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Commentary

Could New Voting Restrictions Determine Control of the Senate?

All eyes tonight – and quite possibly afterwards – will be on which party will control the Senate. The latest polling suggests that it will come down to eight states:  Alaska, Colorado, Georgia, Iowa, Kansas, Louisiana, New Hampshire, and North Carolina.   Republicans will control the Senate if they prevail in four or more of these states, while Democrats need at least five to maintain control.* 

Of the eight states in play, four have seen litigation over voting rules or practices this year: North Carolina, Georgia, Kansas, and Iowa.  All of these cases involve voter registration.  The courts stopped restrictions in Kansas and Iowa, but ultimately declined to do so in North Carolina and Georgia. This comment considers the possibility that voting restrictions – or court orders stopping them – could make the difference.

North Carolina is the state where new voting rules are most likely to affect a Senate race. A law enacted by the Republican-controlled North Carolina legislature last year adopted the broadest set of voting restrictions in recent history.  The law eliminated same-day registration, reduced the early voting period, mandated rejection of provisional ballots cast out–of-precinct, ended the pre-registration of 16 and 17 year olds, and made challenges to voter eligibility easier.  The state also adopted a voter ID requirement, although that won’t take effect until 2016. North Carolina’s voting restrictions came shortly after the Supreme Court’s decision in Shelby County v. Holder, which struck down the Voting Rights Act’s coverage formula – relieving North Carolina and other covered states of their obligation to preclear voting changes with the federal government. 

The NAACP sued to stop North Carolina’s voting restrictions, but the Supreme Court allowed them to take effect.  The Fourth Circuit Court of Appeals had intervened to stop two provisions:  the elimination of same-day registration and the rejection of out-of-precinct ballots.  The preservation of same-day registration was especially important, given the evidence that this practice tends to increase turnout.   But last month, the Supreme Court issued a stay of the Fourth Circuit’s order, allowing North Carolina’s new rules to take effect.

In Georgia, another state that was covered by the Voting Rights Act before Shelby County, the NAACP sued the Secretary of State in state court alleging that election officials were failing to add voters to the rolls in a timely manner.  The trial judge dismissed the lawsuit, finding that state and local election officials were complying with state law.  Plaintiffs claim that 40,000 registrations have gone missing.  This allegation may not be true – but if it is, those votes could make the difference in a close race.  

In two other states, courts intervened to stop registration restrictions this election cycle. Kansas’ Secretary of State sued to the U.S. Election Assistance Commission, seeking an order that would require documentary proof of citizenship for new registrants for people using the federal registration form.  A district court agreed with Kansas, but the Tenth Circuit stayed the district court’s order.  Thus, Kansas’ registration requirement wasn’t in effect for voters using the federal form this election cycle.

In Iowa, the ACLU sued the Secretary of State to stop new rules allowing people believed to be foreign nationals to be removed from the rolls.  A state trial court found the new state rules invalid under state law, stopping them from going into effect.

So could control of the Senate hinge on the voting restrictions challenged in North Carolina and Georgia, or the court orders stopping restrictions in Kansas and Iowa? It depends, as usual, on how close things are.  The odds are against it, but the litigation could turn out to be outcome-determinative if control of the Senate hinges on a small number of votes in one or more of these states.  And if it’s close enough, we may never know for sure. 

With those caveats, the chances of election rules making a difference are greatest in North Carolina, given the breadth of that state’s voting restrictions. While this scenario is unlikely, if Republicans win control of the Senate due to a narrow victory in North Carolina, they should thank the Supreme Court. 

* The Independent candidate in Kansas, Greg Orman, hasn’t said who he’ll caucus with if he defeats Republican incumbent Pat Roberts.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile

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