Democrats’ lackluster performance in downballot races is a double-edged sword for election and voting rights reform

• As President-elect Joe Biden won back the White House, Democrats suffered disappointing results down the ballot in congressional and state-level elections. 
• With a low chance of Congress passing sweeping federal voting rights legislation, Republicans’ success in retaining control of state legislatures has major implications for efforts to reform US elections.
• At first glance, Democrats not being guaranteed to take back the US Senate and failing to make up much ground in state legislatures seems like a majorly prohibitive setback for expansions of voting rights. 
• But Republicans’ success in downballot elections with record levels of early in-person and mail voting could increase the chances of legislatures permanently expanding access to the ballot box. 

• “If you look at the partisan makeup up and down the ballot in states where there was an increase in mail voting, Republicans held their own in terms of legislative control,” one election expert told Insider. 

• Visit Business Insider’s homepage for more stories.

Despite President-elect Joe Biden winning back the White House, Democrats fared far worse in congressional and state legislative elections down the ballot — results that could have significant implications for legislative efforts to expanding access to the ballot. 

On the surface, the outcome appears to be a setback for democracy reform efforts, given Republican legislatures’ often aggressive role in enacting new voting restrictions in the past decade.

But the GOP’s success down the ballot with a record-shattering number of Americans voting early in-person or by mail may give efforts at expanding voting access a fighting chance, experts told Insider. 

Democrats will see a net loss of at least four seats in their majority in the US House of Representatives, Decision Desk HQ projects. And after failing to unseat many Republican Senators, Democrats must now win two January runoffs in Georgia to get to 50 seats in the Senate, with Vice President-elect Kamala Harris serving as the tie-breaker to create a slim majority. 

In state legislatures, where most political power in the US is located, Democrats failed to flip a single one of the chambers they set out to win back this year, and lost control of both chambers of the New Hampshire state legislature.

With some races still too close to call, Republicans are projected to gain 77 lower chamber seats on net nationwide, according to election forecasting site CNalysis, and four state senate seats on net nationwide. 

Election officials across the country conducted a remarkably successful, secure, and peaceful election on pace to reach record levels of turnout, defying widespread fears of the pandemic causing election chaos.

But the rise in mail voting spotlighted some of the outdated and burdensome election laws some states have on their books, and the complex patchwork of laws and standards between states. 

On Friday, House Speaker Nancy Pelosi said she would prioritize reviving the For the People Act, or HR1, democracy reform legislation that would bolster campaign finance and government ethics regulations, make Election Day a federal holiday, expand voter registration, and set nationwide rules for elections. 

“Our election administration system is broken and we need more uniform national standards to ensure that all voters have access to the ballot box,” Vanita Gupta, President and CEO of the Leadership Conference on Civil and Human Rights, told Insider. 

But unless Democrats win back both Georgia Senate seats, the odds of Congress passing any meaningful voting rights reform, including either HR1 or a reinvigorated Voting Rights Act are slim to none, American Enterprise Institute resident scholar Norm Ornstein told Insider. 

“With a Republican Senate, there is zero chance of an HR1, or any ambitious voting rights bill. But smaller, targeted bills might work — especially now that Republicans see that a sharply enhanced turnout does not work against them,” Ornstein said. “Maybe a bill to move Election Day to Veterans’ Day, maybe more money for election security, maybe even enhanced registration. But the odds remain low even for those.” 

The bulk of legislative action to reform elections will occur in the states

Elections administration in the United States is highly decentralized, and Congress ultimately plays far less of a role than the states. The vast majority of election laws are written and enacted by state legislatures, and then executed by election officials at the local level.

“State legislatures have a mandate — and the unique ability — to make voting fair for all Americans,” Simone Leiro, communications director for Democratic state legislative policy group the FutureNow Fund told Insider. “Legislators that were elected last week can prioritize expanding automatic voter registration, early voting, and mail-first voting,” 

Republicans continuing to dominate state legislatures may be a roadblock to enacting many of those policy changes, which have largely been championed by Democratic legislatures in recent years. 

“To be the policymaker in a state, you need to control the legislature and the governorship. And so when looking at the topline, Democrats will be able to pass agendas as they see fit in fewer states than Republicans,” Ben Williams, policy specialist for Elections and Redistricting at the National Conference of State Legislatures, told Insider. 

Williams argued, however, that Republicans’ strong showing in downballot elections alone proves that both giving voters more options to cast a ballot does not necessarily doom Republican candidates — providing a possible opening for bipartisan agreement on election reforms. 

In total, over 35 states, Republican and Democratic-controlled alike, temporarily expanded access to or loosened restrictions on mail voting, in-person early voting, or both, for the 2020 general election, according to Ballotpedia, with all but five US states either sending every voter a ballot or allowing anyone to vote by mail. 

And long before the pandemic, Republican legislatures in states including Georgia, Florida, and Ohio have expanded access to mail voting, early in-person voting, and in Georgia’s case, automatic voter registration.

Kentucky is one of the red states that could extend pandemic-era voting changes

“Whether states make the temporary changes from 2020 permanent is the real million-dollar question,” Williams said. “If you look at the partisan makeup up and down the ballot in states where there was an increase in mail voting, Republicans held their own in terms of legislative control.” 

Williams pointed to the example of Kentucky, which prior to 2020 did not offer in-person early voting or no-excuse mail voting, and had among the lowest voter turnout rates in the nation.

In response to the pandemic, Democratic Gov. Andy Beshear and Republican Secretary of State Michael Adams established three weeks of in-person early voting, enabled any voter to vote by mail if they feared contracting COVID-19, and allowed voters to request a ballot online and correct mistakes with their ballot. 

Read more: Legal problems galore await Trump now that he’s lost reelection — and, soon, his presidential immunity

The state both exceeded its 2016 presidential election turnout and state Republicans flipped control of over a dozen seats in the state House and two seats in the State Senate, per CNalysis.

While Beshear would like to make the changes permanent, Adams told WDRB News that while he doesn’t support enacting no-excuse mail voting due to the cost, he’ll be introducing legislation next year to enact in-person early voting for future elections.

Williams said he expects officials in other states to also permanently extend at least some of their pandemic-era expansions to the ballot box.

“I would not be surprised at all by the time we get to early next year when the legislative sessions come in, we see states codifying their temporary changes from this year, mainly because in most states, if voters vote by mail, they tend to like it,” Williams said.