President Donald Trump may have claimed that he “won the popular vote if you deduct the millions of people who voted illegally,” but there’s no evidence of illegal voting last November — in fact, multiple investigations have found that kind of election fraud in the U.S. to be virtually nonexistent. Nevertheless, state lawmakers across the country are proposing legislation they say is meant to combat it.
As of May, lawmakers in 31 states had introduced at least 99 bills that would restrict access to registration and voting since the beginning of 2017, according to a tally by the Brennan Center for Justice. Six state legislatures — Arkansas, Georgia, Indiana, Iowa, Montana, and North Dakota — have passed such bills in the first half of 2017, which is three more states than enacted similar bills in the previous two years combined.
“We’re only six months into the year, and I think it’s unusual to have this much focus and attention on imposing new rules and restrictions on valid access,” said Kristen Clarke, head of the Lawyers’ Committee for Civil Rights Under Law. “From where I sit, states are responding to the president’s dog whistle.”
But states were already moving to enact restrictions before Trump was elected. As the Brennan Center’s Democracy Program counsel Jonathan Brater pointed out, several secretaries of state — they often oversee elections — have denounced Trump’s claims of voter fraud. Mark Lowery, a Republican Arkansas state representative who sponsored a 2017 law that limits forms of acceptable voter ID, told VICE News that he’d begun drafting his bill before the 2016 election.
So there’s another factor at play: Republicans’ total power over state legislatures.
“Over the last few years, all of the most restrictive voting laws have passed through governments that were entirely controlled by the Republican Party,” Brater said. “And so there’s a strong partisan push here, and that’s held true this year.”
Republicans maintain so-called trifectas — when a party controls the governor’s mansion and both chambers of the state legislature — in five of the six states that have passed major voting limitations this year. (Republicans currently hold trifectas in another 21 other states.)
People do impersonate others to vote illegally, but nowhere near on the scale that Trump claimed. A Dartmouth College statistical analysis of the 2016 election found zero evidence to support his statement, and of the more than 1 billion total votes cast in U.S. elections between 2000 and 2014, one researcher found only 31 credible incidents of voter fraud.
That researcher, Loyola Law School professor Justin Levitt — whose investigation found that statistic that only one ballot in about 32 million will involve voter impersonation — wrote in the Washington Post in 2014, “Requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.”
But laws mandating that voters present photo IDs at polls and that limit the number of acceptable ID do have at least one effect: They generally “skew democracy in favor of whites and those on the political right,” according to three University of California San Diego researchers’ analysis of the nation’s photo voter ID laws, because minority voters — who often vote Democrat — are less likely to turn out to vote.
The rate of voting restriction legislation this year pales in comparison to 2011 and 2012, when 19 states passed at least 25 laws restricting voting access. Ultimately many of those laws were blocked or struck down by courts, but states appear to now be pushing modified versions.
“We’re seeing a lot of states go back in the legislative sessions and try to reinstitute different versions of those laws,” Brater said. Of the six states that have passed new voting restrictions this year, the Brennan Center found, four have in the past lost legal challenges to similar laws.
In 2014, the Arkansas Supreme Court struck down the state’s 2013 voter ID law for violating the state’s constitution, ruling that to enforce the law would disenfranchise voters. Some of the court’s judges also found that the law’s constitutionality didn’t matter because the legislature passed the bill without a two-thirds majority, the number of votes needed to change the state constitution, that alone was enough to block its implementation.
This year, Lowery’s bill got that majority.
“We do have a supermajority now of Republicans in the House, and that allowed us to be able to get the two-thirds margin that we needed,” Lowery said, adding that he feels the new version of the law doesn’t disenfranchise voters thanks to changes like a provision that allows people with photo IDs to cast provisional ballots after signing sworn statements confirming their identities.
Lowery also pointed out that a majority of Americans support voter ID laws, according to Gallup, though Republicans support them far more than Democrats do. Republicans are also more likely to believe that voter fraud is a major problem.
“Perception creates reality,” Lowery said. “That’s the main thing you have to look at, not that people know for sure that there has been fraud…. The voter ID bill actually is an attempt to be able to regain that confidence, which is an important part of the democratic process.”
But Danielle Lang, who works on voter rights and redistricting issues for the Campaign Legal Center, called arguments like Lowery’s “particularly cynical” because it was lawmakers who manufactured the “phantom problem” of election fraud in the first place.
“They created this perception,” she said, “and now they’re saying, ‘Oh, we have to fix it with the bills that we want.’”
Candice Broce, the press secretary for Georgia Secretary of State Brian Kemp, who will soon have to implement a new voter registration requirement, says that the term “voter fraud” could cover a variety of activities. Though Broce was not able to immediately provide an estimate of how often people impersonate others at the polls, she confirmed that Georgia did not see widespread voter fraud during the election.
Even as states battle legal challenges to certain voting restrictions, they pass others. Weeks after a federal judge once again ruled that Texas’ voter ID law intentionally sought to keep minorities from voting, the Republican-controlled Texas Legislature passed a law to eliminate straight-ticket voting. Supporters say the measure will make voters pay more attention to individual races, while opponents argue the move will disproportionately affect minority voters; a federal judge’s ruling blocked a similar law in Michigan last year for that very reason.
“They just seem not to care about continuing along this path of cutting back of minority access, even in light of repeated federal court losses,” Lang said. Whenever a state lawmaker introduces a new voting restriction, she added, “I’m shocked all the time. And then it just passes.”