in the redistricting cases was forced to leave the court because she reached the mandatory retirement age. With GOP majorities shored up in both places, Republicans may try a more aggressive effort to gerrymander districts.

In Wisconsin, control of the state supreme court will also be up for grabs in April. Republicans want to keep their 4-3 majority on the body, which has sided with the GOP in many key voting disputes. Democrats see the race as a critical contest and another opportunity to check the Wisconsin legislature, which is controlled by Republicans. The legislature is so gerrymandered that it would be virtually impossible for Democrats to take control.

Voting legislation

After the 2020 election, there was a surge of bills in state legislatures that aimed to restrict voting. Many of those measures aimed to restrict voting by mail in particular, which had been used in record numbers amid the pandemic. New laws went into effect in states like Georgia, Florida and Texas with provisions making it harder to request a mail-in ballot, assist voters with mail-in materials and to return completed ballots to drop boxes.

With state legislatures set to reconvene again this year, voting rights groups will be closely monitoring new proposals to restrict voting.

New Democratic trifectas

One of the most surprising stories in 2022 was the unexpected success that Democrats had in state legislative races. In Michigan, a key battleground state, Democrats took complete control of the state legislature for the first time in nearly 40 years. They also took complete control of state government in Minnesota and held on to their majorities in several other states.

After watching Republicans aggressively move to restrict voting access, some Democrats have already signaled that they will be more aggressive in using their legislative power to expand voting rights with measures like automatic voter registration and pre-registering voters before they turn 18.