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The Canvass | February 2021

January 28, 2021

Lead Article: Then and Now: Election Policies in 2000 and 2020

“2000 woke up the world to election administration issues,” says Ben Ginsberg, former co-chair of the Presidential Commission on Election Administration (PCEA) and GOP elections law expert extraordinaire. Bob Bauer, the co-chair of the PCEA and equally distinguished expert from the Democratic side, agrees. The agonizingly close presidential race in 2000 illuminated flaws in our election system, and since then, election administration has taken on priority status in legislatures across the country.

In fact, presidential elections in both 2000 and 2020 brought election administration to the forefront of lawmakers’ and the public’s minds. But the issues at hand couldn’t be more different.

As Bauer explains, most partisan disagreement in the 2000 Bush vs. Gore election focused on how to resolve who won the presidential election in Florida. In 2020, though, "the battle [was] right at the source across the country: about how the rules are drawn, the role of courts in changing the rules, the role of state executive officials in implementing the rules—it’s a very different fight.”

Indeed, “fight” is an apt word. One of the biggest takeaways from our conversation with these election veterans is that election-related litigation has been on the rise since 2000.

Other notable changes? Election administration has become more professionalized and voters have more options and access than ever before. “Americans expect convenience,” says Bauer, adding that both “Democrats and Republicans were under pressure from the voters to modernize.”

And that change, more than any other, is borne out by the numbers. Between 2000 and 2020, voting options—such as all-mail voting, no-excuse absentee voting and early in-person voting—have become more widespread. At the same time, voter identification requirements also increased. Other policies, like voter registration,  adapted to 21st century technology with the advent of online voter registration and the marked increase in same-day registration. Technology has helped with election security as well, with a marked uptick in post-election audits (especially risk-limiting audits) and new ways to maintain voter registration lists. 

Read on for the details of policy choices that have seen big changes in the last 20 years. 

All-Mail Voting

2000: 1 state. (Oregon)

2020: 5 states. (Colorado, Hawaii, Oregon, Utah and Washington)

In 1998, Oregon became the first state to enact all-mail elections when voters approved a citizen initiative requiring the state to mail ballots to all registered voters. The Beaver State implemented the law in 2000. By 2020, however, four more states joined Oregon in conducting elections mostly by mail. In 2012, Utah permitted jurisdictions to choose whether to conduct elections by mail, and all Utah counties did so by 2019. Washington implemented all-mail elections in 2012, Colorado in 2014, and Hawaii in 2020.

When the COVID-19 pandemic disrupted elections across the country, four states (California, Nevada, New Jersey and Vermont) and Washington, D.C., chose to run elections entirely by mail—for 2020 only. Now that they’ve had a trial run, will any of those states make the shift permanent? It’s too early in the 2021 legislative sessions to know yet, but seeing five grow to six or seven isn’t an impossibility this year.

For more information, see the “All-Mail Elections” section of NCSL’s Voting Outside the Polling Place report.

No-Excuse Absentee Voting

2000: 22 states. (Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon [all-mail elections], Tennessee, Utah, Vermont, Washington, Wisconsin and Wyoming.)

2020: 34 states. (Alaska, Arizona, California, Colorado [all-mail elections], Florida, Georgia, Hawaii [all-mail elections], Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon [all-mail elections], Pennsylvania, Rhode Island, South Dakota, Utah [all-mail elections], Vermont, Virginia, Washington [all-mail elections], Wisconsin and Wyoming.)

From the creation of absentee voting during the Civil War until the 1980s, voters needed to supply an excuse—away from home, ill, etc.—to receive an absentee ballot. In the 1980s, California became the first state to allow voters to request an absentee ballot without a reason, and by 2000 nearly half of the states had followed suit and enacted no-excuse absentee voting.

Now, voters in over two-thirds of the states can request an absentee ballot without providing any reason at all. Virginia joined this group most recently, enacting no-excuse absentee voting in early 2020.

For more information, see the table of states with no-excuse absentee voting from NCSL’s Voting Outside the Polling Place report.

Early In-Person Voting

2000: 22 states. (Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Iowa, Idaho, Illinois, Indiana, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oklahoma, Oregon, Tennessee, Texas and Vermont.)

2020: 43 states. (Alabama, Alaska, Arizona, Arkansas, California, Colorado [all-mail elections], Florida, Georgia, Hawaii [all-mail elections], Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon [all-mail elections], Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah [all-mail elections], Vermont, Virginia, Washington[all-mail elections], West Virginia, Wisconsin and Wyoming.)

Early voting has been around since the very first presidential election, when, by necessity, elections were conducted over a season, rather than on a single Election Day. Texas, however, pioneered what we think of when we say “early voting”—in-person voting at a polling place during an established period of time prior to the designated Election Day. The Lone Star State implemented the voting option in 1991, and legislatures around the nation quickly followed its lead. By 2000, 22 states offered early in-person voting.

Interest in early voting has continued to grow—as of 2020, 43 states have early voting periods. And that number will increase to 44 soon when Delaware’s early voting law goes into effect in 2022.

For more information, see NCSL’s Early Voting webpage.

Voter Identification Requirements

2000: 13 states. (Alaska, Arizona, Connecticut, Delaware, Florida, Georgia, Hawaii, Kentucky, Louisiana, South Carolina, Tennessee, Texas and Virginia.)

2020: 34 states. (Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin.)

Requiring voters to show some form of identification at the polls has become much more widespread since 2000. Then, 13 states had voter identification requirements—by 2020, that number has nearly tripled.

NCSL categorizes voter identification requirements vary by type—photo and non-photo—and options for alternatives—strict and non-strict. When states first establish voter identification requirements, they often do so with a non-photo, non-strict law, though there is a trend of states strengthening those laws once they have them in place. Of the 21 states that started with non-photo, non-strict requirements, eight have strengthened their laws. That number used to be nine, but in 2020 Virginia returned to a non-photo, non-strict requirement and became one of just a few states that have eased their identification requirements. Through the last decade, courts have also stayed busy parsing whether voter identification laws do or do not create an undue burden on voters.

For more information, see NCSL’s Voter Identification Requirements webpage.

Election Day (or Same-Day) Voter Registration

2000: 6 states. (Idaho, Maine, Minnesota, New Hampshire, Wisconsin and Wyoming.)

2020: 21 states (California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Mexico, North Carolina, Utah, Vermont, Washington, Wisconsin and Wyoming.)

In 2000, six states allowed any qualified individual to both register to vote and cast a ballot on the same day, which may be Election Day or a different day during the early voting period. Maine, Minnesota and Wisconsin were the first states to allow this practice, doing so in the 1970s. More states established same-day voter registration in the 1990s and 2000s (the 1993 National Voter Registration Act required states to offer voter registration at DMVs, unless the state had same-day registration), but it wasn’t until the 2010s when the number shot up to nearly half of all states. Nevada and New Mexico are the most recent additions to this group—both enacted same-day voter registration in 2019, though the Land of Enchantment plans to implement the policy in stages over several years.

For more information, see NCSL’s Same-Day Voter Registration webpage.

Online Voter Registration

2000: No states.

2020: 40 states. (Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia and Wisconsin.)

Online voter registration didn’t exist in 2000, and the first state to implement a paperless voter registration option—Arizona—did so in 2002. Washington followed in 2008. Since then, online voter registration has essentially swept the nation, going from zero states to 40 in under two decades—in fact, most of the implementation has happened in just the past decade.

Most states have enacted specific legislation to authorize online voter registration, and New Jersey did so most recently in January 2020. Some states, however, have created online voter registration systems under existing authority, as North Carolina did in 2020. Some states may opt to pass legislation after the fact that specifically authorizes the system, as Minnesota did in 2014.

For more information, see NCSL’s Online Voter Registration webpage.

Membership in the Electronic Registration Information Center (ERIC)

2000: No states—ERIC was not yet established.

2020: 30 states. (Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Vermont, Virginia, Washington, West Virginia and Wisconsin.)

ERIC was founded in 2012 by seven states—Colorado, Delaware, Maryland, Nevada, Utah, Virginia and Washington—with the goal of modernizing voter registration records. This compact between states helps states improve the accuracy of their voter rolls by matching records against those of other states and expand access to voter registration for all eligible citizens.

Texas was the most recent state to join; it did so in March 2020.

For more information, see NCSL’s Voter List Accuracy webpage and the official ERIC website.

Risk-Limiting Audits

2000: No states.

2020: Required in three states. (Colorado, Rhode Island and Virginia)

While 38 states and Washington, D.C. ask for postelection audits of some kind to test that vote tabulations are correct, a risk-limiting audit (RLA) is a new option that has received growing interest from election officials and legislators over the past few years. An RLA is an incremental audit system designed to limit the risk that a contest is certified with the wrong winner. The larger the margin of victory, the fewer ballots need to be reviewed—and vice versa.

Colorado was the first state to establish RLAs in statute in 2009; it took until 2017 to work out the kinks and run its first RLA. Rhode Island and Virginia followed in 2017. Several states are testing the RLA waters now: Georgia, Indiana and Nevada have statutory pilot programs—though Nevada’s will become required statewide in 2022. Michigan and New Jersey have administrative pilot programs, and four states—California, Ohio, Oregon and Washington—make RLAs optional.

What Does the Future Hold?

There’s no doubt that these shifts in election policies were enacted to help voters and increase election efficiency, accuracy and security. It’s also true that many changes have been adopted with bipartisan support. Yet many believe that political parties push for the policies that conventional wisdom says help them and hinder their opponents.

Ginsberg, however, asked us to reconsider that logic. In light of the 2020 election, he stresses that “Republicans should take away that they actually can do well in high turnout elections. And Democrats should realize that they won states—at least on the presidential level—with some of the strictest voter ID laws… There should be a reevaluation by both parties and people looking at election laws to see how some of the dogma of both parties was refuted in this election.”

Food for thought.

Legislative Action Bulletin

  • As of Feb. 1, 39 states are in regular session.
  • Wisconsin is in special session.
  • Colorado has postponed their session due to COVID-19.

As states begin their 2021 sessions, legislatures are still focused on elections, along with budgets and public health as the pandemic continues. So far, the most popular topic is absentee and mail voting. Please see our State Elections Legislation Database for all elections-related bills dating back to 2011.

Absentee and Mail Voting Introductions:

Arizona HB 2369 would require absentee voters to have their ballot envelope signatures notarized.

California AB 37 and Maryland HB 153 would permanently adopt the vote-by-mail system used in the 2020 elections for all future elections.

Connecticut SB 5 would allow voters to request absentee ballots through an online portal.

Delaware HB 75 would provide the final approval to enact a constitutional amendment allowing no-excuse absentee voting. Delaware’s state constitution is unique in that it allows the legislature to pass amendments without a vote of the people, though the legislature must approve the amendment twice.

Maine HP 104 would create a permanent absentee voter list.

New Hampshire HB 61 would allow no-excuse absentee voting and the processing of absentee ballots prior to Election Day.

New Jersey AB 5171 would allow voters to cure their mail-in ballots when there is a missing or unsealed inner envelope.

Pennsylvania HB 25 would repeal the state’s no-excuse absentee voting system.

Virginia HB 1888 would make numerous changes, including allowing ballot drop boxes, improving absentee ballot processing and requiring additional assistance for disabled voters who use absentee ballots.

Other Election Introductions:

Connecticut HB 5009 would allow individuals confined in correctional institutions to retain voting rights.

Delaware HB 25 and New York AB 502 would implement same-day voter registration.

Georgia HB 62 would prohibit election officials from accepting or expending private funds.

Indiana HB 1290 would establish a bipartisan “Commission on Election Integrity.”

MN HB 9 proposes many changes, including implementing automatic voter registration, allowing 16-year-olds to preregister to vote and requiring ballot drop boxes. Also, Minnesota HB 89 would implement ranked-choice voting for all elections in the state.

Missouri SB 154 would change the state to a closed primary system.

Mississippi SB 2015 would allow first-time voters to register online.

Nebraska LB 76 would change the state’s current system of allocating electoral votes to a winner-take-all system.

From the Chair

This month we spoke with Virginia Senator R. Creigh Deeds (D). He has represented District 25, which includes Charlottesville, since 2001 and previously served in the House of Delegates from 1992 to 2001.

Why were you chosen to chair the Senate Committee on Privileges and Elections?

Chairmanship is mostly determined by seniority, and I’ve been on this committee since 2002. After the Democrats took the General Assembly back in the 2019 elections, I became the chair.

As a side note, this committee has an interesting history—it dates back to the House of Burgesses, and George Washington served on it.

Virginia passed a number of election changes in 2020 (more than any other state), including no-excuse absentee voting and same-day voter registration. Could you talk about why those changes were so important?

We’ve worked on these topics for years, all with the goal of getting more people to vote.

Driving up turnout was the number one thing on my agenda. If I could go back and write the rules, I wouldn’t worry about a 7 o’clock closing at the polls. Instead, I think people need to be allowed to vote when they can. A single Election Day doesn’t reflect the reality that a number of people in Virginia work in Washington, D.C., and can’t get home to the polls in time. That’s what no-excuse absentee voting is about. It’s the most important legislation we passed last year.

I’ve introduced legislation on same-day voter registration a number of times, as well. If conservative states like Utah can do it, we can too. Anybody who can legally participate in the election should be able to do so as easily as possible. [Note: Virginia’s same-day registration will go into effect on Oct. 1, 2022].

What are your top election priorities going in to 2021?

We passed a lot of legislation last year that recognized the pandemic situation and established temporary solutions, like allowing ballot drop boxes. I want to make that permanent. We also allowed voters to correct minor errors on their absentee ballots—I want to make that a permanent ballot cure process.

I also want to create more public trust in the election process. Because we had no-excuse absentee voting for the first time, we had a huge number of people vote absentee. That caused some problems with reporting: 61% of the people who voted on Election Day voted for President Trump, while 64% of the people who voted before Election Day voted for President-elect Biden. Because some localities didn’t process absentee ballots until after the polls closed and those results came in later, there were large swings in the results and that feeds the rhetoric that something is amiss.

In Virginia, some localities process absentee ballots early, some later—it’s up to the local governments. I have a bill that will require localities to all process absentee ballots earlier. There are a lot of people—good people—who think the election was stolen, and it wasn’t. Earlier processing will go a long way to restoring that public trust.

What aspect of Virginia’s election process makes you proudest?

This past year, what made me the proudest was record turnout. We had the best turnout in a hundred years. And back then the electorate was much smaller, and a lot of people were not included. The Virginia I was born into had 3.1 million people; the population is close to 8.2 million now, and it’s much more diverse.

Our democratic republic works better when more people participate. Whether they agree with me or not, I want more people to participate. And I want to build on that turnout and keep people engaged. We have elections every year. Turnout is always highest in the presidential election year, but in 2021 we’ll elect a governor and state legislators—it’s an important election.

This interview has been edited for length and clarity.

What Election Changes Would H.R. 1 Make?

The U.S. House of Representatives reintroduced H.R. 1, the “For the People Act,” in January 2021. H.R. 1 passed the House in 2019 but did not move in the Senate. The bill is a comprehensive look at election access, integrity and security as well as campaign finance and ethics issues. Most of the 791-page bill is devoted to election administration and security and, if it were to become law, would preempt states in specific areas such as online voter registration, automatic voter registration, same-day or Election Day registration, early voting and preregistration of teens.

H.R. 1 would prohibit voter intimidation and voter caging—the practice of sending mailers to voters and using any undeliverable mail to challenge voters’ registrations—and establishes criteria for states to follow when removing records from its voter registration list. H.R. 1 also would prohibit states from imposing restrictions on mail and curbside voting, require states to use durable voter-verified paper ballots and require reinstatement of voting rights to the formerly incarcerated. If enacted, the bill would permit individuals to bring private rights of action in federal court for alleged violations of any of its provisions. While the bill contains authorized funding to states to assist with voter registration mandates, poll worker training and election security issues, there is no guarantee the funding will be appropriated.

Questions? Contact Susan Frederick,

Worth Noting

New NCSL Report on Primaries

A new NCSL report on primaries provides a 50-state overview of primary types and addresses who can participate in them, who runs them, the relationship between primary type and ranked-choice voting, and much more.

Lawmakers Call for Election Integrity

Legislators in at least five states—Michigan, Missouri, Oklahoma, Pennsylvania and Wisconsin—have passed a number of resolutions on election integrity. Some have called for audits and recounts, while others have disputed the November election results. For more explicit action on this issue, see NCSL’s legislative action bulletin.

New Mexico to Consider Fusion Voting

Lawmakers in New Mexico will consider a bill to establish fusion voting, a system that permits an individual to be the candidate for more than one political party and allows a candidate to decline a minor party’s endorsement. Once widespread in the U.S., fusion voting is now only allowed in a handful of states, including New York.

Monthly Dose of Cybersecurity

WASHINGTON — William Evanina, who raised concerns about foreign election interference, stepped down from his position as director of the National Counterintelligence and Security Center.

SACRAMENTO, Calif. — A new report from Votebeat reviews how California’s Office of Election Cybersecurity fought cyberattacks designed to undermine the state’s elections.

All-Mail Primary Likely in New Jersey

Due to the pandemic, New Jersey Governor Phil Murphy seems like to order another all-mail primary for the Garden State’s June 8 primary. February fire district and March special school elections have already been delayed until April.

Federal Efforts to Fight Disinformation

U.S. representatives reintroduced bipartisan legislation aimed at limiting the spread of foreign disinformation on social media. The Foreign Agent Disclaimer Enhancement (FADE) Act would require disclaimers on political social media content if it’s funded by a foreign agent and would compel the Department of Justice to make social media platforms remove the content if the disclaimer is not included. Freedom of speech concerns may prompt a backlash to this proposal.

Vote, Then Get Vaccinated

In Massachusetts, the spring COVID-19 vaccination rollout will align with many upcoming municipal elections. To take advantage of this shared timing, the Massachusetts secretary of state has suggested a pilot program that would locate vaccine sites near polling places so certain defined populations—such as people over 75—could vote and get vaccinated in just one trip.

From the NCSL Elections Team

With most legislative sessions in full swing, the elections team has been busy with research requests and other efforts to help NCSL members navigate the wild world of election administration.

New legislators and staff, in particular, may be interested in NCSL's State Policy 101 series, which is designed to help those new to the legislature build foundational policy knowledge. The elections team will host three sessions (plus one on redistricting): 

  • “Redistricting: Nuts, Bolts and Policymaking,” Friday, Feb. 5, 2-3:15 p.m. ET.
  • “How We Vote: In-Person and Absentee/Mail Options,” Friday, Feb. 12, 12:30-1:45 p.m. ET.
  • “Getting Ahead of Cybercriminals,” Friday, Feb. 19, 3:30-4:45 p.m. ET.
  • “Knowing—and Showing—an Election Was Accurate,” Friday, Feb. 26, 2-3:15 p.m. ET.

Do you have a question, a concern, or a neat election story? We’d love to hear it.

—Wendy Underhill, Brian Hinkle and Mandy Zoch

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