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Republican State Legislatures Are Making Democracy Illegal.
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Republican State Legislatures Are Making Democracy Illegal.


On May 14, Montana Gov. Greg Gianforte (R) signed three new bills into law, including one that could make it a crime to collect and submit ballots on behalf of another voter. The third bill made it illegal to protest near oil and gas pipelines, with a potential penalty of up to 18 months in prison and thousands of dollars in fines.

The new laws appear to be aimed squarely at members of Montana's various Native American tribes, who rely heavily on mass ballot collection drives to vote and who have led protests against major oil and gas pipeline projects that threaten their lands in recent years.

For years, Republicans have sought to limit the right to protest and restrict access to the ballot box; however, both efforts have accelerated across the country in 2021. According to the International Center for Not-for-Profit Law, which tracks such legislation, eight states, including Montana, have passed laws that create new criminal penalties related to protesting.

And, as is evident in Montana, the wave of anti-voting and anti-protest laws, which civil rights groups say is unprecedented since the 1960s civil rights movement, is not only broadly anti-democratic; it is also a direct assault on the rights of Black, brown, and Native Americans.

“They are responding to people who are attempting to use fundamental rights in American society, whether it’s the right to vote or the right to protest, not by allowing people to tell legislators what they want and care about, but by casting them as criminals and silencing them, both at the ballot box and on the streets,” said Vera Eidelman, a staff attorney at the American Civil Liberties Union.

The new laws are both obviously unconstitutional and largely unnecessary, according to Eidelman, because they purport to address issues that are already addressed by existing criminal statutes. However, they are part of a Republican backlash against basic democratic tenets that appears to be accelerating.

The GOP is “working to criminalize voting, and they’re working to criminalize protesting,” said Nse Ufot, CEO of the New Georgia Project, which opposed a sweeping new Georgia law that created multiple new crimes related to voting.

Third-Party Ballot Collection Is a Priority

Montana's HB 530, which Gianforte signed into law in May after Republican majorities in the state legislature passed it without a single Democratic vote, prohibits anyone from submitting another voter's absentee ballot if they receive a "pecuniary benefit" for doing so. Republican supporters argue that this provision will help limit mail-in ballot fraud.

After former President Donald Trump spent last year's election railing against the practice's alleged potential to allow fraud, third-party ballot collection has become a primary focus of Republican efforts to create new criminal penalties related to voting, particularly in 2021. (Twenty-six states and Washington, D.C. allow the practice, though specifics vary: some states only allow family mem

In reality, there is no evidence that ballot collection drives cause fraud, and fraud is extremely rare regardless of how Americans vote. A legal challenge to a similar Arizona law that places heavy restrictions on the practice is currently being heard by the Supreme Court, in a case that supporters of the practice point to as proof that the GOP's crackdown on ballot collection drives is unconstitutional.

Republicans, inspired by Trump, have enacted new limits or bans on the practice in Iowa, Kentucky, Florida, Kansas, and Arkansas, with some still allowing voters to designate a family member to return a ballot on their behalf. The new laws almost universally create or increase criminal penalties for violating the stricter limits put in place.

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations.

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services.

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services..a formalized paraphrase

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services..a formalized paraphrase.Many do not own cars that would allow them to make the drive to the nearest in-person polling location, which can be as much as 120 miles round-trip.

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services..a formalized paraphrase.Many do not own cars that would allow them to make the drive to the nearest in-person polling location, which can be as much as 120 miles round-trip..As a result, tribal reservations have traditionally relied heavily on paid ballot collectors to collect ballots from residents and transport them in bulk to county election offices, a practice that is now prohibited.

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services..a formalized paraphrase.Many do not own cars that would allow them to make the drive to the nearest in-person polling location, which can be as much as 120 miles round-trip..As a result, tribal reservations have traditionally relied heavily on paid ballot collectors to collect ballots from residents and transport them in bulk to county election offices, a practice that is now prohibited..(Last year, a federal judge ruled that a similar Montana effort to ban third-party ballot collection was unconstitutional because it disproportionately targeted Native American voters.)

Third-party ballot collection is commonly viewed by nonpartisan election officials as a valuable tool for increasing democratic participation among underserved populations..Native Americans on reservations in Montana frequently lack access to daily U.S. government services..a formalized paraphrase.Many do not own cars that would allow them to make the drive to the nearest in-person polling location, which can be as much as 120 miles round-trip..As a result, tribal reservations have traditionally relied heavily on paid ballot collectors to collect ballots from residents and transport them in bulk to county election offices, a practice that is now prohibited..(Last year, a federal judge ruled that a similar Montana effort to ban third-party ballot collection was unconstitutional because it disproportionately targeted Native American voters.).(Observe:

“This latest ban on ballot collection is intentional discrimination on the part of the Republican legislature,” said Jacqueline De León, a staff attorney at the Native American Rights Fund, which filed a legal challenge to the new law last month alongside the ACLU of Montana.

In the face of “very significant structural barriers that keep Native Americans from casting their ballots,” she believes ballot collection is the logical solution. “Pooling collected resources is how you overcome how difficult it is to vote, and having third party ballot collectors do that type of collective work just makes sense,” she says.

According to voting rights groups, the Iowa ban on third-party ballot collection is likely to have disproportionate effects on the state's Latino population. In those and other states, putting new limits on who can submit ballots on behalf of other voters is likely to present new obstacles for elderly and poorer voters, voters with disabilities, and even college students all constituencies that a ban on third-party ballot collection is likely to disproportionately affect.

Voting Errors Should Be Punished

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Other new laws have targeted election officials. Iowa Gov. Kim Reynolds (R) signed a law this year making it a crime for local election officials to mail out absentee ballots unless voters specifically requested them, a practice that became more common during the COVID-19 pandemic. A voting restrictions bill that narrowly failed in Texas included a similar provision, which could be revived if lax enforcement is maintained.

The new laws may result in a flood of new charges for minor voting violations, such as those that plagued Crystal Mason, a Texas woman who received a five-year prison sentence for voting while ineligible.

Furthermore, the laws are likely to have a chilling effect on voters, election officials, and organizations that seek to assist voters, all of whom may become more wary of committing crimes while attempting to engage in a fundamental democratic practice.

The new Montana law has sparked fears that many organizations that collect third-party ballots will cease operations for fear of inadvertently committing crimes.

“It has both the actual effect of subjecting people to prosecution, and then the very real chilling effect that will discourage people from providing and receiving the assistance that is required to exercise their right to vote,” said Eliza Sweren-Becker, an attorney at New York’s Brennan Center for Justice.

The Right to Assemble Is Being Restricted

The goal of various anti-protest bills proposed by Republican legislators in recent years in response to Native-led protests against major pipeline projects and racial justice protests across the country appears to be to scare people away from exercising their democratic rights.

Montana's new law, which has been described as one of the most draconian anti-protest measures in the country, would make "trespassing" near a "critical infrastructure facility" a misdemeanor punishable by up to four months in prison and $1,500 in fines, while larger crimes related to protesting oil and gas pipelines or other "critical" facilities could result in felony charges punishable by up to five years in prison.

Native Americans in Montana, where tribes led protests against the proposed Keystone XL pipeline, see the law as a deliberate assault on their right to demonstrate against threats to their lands and livelihoods.

Along with Montana, seven other states have passed anti-protest laws in 2021, including Alabama, Arkansas, Florida, Iowa, Kansas, Oklahoma, and Tennessee. Some, like Montana's, explicitly target anti-pipeline protests, while others expand criminal penalties for protests that target monuments or block public streets, or create new penalties related to expanded definitions of "rioting" that would inevitably include protests targeting monuments or blocking public streets.

Between June 1, 2020, and March 15, 2021, lawmakers in 33 states proposed at least 100 bills aimed at restricting protest and imposing harsh penalties on demonstrators convicted under the new legislation, according to a recent report.

“This is about discouraging people from going to these protests, making them think twice about even going,” said Bruce Franks Jr., a civil rights activist who won a seat in the Missouri state legislature after protesting in Ferguson in 2014. Struggling with mental health issues and facing a campaign finance violation fine, he resigned from his seat in 2019 and moved to Arizona.

He claimed that the bills are intended to keep marginalized people down.

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At least 11 other proposals, including a pending bill in Arizona, threatened to deny access to state benefits to anyone convicted or, in some cases, simply indicted following an arrest at a protest, such as health care, unemployment insurance, school scholarships, and other forms of government assistance.

Rich Villa, 28, a criminal justice undergraduate at Phoenix College in Arizona who was arrested last year during a protest against police brutality, said, “If I'm hit with felony charges for protesting, I won't be able to receive any public benefits like tuition waivers and financial aid at this point in time.”

He claims that the threat of losing other public benefits kept his fiancée, who relies on food stamps to help feed their young child, away from last year's protests.

“This is a real-life depiction of how exercising your First Amendment right to speak out about injustices people face in this country means you can face real, real consequences,” Villa said, adding that “your life can be adversely impacted for speaking out against the injustices by the system you are in turn protesting... It’s like David versus Goliath.”

Many of the bills did not pass in state legislatures this year, but legislation that would make it easier to label protesters as "terrorists" is still pending in Ohio, and the proposals are indicative of what state legislators are likely to pursue in future sessions.

While Republicans have advanced bills that target protesters, they have also reduced potential criminal liabilities for ordinary citizens who deliberately target demonstrators. Legislators in Oklahoma and Florida have approved bills that would grant civil immunity to people who run over protesters with cars; the Oklahoma law also shields anyone who uses a vehicle to target protesters from criminal liability.

Using cars as a weapon against protesters is a far-right fantasy that is becoming more common. In 2017, James Alex Fields drove his car into a crowd of anti-racist protesters in Charlottesville, Virginia, killing 32-year-old Heather Heyer.

Many of the new laws targeting protesters and voters are likely unconstitutional, according to Eidelman, an ACLU attorney, but they are still likely to reduce participation in protests and elections among Americans who lack the will or resources to fight them in court.

“Part of the intended effect,” Sweren-Becker explained, is to “frighten people away from the democratic process.”

Reporting was provided by Alexander C. Kaufman.

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