With help from Rishika Dugyala, Jesse Naranjo and Teresa Wiltz

What up, Recast fam! A programming note: This will be our final Recast of 2023. We’ll be on hiatus for the rest of the year, returning to your inboxes on Wednesday, Jan. 3. Wishing you all a restful holiday season and blissful start to 2024, which we’re sure will be totally quiet since not much will be going on. OK, let’s jump in.

Voting rights advocates are gearing up for a busy start to 2024 as a pair of court challenges to recently enacted election laws make their way through the legal system.

In Texas, a six-week federal trial wrapped in October where nearly two dozen state and national organizations brought a series of lawsuits against the state’s Senate Bill 1. Enacted in 2021, the law ushered in a major restructuring of state voting laws, moving to curtail some provisions that made it easier to cast ballots during the height of the pandemic, including 24-hour and drive-thru voting and loosening rules around mail-in ballots.

Historically Black sorority Delta Sigma Theta and the NAACP Legal Defense Fund are among the groups suing the state, arguing the Texas law violates federal legislation, including the Voting Rights Act, the Rehabilitation Act, the Americans with Disabilities Act — along with the First, 14th and 15th Amendments.

Oral arguments for post-trial submissions in that case are slated for Feb. 13.

Both LDF and Delta Sigma Theta are mounting a similar legal challenge to Georgia’s election law, commonly referred to as SB 202. No trial date has been set in that case.

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These legal actions come as the Republican-led legislatures in Texas and Georgia defend their new voter laws as necessary to prevent fraud and to more accurately account for who is participating in state-run elections. Defenders of the law in both states say the laws are working as intended. In Georgia in particular, proponents point out that, contrary to critic’s dismal predictions, the state saw record turnout during the 2022 midterms, where more votes were cast than any previous midterm election, including early voting and mail-in votes.

In Texas, while the 2022 turnout was down from the previous high in 2018, it still fared better than most recent midterm elections in the state.

On the face of it, robust voter turnout in those states severely undercuts voting rights advocates’ central challenge to the standing of the election laws. But both Meka Simmons, general counsel and chief compliance officer at Delta Sigma Theta Sorority, Inc., and Amir Badat, voting special counsel and manager at the NAACP Legal Defense Fund, tell me that couldn’t be further from the truth.

We discuss why they say voter turnout is a fickle metric for measuring the impact of these laws — particularly for voters of color — and how the failure to pass federal voting rights legislation when Democrats controlled all three branches of government has made their fight for equitable voting laws more challenging.

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This interview has been edited for length and clarity.

THE RECAST: I understand the central argument in both cases is that these laws suppress voter participation by erecting cumbersome hurdles. And those hurdles, you argue, disproportionately impact particular voters of color.

But in Georgia for example, Brad Raffensperger, the state’s Republican secretary of state, sent out a memo last year touting the record numbers of voters that participated in the midterm elections, particularly in the runoff in the Georgia Senate race between Herschel Walker and Sen. Raphael Warnock (D-Ga.).

Do you think these arguments that these voting laws are restrictive are sort of falling on deaf ears?

MEKA SIMMONS: Our decision to join these cases was not a party-based decision. We are nonpartisan. Our decision to join these cases was about equality and justice and looking at the impact that these laws could have.

Just because there was record turnout in Georgia that year doesn’t mean that you let a law stand that could ultimately have a negative impact. The law itself is a threat.

To have something standing that could allow for that type of detrimental and unfair impact, particularly to Blacks, Latinos or people with disabilities, is just not acceptable.

AMIR BADAT: I think this is a really, really important question, because there is this narrative out there that says, “What are you talking about voter suppression? We’ve had incredible turnout, including the states that are saying or passing all of these voter suppression laws.” And I think it’s really a misleading narrative for a couple of reasons.

First, turnout is a fickle metric for measuring the impact of these particular laws.

That’s because there are so many variables that go into how voters turnout on a particular Election Day, including who’s on the ballot to whether or not it’s raining — all of those things go into how many people ultimately come out to vote.

So that’s why as a voting rights attorney, we don’t look at turnout as the primary metric in terms of measuring what the impact of a particular voting law is. The metric that we use is the cost of voting. There can be transportation costs, there can be health costs with Covid … and all sorts of costs like that, that we have to look at.

On the issue of turnout, we saw records in 2020, particularly among Black and Hispanic [voters] before laws like SB 1 and SB 202 came into place. It led legislatures to implement these laws that tried to suppress the vote. The fact that turnout has still continued to be very high is despite the impact of the new voting laws.

THE RECAST: Not to belabor this point, but Warnock and the Democrats won in Georgia during the 2022 midterms — with the new voting laws on the books. If Democrats have successfully made a previously red state into a purple state, why are you pushing so hard against this? And in Texas, in Harris County, which includes Houston, are there places you can point to voters being turned away in disproportionate numbers?

BADAT: Yes, absolutely. In SB 1 in Texas, we saw unprecedented rejection rates of mail-in ballots in the March 2022 primary, the first major election after SB 1 was passed. The rejection rates skyrocketed because of the law’s provision that requires placing either your driver’s license number or your Social Security number on both the application to vote by mail, and the ballot to vote by mail. And it requires that that number match what is already in the voter registration database.

As you can imagine, a lot of people probably don’t remember what is in their voter registration file; they might not remember their driver’s license number off the top of their head; their handwriting might be difficult to read; it might be difficult for people to read what the actual number is.

There is evidence we presented from witnesses with disabilities, who said that they could not get the assistance that they need. They were not able to get people to assist them with casting their ballot because of provisions that require them to disclose certain information about who was assisting them which subjects people to potential criminal penalties if they might make a mistake filling some of those forms.

SIMMONS: And to Amir’s point, I would simply say, our focus is on whether or not the legislation is equitable — in theory or impact, right? Interestingly enough, when we were in court in Texas, part of the state’s argument was: “Well, no one’s gone to jail yet.”

No one’s gone to jail yet, but people have gone to jail in the past in Texas, and to have legislation on record that would allow for it to be a felony for a person to make a misstep in assisting someone to vote in these really nuanced ways is just inequitable when you think about who’s impacted by it.

So you might not see it now. But as the country progresses — and we’re in a fight for our democracy on all levels — we don’t want to allow that to stand on the books. We can’t.

THE RECAST: If we could take just a step back for a little bit and just acknowledge that politics plays a role in all of this, right? How much of your challenge to some of these state laws is a direct result of Democrats who had control of the Senate and the House when Biden got elected, but were unable to pass federal updates to voting rights laws, like the John R. Lewis Voting Rights Advancement Act and the For the People Act?

SIMMONS: Look, the lack of federal protection puts us in a position where we don’t have any other choice, but to attack this on a state level. We are working with our friends and partners at the LDF and we’re not just taking the approach of litigation in court. We’re looking at legislation, proactive legislation that will codify equality and voting access and voters’ rights.

We’re hopeful that if we are able to be successful in these states that have a history of suppressing voter rights, that will lead to more acceptance and a movement across the nation. If we’re able to be successful in Texas, that would be huge. That says a lot about equality and equity, because it is a red state and it will show this is apolitical, it’s about everyone’s voice deserving to be heard.

BADAT: We’ve been obviously working very, very vigorously for federal legislation to be passed for years now to cure some of the damage that’s been done by the Supreme Court in the Shelby County v. Holder and the Brnovich v. Democratic National Committee to the Voting Rights Act.

Obviously we’ve had some successes on the state level, but we haven’t been able to get bills passed on the federal level. But while that fight continues, we’re still working on the state level to ensure that these bad state-level voter suppression laws are being challenged in court.

So that requires a multipronged approach from us and we’re going to continue fighting at all levels to make sure that we have the protections in place to allow Black and Hispanic and other voters of color and voters from marginalized communities to be able to cast their ballots — and have them counted.

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