by Kira Lerner, Georgia Recorder [This article first appeared in the Georgia Recorder and the States Newsroom, republished with permission]
July 18, 2022

First in a two-part series

During the 2020 election, Rhonda Briggins and her sorority sisters spent days providing voters in metro Atlanta with water and snacks as they waited in long lines at polling places.

The lines for early voting and on Election Day at times stretched on for hours. As the national co-chair for social action with the Delta Sigma Theta sorority for Black women, Briggins felt compelled to help, and she and her sisters unofficially adopted one DeKalb County location where many elderly Georgians cast their ballots. Contributed by Rhonda Briggins

“When you’re a senior or someone with an infant child, line relief is very critical,” she said. “It allows someone to not have to suffer just because they want to exercise their right to vote.”

But if Briggins tries to do the same in November, she could face criminal charges.

In March 2021, four months after former President Donald Trump claimed that voter fraud cost him the state’s electoral votes and the presidency, Georgia’s Republican governor signed a law criminalizing people who give food or drinks to voters waiting at the polls.

Georgia was not alone. Across the country, states have passed new laws that give the green light to prosecutors to treat like criminals all kinds of people involved in the election process, whether they are voters, election officials or third parties that assist voters.

Since the 2020 election, 26 states have enacted, expanded, or increased the severity of 120 election-related criminal penalties, according to an analysis by States Newsroom of state legislation and data from the Voting Rights Lab.

Of those new penalties, 102 of them — the vast majority — were enacted in 18 Republican-controlled states: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, West Virginia, and Wyoming.

[See all of the new criminal penalties here]

In Oklahoma, for example, voters who apply to receive a blind-accessible ballot electronically but are not blind are now committing a felony. And in Texas, it’s a felony for an election official to solicit the submission of a mail ballot application by a person who did not request one.

Briggins could get up to a year in jail now for handing out snacks or water. “That is just inhumane,” she said. “They’re on the wrong side of history.” During the 2020 election primary voters often waited for hours to cast ballots and volunteers often donated water and snacks to encourage people to stay in line. John McCosh/Georgia Recorder

Many of the new criminal penalties are being challenged in court. In a request for an injunction to stop the line relief ban, attorneys representing Briggins’ sorority, non-profit groups, and a Black church wrote, “If anything threatens election integrity in Georgia, it is the law that treats these messengers like criminals.”

More than 60 new felonies

States Newsroom analyzed every voting-related bill passed by state legislatures since the 2020 election, creating a database of every new criminal offense codified into law. In total, states enacted more than 60 new felonies and more than 50 new misdemeanors.

The new offenses, made law in dozens of voting bills, range from low-level misdemeanors to felonies punishable by up to 20 years in prison.

While there are no official projections of how many Americans might wind up charged with felonies or misdemeanors, some states, like Florida, have already beefed up their elections enforcement offices. A handful of other states have given power to investigate election crimes to new agencies or government officials.

The new laws not only criminalize actions typically described by Republicans as voter fraud (like altering a ballot, electioneering, or voting more than once), but also criminalize the activities of people trying to assist voters or attempting to make an election run smoothly.

Sean Morales-Doyle, the acting director of the voting rights program at the liberal-leaning Brennan Center for Justice, said many of the new laws regulate what are often innocent or even laudable actions. Others have vague definitions of what could be considered criminal conduct.

“The effect of the laws is not only to deter people from engaging in nefarious conduct or interfering with elections,” he said. “It deters people from engaging in completely legitimate, innocent, even good conduct because they’re scared of getting close to the line and potentially being accused of a crime.”

If convicted of an election-related felony, voters or election officials face a number of collateral consequences, including potentially losing their right to vote for a significant amount of time, depending on the state that convicts them.

Nicole Porter, senior director of advocacy for the Sentencing Project, a group focused on reducing imprisonment, said she finds the new criminal penalties contradictory with the now bipartisan acknowledgement that the U.S. prison system is too large.

She noted that many states are moving to allow more people with felony convictions to vote, but creating dozens of new potential felonies works against the effort to expand voting rights.

The new laws are a direct response to Trump’s Big Lie that voter fraud cost him the 2020 election. Republican lawmakers across the country capitalized on that lie and have used their control of state legislatures to push new laws that they claim will prevent future fraud.

“It’s a lot of political theater,” said Jonathan Diaz, voting rights counsel with the Campaign Legal Center. “This is almost entirely politically motivated because there’s just no evidence to suggest that there’s a need for any of this.”

He added that “the second-order consequences” of the new laws “and the chilling effect that they have on voters and on civic engagement is really, really damaging to the overall health of democracy.”

Voters targeted

The most commonly known type of voting laws target voter fraud — actions taken by voters like submitting false information on a registration form, voting more than once, or impersonating another voter or deceased person to cast a ballot.

These types of offenses are exceedingly rare, and when they do occur, they are usually committed by voters who are misinformed, confused, or don’t understand the law.

But the dozens of new criminal laws targeting voters, coupled with prosecutions using the already existing laws, work to discourage participation by people who don’t want to end up facing criminal penalties.

For example, prosecutors in Texas brought charges against Crystal Mason, who was eventually convicted of illegal voting but alleged that she did not know that being on supervised release from prison made her ineligible to vote. While prosecutions against people like Mason are rare, they have a chilling effect on others, especially non-white voters, who want to avoid ending up in her situation.

Texas’ highest criminal court recently ruled that her conviction be reviewed because a lower court wrongly determined that it didn’t matter that Mason was not aware that she was ineligible.

There is little incentive for someone who is ineligible, like an undocumented immigrant or someone with a prior felony conviction, to unlawfully register and cast a ballot, as the potential consequences outweigh the benefits of a single vote.

Prosecutors and law enforcement are already equipped with the tools they need to address these types of election wrongdoing, but convictions are still extremely rare.

“It’s not for lack of trying,” Diaz said. “It’s not for lack of will. It doesn’t happen.”

As a result, these offenses have little or no impact on elections.

Nevertheless, Republican lawmakers in recent years have overplayed their significance as part of their broader rhetoric about the threats of voter fraud.

Since November 2020, some states have increased these types of voter fraud crimes from misdemeanors to felonies, a move that Diaz described as a political attempt by Republicans to “rev up their base.” Studies show that increasing the severity of criminal penalties on an offense does not increase its deterrent effect.

South Carolina Gov. Henry McMaster, a Republican, signed a law in May creating in-person early voting for the first time, but also increasing six already existing voting-related offenses from misdemeanors to felonies.

Three directly affect voters: attempting to vote in someone else’s name or otherwise voting fraudulently, attempting to vote more than once in the same election, and attempting to impersonate another person to vote. The new felonies carry a fine of $1,000 to $5,000 and up to five years in prison. Previously, the misdemeanor carried a maximum of three years in prison.

West Virginia also increased several penalties from misdemeanors to felonies, including voting while not legally entitled. The felonies are punishable by between one and 10 years in prison and a fine of up to $10,000.

Experts say the higher penalties are unlikely to change conduct and having more criminal laws on the books may not even lead to more prosecutions.

“Even if there’s no change to how many folks are being prosecuted, there will be an impact on conduct and on people’s willingness to participate fully in the democratic system,” Morales-Doyle said.

Next: New laws that target election officials and people who try to help voters

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.