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AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
SCIENCE & TECHNOLOGY LAW SECTION
CIVIL RIGHTS AND SOCIAL JUSTICE SECTION
CYBERSECURITY LEGAL TASK FORCE
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1 RESOLVED, That the American Bar Association (ABA) urges federal, state, local,
2 territorial, and tribal legislatures to preserve and protect the right to vote in U.S. elections.
3 FURTHER RESOLVED, That the American Bar Association opposes laws and
4 regulations that have the purpose, intent, or effect of restricting voting rights, the core of
5 our democracy, by:
6 1) Permitting state officials, legislators or boards to decertify election results without
7 cause;
8
9 2) Authorizing state legislatures to remove independent state or local election
10 officials from office or assume their authority to administer elections;
11
12 3) Conducting unwarranted voter purges, other than those authorized by the National
13 Voter Registration Act;
14
15 4) Raising barriers to voting by establishing or expanding burdensome voter
16 identification requirements for in-person and/or voting by mail;
17
18 5) Curtailing voting by unreasonably restricting absentee or mail-in voting;
19
20 6) Impeding in-person voting by creating restrictive voting rules, eliminating polling
21 places, or reducing the number of lockboxes for depositing votes; and
22
23 7) Authorizing or condoning conduct that harasses election officials.800
REPORT
The American Bar Association (ABA) strongly supports free, fair, and impartial elections.
As the national voice of the legal profession, the ABA has a special responsibility to
advocate for and work to protect the rights guaranteed by the Constitution and promote
the rule of law.
Many laws passed by state legislatures in recent years threaten to undermine voting
rights and the integrity of the election process, democratic institutions, and the rule of law
that form the foundation of our democracy. Immediate action is required by Congress,
state and local governments, election officials, and private sector entities to protect
elections in 2022 and beyond, and to preserve the rule of law.
Since 1989, the ABA has passed resolutions to protect voting rights and ensure the
integrity of the election process including:
• In 2013 the ABA adopted a Resolution that addresses the U.S. Supreme Court’s
decision in Shelby County v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013), and
urges Congress to preserve and protect voting rights by legislating remedial
amendments to the Voting Rights Act of 1965. 1
• The ABA adopted Election Administration Guidelines and Commentary in 2021,
superseding all earlier versions, 2 and recommending that all election officials
ensure the integrity of the election process through the adoption, use, and
enforcement of the Guidelines. 21S610
This Resolution urges federal, state, local, territorial, and tribal governments to preserve
and protect the right to vote in U.S. elections. To that end the ABA opposes laws and
regulations that have the purpose, intent, or effect of restricting voting rights, the core of
our democracy.
I. THREATS TO THE CONDUCT OF FREE AND FAIR ELECTIONS
Voter suppression efforts can undermine all phases of the voting process:
• Voter registration and casting votes
In recent years, state legislatures have passed and/or proposed laws restricting voting
rights, including, among other things, imposing burdensome ID laws for individuals to
register to vote and/or request an absentee ballot, criminalization of the election process
by creating criminal penalties for anyone assisting a voter in returning a mail ballot, and
for election officials who send out unsolicited ballot applications or ballots, and conducting
unreasonable purges of the voting rolls.
1
See 13A10E, https://www.americanbar.org/groups/public_interest/election_law/policy/13a10e0/.
2 ABA Election Guidelines and Commentary were originally adopted in 2001 and have been updated
periodically and adopted as policy. The ABA Election Guidelines address some of the conduct discussed
in this Resolution.800
• Counting votes by state and local election officials
Some recent state bills could have put politicians rather than independent election officials
in charge of counting votes, opening the door to unjustifiably rejecting ballots and thus
potentially disenfranchising millions of voters.
Ten bills in seven states around the country would have enabled partisan actors to
challenge and overturn election results, thereby undermining confidence in election
outcomes.
• Certification of state vote counts
Adherence to laws prescribing how votes are counted and certified is critical to ensuring
free and fair elections and maintaining confidence in the outcome of the voting process.
“An election isn’t over when the polls close. It’s over when election administrators
complete their postelection activities and the election results are certified. As with
everything else related to elections, state law governs these postelection processes—
and there are 51 models. (The states plus Washington, D.C.).” 3 Free and fair elections
should be conducted by independent election officials, not partisan legislators. 4
II. LAWS THAT RESTRICT VOTING AND UNDERMINE FREE AND FAIR
ELECTIONS
More than a third of all restrictive voting laws enacted in the past decade were passed in
2021. Lawmakers enacted at least 34 laws with restrictive provisions in 19 states. 5
Overall, legislators have introduced more than 440 bills with restrictive provisions in 49
states.
There is a growing divide in the nation, where access to the right to vote increasingly
depends on the state in which a voter happens to reside. “A wave of state legislation on
voting rights and election administration is transforming our democracy, creating a new
fault line between states strengthening our democracy and those restricting it.” 6
At least 25 states enacted 62 laws with provisions that expand voting access. Analysis by
the Brennan Center concluded that “[t]his expansive legislation does not outweigh the
impact of the restrictive laws. The expansive and restrictive sets of legislation are primarily
3 National Conference of State Legislators (NCLS) NCLS, Canvass, Certification and Contested Election
Deadlines and Voter Intent Laws (Oct. 28, 2020), https://www.ncsl.org/research/elections-and-
campaigns/after-the-voting-ends-the-steps-to-complete-an-election.aspx.
4 State and local election officials are elected or appointed and many have a political party
affiliation. Nonetheless, election officials and bodies must be “independent.” Independent means
impartial, free from political interference, and maintaining a neutral distance from competing candidates
and political parties. Impartial election management (officials and governmental bodies) are essential to
ensuring the integrity of the electoral process. See, e.g., Carter Center, Election
standards, https://eos.cartercenter.org/parts/8. “The state should establish an independent and impartial
electoral management body.” “The impartiality of election management bodies should be ensured at all
levels, from the national commission to the polling station.” https://eos.cartercenter.org/criteria/1809.
5 Brennan Center for Justice, State Voting Laws (Jan. 12, 2022),
https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-reform/state-voting-laws.
6 Voting Rights Lab, A Tale of Two Democracies (updated Dec. 6, 2021), https://votingrightslab.org/a-tale-
of-two-democracies-how-the-2021-wave-of-state-voting-laws-created-a-new-american-fault-line/.
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passing in different states — 11 states enacted only restrictive laws in 2021, while 17
states enacted only expansive laws.” 7
The ABA opposes laws and regulations that have the purpose, intent, or effect of
restricting voting rights, the core of our democracy.
1) Permitting state officials, legislators, or boards to decertify election results
without cause; and authorizing state legislators to remove independent state
or local election officials from office or assume their authority to administer
elections.
In a number of states, laws and policies have been enacted that weaken fair election
administration and nonpartisan election certification. 8 Some of these bills, e.g. AZ H.B.
2720, would have empowered state legislatures to reject the results of an election.
Others, e.g. TX S.B. 7, would have granted such a power to other partisan actors such
as elected judges.
Former President Barack Obama expressed serious concerns about these new laws:
Finally and perhaps most perniciously, we’ve seen state legislatures try to assert
power over core election processes including the ability to certify election results.
These partisan attempts at voter nullification are unlike anything we’ve seen in
modern times, and they represent a profound threat to the basic democratic
principle that all votes should be counted fairly and objectively. 9
Several aspects of state bills are sources of concern: 10
• Legislatures taking control over election results – State legislatures are inserted in
the process of certifying elections, allowing them to change election results after
the voters have already spoken.
• Legislatures assuming election responsibilities – Remove executive power and
shift authority to legislatures, including the power to appoint state and local election
officials and to administer elections.
7 Id.
8 NCSL State Elections Legislation Database (Jan. 31, 2022), https://www.ncsl.org/research/elections-
and-campaigns/elections-legislation-database.aspx; Brennan Center, State Voting Laws, supra note 4.
9 Former President Barack Obama: We need to follow John Lewis' example and fight for our democracy,
USA TODAY (Jan. 12, 2022), https://www.usatoday.com/story/opinion/2022/01/12/obama-senate-
democrats-must-protect-democracy-majority-
vote/9185565002/?gclid=EAIaIQobChMIkPOjguTi9QIVCrLICh3T3gwsEAMYASAAEgId8_D_BwE.
10
States United Democracy Center, Protect Democracy, and Law Forward, Democracy Crisis Report
Update: New Data and Trends Show the Warning Signs Have Intensified in the Last Two Months (June
10, 2021), https://statesuniteddemocracy.org/wp-content/uploads/2021/06/Democracy-Crisis-Part-
II_June-10_Final_v7.pdf.
See, ABA Election Administration Guidelines and Commentary (Aug. 2021) Commentary 6.0 – Election
Administration (“Public confidence in the electoral process depends in large measure on both the actual
and perceived impartiality and competence of the election authorities.” “In order to protect the integrity of
the electoral process, there must be no appearance of bias on the part of those involved in the
administration of elections.”)
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• Legislative imposition of criminal or other penalties for election decisions – Create
additional criminal and civil penalties for election administrators and public officials.
For example, Georgia passed S.B. 202 in 2021, a law that could allow the state legislature
to become involved in the counting and certification process. This restrictive omnibus law
politicizes the state’s Board of Elections by removing some of the Secretary of State’s
authority and grants the board new powers to initiate investigations and, in certain
circumstances, to remove professional election officials and take control of election
administration in specific jurisdictions, which could lead to partisan influence in the
election certification process. 11
Under current law, key issues in election management, including decisions on
disqualifying ballots and voter eligibility, are made by county boards of election. County
election boards decide on challenges to voters’ eligibility, polling place closures, and
certification of results. The new Georgia law empowers the legislature to suspend county
election officials. It allows the State Board of Elections to determine that these county
boards are performing poorly, replacing the entire board with an administrator chosen at
the state level.
At the same time, the bill enhances the General Assembly’s control over the state board.
The bill removes the current Georgia Secretary of State from his role as both chair and
voting member of the board. The new chair would be appointed by the legislature, which
already appoints two members of the five-person board, meaning that a majority of the
board will now be appointed by the partisan legislature.
2) Conducting unwarranted voter purges, other than those authorized by the
National Voter Registration Act of 1993 (NVRA). 12
The NVRA requires states to keep voter registration lists accurate and current, such as
identifying persons who have become ineligible due to having died or moved outside the
jurisdiction. At the same time, the Act requires list maintenance programs to incorporate
specific safeguards, e.g., they must be uniform, non-discriminatory, in compliance with
the Voting Rights Act, and not be undertaken within 90 days of a federal election.
Sometimes, states use this process as a method of mass disenfranchisement, purging
eligible voters from rolls for illegitimate reasons or based on inaccurate data, and often
without adequate notice to the voters. 13 Improper voter purges include using partial name
and birth year only matching, using out-of-date databases for address comparison, and
11 Brennan Center, Key States to Watch, supra note 4.
12 U.S. Department of Justice, The National Voter Registration Act of 1993 (NVRA), Questions and
Answers, https://www.justice.gov/crt/national-voter-registration-act-1993-nvra. The NVRA 52 U.S.C.
§20501 (a/k/a Motor Voter Act) was enacted to remove barriers to voter registration.
13 Brennan Center for Justice, Kevin Morris, et. al., Purges: A Growing Threat to the Right to Vote: Voter
purges are an often-flawed process of cleaning up voter rolls by deleting names from registration lists.
Done badly, they can prevent eligible people from casting a ballot that counts. (July 20, 2018),
https://www.brennancenter.org/our-work/research-reports/purges-growing-threat-right-vote
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automatic deletion of addresses. 14 Seven bills would expand opportunities for voter
purges. 15
An Arizona bill removed power from the Secretary of State and allows third parties
designated by the legislature to flag ineligible voters for removal from the rolls. ARS 16-
138.
Make it harder to remain on
AZ S.B. 1485, FL S.B. 90
absentee voting lists
Expand voter purges or risk AZ S.B. 1819, IA S.F. 413, KY H.B. 574, LA H.B.
faulty voter purges 167, NH S.B. 31, TX S.B. 1111, UT H.B. 12
Source: Brennan Center for Justice,
Voting Laws Roundup: December 2021 (updated Jan. 12, 2022)
3) Raising barriers to voting by establishing or expanding burdensome voter
identification requirements for in-person and voting by mail. 16
According to the NCSL, interest in voter ID spiked in 2021, culminating in several
significant enactments for the first time since 2018. Several legislatures have increased
identification requirements for mail ballots — in many cases adding them when they had
previously been nonexistent. 17 For example, Arkansas and Wyoming added or
strengthened existing voter ID requirements, while Indiana and North Dakota expanded
the types of identification accepted for voting. Montana’s bill did both. 18
Twenty-three bills would establish or expand voter identification requirements for either
in-person or mail voting, and three would require proof of citizenship to register to vote. 19
A number of states allow lawmakers to “pre-file” bills ahead of the next legislative session.
Overall, of the pre-filed bills, at least 13 bills in four states would make it harder for voters
to cast a ballot. 20
14 Written Statement of Sophia Lin Lakin, Deputy Director, ACLU Voting Rights Project, Subcommittee on
Elections of the U.S. House Committee on House Administration, Hearing on Voting in America: The
Potential for Voter List Purges to Interfere with Free and Fair Access to the Ballot, May 4, 2021,
https://docs.house.gov/meetings/HA/HA08/20210506/112572/HHRG-117-HA08-Wstate-LakinS-
20210506.pdf.
15 IL S.B. 2946, MI H.B. 4127, MI H.B. 4128, MI H.B. 4491, MI S.B. 277, PA H.B. 143, PA S.B. 878.
16 NCLS Voter ID Laws (Jan. 7, 2022), https://www.ncsl.org/research/elections-and-campaigns/voter-
id.aspx.
17 MIT Election Data + Science Lab, Voter Identification (June 10, 2021),
https://electionlab.mit.edu/research/voter-identification.
18 NCSL, Voter ID: Where Are We Going, Where Have We Been? The Canvass, October 2021,
https://www.ncsl.org/research/elections-and-campaigns/the-canvass-october-2021637668734.aspx.
19 IL S.B. 2949, MA H. 762, MA H. 792, MA H. 812, MA H. 3878, MA H.D. 2559, MI S.B. 285, MI S.B. 303,
NE L.R. 3CA, NY A.B. 4326, NY A.B. 4901, NY A.B. 8180, NY S.B. 1853, NY S.B. 6450, NY S.B. 7368,
OH H.B. 387, PA H.B. 1300, PA H.B. 1334, PA H.B. 1800, PA H.B. 853, PA H.J.R. 1596, PA S.B. 422, PA
S.J.R. 735, WI A.B. 201, WI A.B. 306, WI S.B. 204.
20 AZ S.C.R 1005, MO H.B. 1454, MO S.B. 633, MO S.B. 668, MO S.B. 670, MO S.B. 679, MO S.B. 695,
MO S.B. 738, MO S.B. 780, MO S.B. 861, MO S.B. 900, NH H.B. 1153, SC H.B. 4622.
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Identification for absentee and mail voting, such as including ID numbers or
requiring that signatures be notarized.
Some state lawmakers have shifted their attention to identification requirements for
requesting and returning absentee/mail ballots.
Strict new ID requirements for absentee ballots have been passed that will limit access
to absentee voting. In 2021 six states required voters to provide an ID or take additional
steps when requesting an absentee ballot, such as having their ballot application
notarized. This year, Florida, Georgia and Texas passed laws requiring voters to provide
either their driver’s license number or the last four digits of their social security number
when requesting a ballot, bringing the total to eight states with such laws.
Previously, Georgia law required voters to simply sign their absentee ballot applications.
Now they will have to provide the number from a driver’s license or an equivalent state-
issued identification. The law also creates pitfalls for voters: If they fail to follow all the
new steps, like printing a date of birth or in some cases including partial Social Security
numbers, their ballots could be rejected.
As a result of a new Texas law, for example, it is reported that mail ballot applications are
being rejected by the hundreds – roughly 27 percent of mail ballot applications so far this
primary season. 21
Make voter registration more IA S.F. 413, FL S.B. 90, KS H.B. 2332, MT S.B.
difficult 169, MT H.B. 176, MT S.B. 319, NH S.B. 523, TX
S.B. 1111
Impose harsher voter ID AR H.B. 1112, AR H.B. 1244, FL S.B. 90, GA S.B.
requirements 202, MT S.B. 169, NH H.B. 523, TX S.B. 1, WY
H.B. 75
Impose stricter signature AZ S.B. 1003, ID H.B. 290, KS H.B. 2183, TX S.B.
requirements for mail ballots 1
Source: Brennan Center for Justice,
Voting Laws Roundup: December 2021 (updated Jan. 12, 2022)
4) Curtailing voting by unreasonably restricting absentee or mail-in voting.
Mail/absentee voting has become the most important method of voting in American
elections in the past three decades. The majority of states now permit voters to cast
ballots before Election Day, either in person at designated early voting sites, or via a ballot
that has been mailed to the voter’s home. 22 In all states, to varying degrees, voting now
21Bipartisan Policy Center, Alejandro Marquez, et. al., New Texas Elections Law Already Causing Problems
for Voters, (Feb. 1, 2022), https://bipartisanpolicy.org/blog/new-texas-elections-law-already-causing-
problems-for-voters/
22 NCLS, Early In-Person Voting (Jan. 17, 2022), https://www.ncsl.org/research/elections-and-
campaigns/early-voting-in-state-elections.aspx. Forty-four states, the District of Columbia, American
Samoa, Guam, Puerto Rico and the Virgin Islands offer early in-person voting (this includes states with all-
mail elections). Six states do not offer pre-Election Day in-person voting options: Alabama, Connecticut,
Mississippi, Missouri, New Hampshire, and South Carolina.
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takes place not just on one day during a certain time period, but over a series of days and
weeks before the election.
A number of states allow lawmakers to “pre-file” bills ahead of the next legislative session.
Of the restrictive pre-filed bills, at least seven would limit access to mail voting, including
shortening the time period in which a mail ballot may be requested, eliminating Covid-19
as an excuse for voting by mail, and expanding the grounds on which an absentee ballot
can be rejected. 23
Legislative proposals do not only seek to change the rules for when ballots can be
received; they would also move the postmark deadline to well before election day. A bill
in Arizona would require the absentee ballots to be postmarked by the Thursday before
the election, while a bill in Iowa would require ballots to be mailed at least 10 days before
the election.
Other states would require that absentee ballots be notarized.
Georgia has cut by more than half the period during which voters may request an
absentee ballot, from nearly six months before an election to less than three.
The Georgia law also limits the placement of ballot drop boxes. For the 2020 election,
there were 94 drop boxes across the four counties that make up the core of metropolitan
Atlanta: Fulton, Cobb, DeKalb and Gwinnett. The new law limits the same four counties
to a total of, at most, 23 drop boxes, based on the latest voter registration data.
There will not only be fewer drop boxes. Instead of 24-hour access outdoors, the boxes
must be placed indoors at government buildings and early-voting sites and will thus be
unavailable for voters to drop off their ballots during evenings and other non-business
hours.
Shorten window to apply for a mail AL H.B. 538, AR S.B. 643, GA S.B. 202, IA S.F.
ballot 413, KY H.B. 574, NY S.B. 264, OK H.B. 2663
Shorten deadline to deliver mail AR S.B. 643, IA S.F. 413
ballot
Restrict assistance in returning a AR H.B. 1715, FL S.B. 90, IA S.F. 413, IA S.F.
voter’s mail ballot 568, KS H.B. 2183, KY H.B. 574, MT H.B. 530, TX
S.B. 1
Limit the number, location, or FL S.B. 90, GA S.B. 202, IA S.F. 413, IN S.B. 398
availability of mail ballot drop
boxes
Make it harder to remain on AZ S.B. 1485, FL S.B. 90
absentee voting lists
Source: Brennan Center for Justice,
Voting Laws Roundup: December 2021 (updated Jan. 12, 2022)
23
SC H.B. 4622, NH H.B. 1153, MO S.B. 633, MO S.B. 679, MO S.B. 695, MO S.B. 738, MO S.B. 900.
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5) Creating restrictive voting rules, eliminating polling places, or reducing the
number of lockboxes for depositing votes that impede in-person voting.
The Georgia law makes it illegal for election officials to mail out unsolicited ballot
applications or mail ballots. Likewise, individuals who assist voters with returning mail
ballots, including those assisting voters who have disabilities, may be subject to criminal
penalties.
Individuals offering food or water to voters waiting in line now risk misdemeanor charges.
Georgia law effectively bars third-party groups or anyone who is not an election worker
from providing food and water to voters waiting in line, despite long lines that deter people
from voting.
If election problems arise, a common occurrence, it is now more difficult in Georgia to
extend voting hours.
States are limiting poll watchers or individuals authorized to be present during vote
counting on a partisan basis and permitting poll watchers or individuals authorized to be
present during vote counting to harass voters or election officials.
Reduce polling place availability IA S.F. 413, MT S.B. 196, TX S.B. 1
(locations or hours)
Increase number of voters per NV S.B. 84
precinct
Limit early voting days or hours GA S.B. 202, IA S.F. 413, TX S.B. 1
Source: Brennan Center for Justice,
Voting Laws Roundup: December 2021 (updated Jan. 12, 2022)
6) Authorizing or condoning conduct that harasses election officials.
Harassment of election officials in person and online
Election officials have been harassed and threatened in a multitude of ways by e-mail,
telephone calls, letters, on social media, and in person, with abusive language, threats of
violence and even death. Family members, neighbors and colleagues have been the
subject of these threats and harassment as well. Numerous live, online, and print reports
have documented this abuse. 24
Criminal penalties for certain actions by election officials
24 New York Times, Here are the Threats Terrorizing Election Workers (Dec. 3, 2020),
https://www.nytimes.com/2020/12/03/us/election-officials-threats-trump.html (describes the harassment of
state election officials, local election supervisors, voting nonprofit leaders, and voting machine technicians);
Brennan Center for Justice and the Bipartisan Policy Center, Election Officials Under Attack: How to Protect
Administrators and Safeguard Democracy, (June 16, 2021), https://www.brennancenter.org/our-
work/policy-solutions/election-officials-under-attack; Linda So, Trump-Inspired Death Threats Are
Terrorizing Election Workers, Reuters, (June 11, 2021), https://www.reuters.com/investigates/special-
report/usa-trump-georgia-threats/.
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Five bills propose new criminal penalties for election officials who mail out unsolicited mail
ballots or for individuals who assist voters with returning mail ballots, including those
assisting voters who have disabilities. 25
III. REPORTS ON THE LEGISLATIVE LANDSCAPE
There has been widespread discussion about the potential effect of the recently passed
state election laws (and those proposed for 2022) in the media, academia, advocacy
groups, and among state and federal legislators.
Contributing to the nationwide discussion, the following reports provide an overview of
the legislative landscape and varying views of what must be done to protect democracy
and ensure the conduct of free and fair elections. They also provide assessments of the
impact the new laws may have on various categories of voters.
• Brennan Center for Justice, Laws Roundup: December 2021: This year’s tidal wave
of restrictive voting legislation will continue in 2022 (Jan. 12, 2022),
https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-
december-2021.
• Voting Rights Lab, State Voting Rights Tracker, https://tracker.votingrightslab.org/.
• New York City Bar Association, The Consent of the Governed: Enforcing Citizens’
Rights to Vote (Sept. 16, 2021). http://www.nycbar.org/member-and-caareer-
services/committees/reports-listing/reports/detail/american-right-to-vote-election-
reform-laws.
• MIT Election Data + Science Lab, Voter Identification (June 10, 2021),
https://electionlab.mit.edu/research/voter-identification.
• United States Democracy Center, Democracy Crisis in the Making Report Update:
2021 Year-End Numbers, https://statesuniteddemocracy.org/resources/decupdate/.
This report is a partnership between States United, Law Forward and Protect
Democracy.
• NAACP LDF, Civil Rights Groups Send Letter Regarding Electoral Act Reform to
Senate Majority Leader Schumer (Feb. 2, 2022), https://www.naacpldf.org/news/civil-
rights-groups-send-letter-regarding-electoral-act-reform-to-senate-majority-leader-
schumer/
• Atlantic, Vann R. Newkirk II, Voter Suppression Is Warping Democracy: A new survey
from The Atlantic and the Public Religion Research Institute shows that black and
Hispanic citizens are more likely than whites to face barriers at the polls—and to fear
the future erosion of their basic political rights,
25
PA H.B. 1703, 1800 and 1300 (criminal penalty for anyone assisting a voter in returning a mail ballot,
with narrow exceptions), WI A.B. 201 (criminal penalty for election officials who send out an unsolicited
mail ballot or mail ballot application), WI S.B. 204 (criminal penalty for election officials who send out an
unsolicited mail ballot).
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https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-
suppression/565355/
• Protect Democracy, On Democracy and Authoritarianism: The Present State of
American Affairs (Nov. 2021), https://www.flipsnack.com/protectdemocracy/on-
democracy-and-authoritarianism-american-affairs/full-view.html.
• Brennan Center for Justice, Will Wilder, Voter Suppression in 2020: Race
discrimination in voting persisted in the 2020 elections and their aftermath (Aug. 20,
2021), https://www.brennancenter.org/our-work/research-reports/voter-suppression-
2020.
• ACLU, Block the Vote: How Politicians are Trying to Block Voters from the Ballot Box
(Aug. 18, 2021), https://www.aclu.org/news/civil-liberties/block-the-vote-voter-
suppression-in-2020/.
• NAACP Legal Defense and Educational Fund (LDF), Democracy Defended (Sep. 15,
2021), https://www.naacpldf.org/press-release/ldf-releases-report-detailing-voter-
suppression-in-2020-election-season/.
• Public Citizen, Mike Tanglis, et. al., The Corporate Sponsors of Voter Suppression
(April 2021), https://mkus3lurbh3lbztg254fzode-wpengine.netdna-ssl.com/wp-
content/uploads/The-Corporate-Sponsors-of-Voter-Suppression.pdf.
• Center for Public Integrity, Matt DeRienzo, Barriers to the Ballot Box. Analysis: New
and age-old voter suppression tactics at the heart of the 2020 power struggle: Making
voting harder is about grabbing even more disproportionate power and delaying the
impact of shifting demographics (Oct. 28, 2020),
https://publicintegrity.org/politics/elections/ballotboxbarriers/analysis-voter-
suppression-never-went-away-tactics-changed/.
• American Progress, Voter Suppression Laws Cost Americans Their Voices at the
Polls (Nov. 11, 2016), https://www.americanprogress.org/article/voter-suppression-
laws-cost-americans-their-voices-at-the-polls/
• DHS Cybersecurity & Infrastructure Security Agency, Election Security Rumor vs.
Reality (updated Nov. 2, 2022), https://www.cisa.gov/rumorcontrol.
• Congressional Research Service (CRS), Counting Electoral Votes: An Overview of
Procedures at the Joint Session, Including Objections by Members of Congress (Nov.
15, 2016), https://crsreports.congress.gov/product/pdf/RL/RL32717/12.
IV. EXISTING ABA POLICY
Since 1989, the ABA House of Delegates and the ABA Board of Governors have passed
Resolutions and adopted policies to strengthen the election process. 26 This Resolution
builds on and is consistent with those existing ABA policies, while also taking a more
comprehensive approach to the recent problem of voter suppression.
26 ABA Election Law Policies, https://www.americanbar.org/groups/public_interest/election_law/policy/.
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These ABA policies include the following:
• Adopted a policy in 2005 that supported the 25-year extension of the Voting
Rights Act. 05A108. In 2006 the ABA Board of Governors reaffirmed this policy
and urged amendments strengthening its provisions. 6/06BOG2.3.
• Adopted a policy in 2013 that addresses the U.S. Supreme Court’s decision in
Shelby County v. Holder, urging Congress to preserve and protect voting rights by
legislating remedial amendments to the Voting Rights Act of 1965, including but
not limited to: a new coverage formula setting forth the criteria by which
jurisdictions shall be subject to Section 5 preclearance; strengthening the litigation
remedy available under Section 2; expanding the "bail in" provision under Section
3; or some combination of these concepts. 13A10E.
• Adopted Election Administration Guidelines and Commentary in 2021,
superseding all earlier versions, and recommended that all election officials ensure
the integrity of the election process through the adoption, use, and enforcement of
the Guidelines. 21A610. ABA Election Guidelines were originally adopted in 2001
and have been updated periodically and adopted as policy.
• Urges states, localities and territories to develop written contingency plans
detailing what should be done to preserve the election process in the event of an
emergency. 14A113A.
• Adopted an election resolution that focused on election cybersecurity and
protection of the entire “election process” for federal elections, including election
management by private sector companies. 20M118.
• Adopted two election resolutions at the 2020 annual meeting. Resolution 300a
consists of five measures to protect electoral processes by combating the spread
of disinformation and addressing interference in U.S. electoral processes.
20A300A. Resolution 300b urged the U.S. Congress, state and local legislatures,
and social media companies to act to protect voting and other core electoral
processes in U.S. elections. 20A300B.
V. CONCLUSION
The ABA has traditionally been an active and guiding voice in matters involving the
electoral process. Adoption of this Resolution will ensure that the ABA can bring its
influence to bear in Congress, state and local legislatures, and the courts, as well as with
election officials, to address issues related to protecting democracy and to oppose efforts
to undermine free and fair elections across the United States. As the preeminent voice of
the legal profession, the ABA is well-positioned to speak on critical issues related to voting
rights that are at the core of our democratic system of government
Respectfully Submitted,
Wayne McKenzie, Criminal Justice Section, Chair
Ericka Watson, Science & Technology Law Section, Chair and Lucy L. Thomson,
District of Columbia Bar, Delegate
Beth K. Whittenbury, Civil Rights and Social Justice Section, Chair
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Claudia Rast and Maureen Kelly, Cybersecurity Legal Task Force, Co-chairs
February 2022
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GENERAL INFORMATION FORM
1. Summary of Resolution(s).
This Resolution urges federal, state, local, territorial, and tribal governments to
preserve and protect the right to vote in U.S. elections. To that end the ABA opposes
laws and regulations that have the purpose, intent, or effect of restricting voting rights,
the core of our democracy.
2. Indicate which of the ABA’s four goals the resolution seeks to advance (1-Serve our
Members; 2-Improve our Profession; 3-Eliminate Bias and Enhance Diversity;
4-Advance the Rule of Law) and provide an explanation on how it accomplishes this.
This resolution meets Goal 4. Fair and impartial elections are the bedrock of
democracy and representative government and are integral to the rule of law. The
ability of citizens to participate fully in the electoral process is a measure of the
success of the rule of law.
3. Approval by Submitting and Co-sponsoring Entities.
The Science & Technology Law Section and the Criminal Justice Section, voted to
sponsor this Resolution on February 11, 2022. The Civil Rights and Social Justice
Section and Cyberspace Legal Task Force voted to co-sponsor this Resolution on
February 12, 2022.
4. Has this or a similar resolution been submitted to the House or Board previously?
No.
5. What existing Association policies are relevant to this resolution and how would they
be affected by its adoption?
Since 1989, the ABA House of Delegates and the ABA Board of Governors have
passed Resolutions and adopted policies to strengthen the election process.
This Resolution builds on and is consistent with those ABA policies, while also
addressing recent emerging threats to voting and the rule of law.
In 2013 the ABA adopted a policy that would address the U.S. Supreme Court’s recent
decision in Shelby County v. Holder, urging Congress to establish a coverage formula
setting forth criteria by which jurisdictions shall or shall not be subject to Section 5
preclearance of the Voting Rights Act. 13A10E.
This ABA policy, as well as the ABA Election Guidelines, are summarized in section
IV of this Report.
6. What urgency exists which requires action at this meeting of the House?
Its timing was determined by the need to address at the ABA 2022 mid-year meeting
the protection of voting rights in the upcoming 2022 elections and beyond.
7. Status of Legislation. (If applicable)
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Bills have been introduced in Congress and in state legislatures regarding the
administration of elections that are relevant to this resolution. Key proposals include
the following bills.
Freedom to Vote Act, S. 2747, 117th Congress
A broad package of voting, redistricting, election security, and campaign finance
reforms that would ensure minimum national standards for voting access for every
American. It would also prevent partisans from sabotaging election results.
The Act would protect U.S. elections from voter suppression, partisan sabotage,
gerrymandering, and dark money.
John Lewis Voting Rights Advancement Act of 2021, H.R. 4, 117th Congress
The Act would restore and update the full protections of the Voting Rights Act of 1965
to prevent discriminatory practices and rules in voting from being implemented in
states and localities where discrimination is persistent and pervasive, protecting
access to the vote for all eligible voters, regardless of race, color, or ethnicity. It would
restore voters’ ability to challenge discriminatory laws nationwide.
This bill was passed by the U.S. House of Representatives on August 24, 2021
U.S. States
In 2021 at least 19 states passed 34 laws restricting access to voting. 27
8. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
The Resolution will be disseminated to state legislators, Secretaries of State, and
other election officials responsible for the ongoing review and improvement of the
election process in their states and localities, as well as to the U.S. Congress, which
has authority to enact legislation governing federal elections.
It will alert them to the ABA’s newly-adopted policy and encourage them to take action
consistent with the ABA policy. We also encourage their use by the ABA
Governmental Affairs Office and Amicus Curiae Committee in advocacy on behalf of
the Association.
9. Cost to the Association. (Both direct and indirect costs).
None.
10. Disclosure of Interest. (If applicable)
Not Applicable.
11. Referrals.
ABA Sections:
State and Local Government Law; Science & Technology Law; Criminal Justice;
27Brennan Center for Justice, Laws Roundup: December 2021: This year’s tidal wave of restrictive voting
legislation will continue in 2022 (Jan. 12, 2022), https://www.brennancenter.org/our-work/research-
reports/voting-laws-roundup-december-2021.
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Civil Rights & Social Justice
Standing Committees:
Election Law, Cybersecurity Legal Task Force
ABA Divisions:
Young Lawyers; Senior Lawyers
12. Contact Name and Address Information. (Prior to the meeting)
Bar Association
Lucy L. Thomson
Cell phone: (703) 798-1001
e-mail: lucythomson1@mindspring.com
13. Contact Name and Address Information. (Who will present the report to the House?)
Lucy L. Thomson
Cell phone: (703) 798-1001
e-mail: lucythomson1@mindspring.com
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EXECUTIVE SUMMARY
1. Summary of the Resolution
This Resolution urges federal, state, local, territorial, and tribal governments to
preserve and protect the right to vote in U.S. elections. To that end the ABA opposes
laws and regulations that have the purpose, intent, or effect of restricting voting rights,
the core of our democracy.
2. Summary of the Issues that the Resolution Addresses
The ABA opposes laws and regulations that have the purpose, intent, or effect of
restricting voting rights, the core of our democracy. The Resolution identifies seven
aspects of the election process and operations that can undermine voting rights:
1) Permitting state officials, legislators or boards to decertify election results
without cause;
2) Authorizing state legislatures to remove independent state or local election
officials from office or assume their authority to administer elections;
3) Conducting unwarranted voter purges, other than those authorized by the
National Voter Registration Act;
4) Raising barriers by establishing or expanding strict voter identification
requirements for in-person and/or voting by mail;
5) Curtailing voting by unreasonably restricting absentee or mail-in voting;
6) Creating restrictive voting rules that impede in-person voting and harass
voters; and
7) Authorizing or condoning conduct that harasses election officials.
3. Please Explain How the Proposed Policy Position Will Address the Issue
Many laws passed by state legislatures in recent years threaten to undermine voting
rights and the integrity of the election process, democratic institutions, and the rule of
law that form the foundation of our democracy. The Resolution identifies legislation
and policies that can undermine all phases of the voting process: (1) voter registration
and casting votes, (2) counting votes by state and local election officials, and (3)
certification of state vote counts.
Immediate action is required by Congress, state and local governments, election
officials, and private sector entities to protect elections in 2022 and beyond, and to
preserve the rule of law.
4. Summary of Minority Views
No minority views have come to our attention with respect to this Resolution and
Report.
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