2020 Legislative Action on Elections
In 2020, election administration made headlines (and, for some, headaches), as issues once limited to election insiders became the subject of mainstream debate.
Yet election-related enactments were down this past year, largely due to the COVID-19 pandemic’s effect on legislative sessions and priorities. In 2020, lawmakers in 43 states and Washington, D.C., Guam and Puerto Rico passed 223 bills—fewer than two-thirds as many enactments as 2019 (when 46 states passed 367 measures) and 2018 (when 46 states passed 336). In fact, 2020 had the fewest total election enactments since 2010.
The pandemic disrupted legislative sessions, but it also brought new legislative attention to voting options, and absentee/mail voting was far and away the most popular topic—24 states and D.C. passed 52 bills on the subject. Voter registration—last year’s hot topic—remained a top legislative concern, alongside enactments on candidates, election officials, postelection processes and emergency powers.
We’ve summarized the year’s legislative trends below, and for complete details on these enactments and many others, visit NCSL’s state election legislation database.
Absentee and Mail Voting
Most enactments on absentee and mail voting were temporary changes prompted by the pandemic and aimed at helping voters cast ballots during new, challenging circumstances. While many of these changes came from executive branches (not covered in this article), legislatures also sprang into action.
California, D.C. and Nevada enacted universal mail voting for the 2020 general election only. Nine states—Connecticut, Delaware, Massachusetts, Mississippi, Missouri, New Hampshire, New York, Oklahoma and South Carolina—temporarily expanded eligibility requirements for absentee voting due to COVID-19.
Some states made short-term changes to the absentee ballot application process. Delaware, Illinois and Massachusetts mailed absentee ballot applications to all registered voters for the November election. Illinois allowed absentee ballots to be requested online, and North Carolina approved the submission of absentee ballot applications via email or fax.
To accommodate more mail ballots, Connecticut allowed absentee ballot processing to begin 14 days prior to the election, rather than seven days. The Constitution State also allowed ballot drop boxes for 2020.
Will any of these temporary changes become permanent? Or will states return to pre-pandemic policies? It’s hard to say, but we expect absentee and mail voting to remain a hot topic in 2021.
Of course, lawmakers in a few states enacted more lasting changes to absentee and mail voting policies. Louisiana added new eligibility requirements for witnessing an absentee ballot and restricted the addresses to which ballots can be sent, while Virginia instituted no-excuse absentee voting, a bill that was well on its way before COVID-19 and brings Old Dominion into the company of 33 other states and D.C.
Oklahoma and Utah placed restrictions on who can return absentee ballots for a voter, pejoratively known as “ballot harvesting.” Maryland enacted prepaid postage for mail ballots, Michigan authorized some city or township clerks to begin opening absentee ballots one day earlier, Mississippi allowed ballots postmarked to be accepted after Election Day, and New Jersey established a ballot cure process.
Eight states passed 18 bills related to voter registration, and New York made late-breaking news by enacting automatic voter registration. Virginia also passed automatic voter registration earlier in the year.
Most other enactments made smaller changes to the state’s existing policies, and several focused on voter registration outreach. For example, D.C. will require its Board of Elections to create voter registration resources for new homeowners and tenants and require public housing authorities to provide those resources to new tenants. And Virginia will require high schools to provide students with registration information and opportunities to register to vote.
California allowed voters to change their registration address or party affiliation up until the close of the polls on Election Day. Kentucky allowed voters to cast provisional ballots if they cannot provide proof of identification. In West Virginia, counties will now be permitted to store voter registration records in a digital format, and Wyoming will allow tribal identification cards to be used for voter registration.
Twenty enactments in 12 states addressed candidates for elected office. A handful of these made temporary changes to candidacy procedures due to the pandemic: Alabama and New York extended candidate qualification and filing deadlines, and New Jersey temporarily allowed electronic signatures on candidate petitions.
Changes unrelated to COVID-19 include alterations to candidate filing requirements in Louisiana and Virginia. Louisiana will require candidates to submit valid forms of identification, and in Virginia, candidates must submit a statement of economic interests.
Election officials were the subject of 17 enactments in six states. Virginia made several notable changes to its State Board of Elections—including increasing the size of the board and requiring it to identify, assess and address threats to election integrity.
Louisiana prevented the disclosure of poll workers’ addresses and telephone numbers, and Mississippi authorized a per diem compensation for election officials working during special elections.
Nine states passed 10 bills on postelection processes, which includes ballot counting, canvassing and certification.
California extended its county risk limiting audit program through 2023. Idaho strengthened its laws related to ballot custody, and Utah enacted multiple new provisions to ballot custody, voter intent and other postelection processes. Virginia established new procedures for election recounts.
Not surprising in a year with a pandemic, ten enactments in nine states were related to emergencies. Some states expanded emergency powers for local entities. Louisiana gave parish boards of election new election emergency powers related to absentee and mail voting; New Mexico did the same for counties. Massachusetts gave municipalities the authorities to postpone elections in the event of an emergency.
As executive branches took action on elections during the pandemic, some states sought to clarify who ultimately has policymaking power. To that end, Iowa and Ohio restricted the emergency powers of state election commissioners and state executives, while Vermont authorized the secretary of state—in consultation with the governor—to order appropriate election procedures for 2020.
Three states—Indiana, Louisiana and Washington—enacted four laws on cybersecurity. Indiana now requires each county to use a cybersecurity company designated by the secretary of state to investigate cybersecurity attacks, protect against malicious software and analyze information technology security risks.
Louisiana required the secretary of state to establish cybersecurity training for people with access to the state’s voter registration computer system and prohibited election officials from disclosing various types of computer system information, including internet protocol (IP) addresses. Washington enacted new policies to address security breaches of election systems by foreign actors.
Legislatively Referred Ballot Measures
Voters passed a handful of legislatively referred ballot measures related to elections. Two of these addressed who can vote: Californians passed a measure restoring the right to vote to people on parole, and Alabama voters approved an amendment changing language in the constitution from “every citizen” can vote to “only a citizen” can vote. (Colorado and Florida passed similar measures, though those were initiative by citizens, not the legislature.)
In Nevada, voters approved a measure establishing constitutional rights to certain voting procedures, including a right to vote without intimidation or threats, a right to return a spoiled ballot and receive a replacement, and a right to receive instructions on how to use voting equipment.
And Mississippi made a sweeping electoral change when voters passed a constitutional amendment removing the requirement that a candidate for governor or state office receive the highest number of votes in a majority of the state's 122 House districts. If a candidate does not receive a majority vote of the people, they will proceed to a runoff election, instead of being chosen by a vote of the House of Representatives.
California will require its secretary of state to establish a Native American Voting Accessibility Advisory Committee.
D.C. joined Maine and Vermont in allowing convicted felons to vote while incarcerated and also passed legislation requiring polling places for incarcerated voters.
Illinois and Virginia made Election Day a holiday, and Tennessee did the same for Women’s Suffrage Day, Aug. 26.
Maine implemented ranked-choice voting for presidential elections—it’s the first state to do so, although this alternative voting system has been in place for primaries and federal congressional elections since 2018. Virginia also permitted local governments to use ranked-choice voting.
Utah repealed straight ticket voting.
Virginia created an Election Day page program, which allows high school students to serve as election workers.
Our team anticipates continued interest in election administration, especially absentee and mail voting, when legislatures convene in 2021, but we also know—now more than ever—that predicting legislative trends is nearly impossible. We’ll do our best to track the action, and we are here for you—our members—whenever you need us.
From the Chair
This month we spoke with South Dakota Representative Herman Otten (R). He has represented District 6, a mixed rural and urban district in eastern South Dakota, since 2013. In 2020, he was elected to the state senate and will assume office later this month.
Why do you think you were selected to chair the House Committee on Local Government?
Our leaders try to pair legislators and committees based on experience, and I have a background in local government. Before being elected to the legislature, I served as mayor in one of the communities in my district for four years, and later I served on city council for nine additional years.
The November general election received lots of press from the election administration perspective. How did it go in South Dakota?
Our secretary of state’s office and current secretary of state did a great job being prepared for the election. COVID-19 certainly presented challenges to voting here and throughout the U.S. In South Dakota our county auditors are responsible for finding poll workers and making sure they were as safe as possible. South Dakota doesn’t have a mask mandate, but we encourage people to be smart and to protect themselves and others when they’re out and about.
South Dakota had tremendous voter turnout, so obviously people were not afraid to go out and vote. We also have the option to cast absentee ballots, and we had record turnout on those, as well.
Was there anything from South Dakota’s primary or general election experiences this year that will inspire legislation next year? In other words, what are your election priorities for the 2021 session?
I personally don’t see a glaring mistake that needs to be corrected through legislation right now. Of course, our secretary of state and our State Board of Elections will review the election process and see if there is a need to make any adjustments to the process.
The main thing I’d like to see happen doesn’t require legislation, and that’s making sure county auditors—who run elections—have the available funding and staffing to conduct the elections. The pandemic made it difficult for county auditors because a lot of poll workers were older individuals, and because of COVID-19 they chose not to work at the polls this year. To get more workers, we need to fairly compensate people, but that’s not something legislation is going to fix. In South Dakota those things happen at the local level; we put our trust in the county commissioners and our county auditors to budget an amount to fairly compensate poll workers.
South Dakota voters passed some significant citizen initiatives this year. Can you tell us a little about that process?
It’s important for citizens to have their voice, even if the things that get passed cause challenges. Like adding marijuana to our constitution—the constitution is just not a good place to have it because the legislature can’t make changes to the law without handing it back to the voters at the next election cycle. So it may take two years to make a change. That happened a couple of years ago with Marsy’s Law, the crime victim’s bill of rights. Constitutional initiatives can make it tough for the legislature to take corrective actions, but I’d still never oppose the ability of citizens to make their own laws. Also, the constitutional amendment legalizing recreational marijuana is currently being taken to court as being unconstitutional.
What aspect of South Dakota’s elections makes you the most proud?
Here in South Dakota it is quite easy for any individual to get out and cast their vote. There may be some challenges due to the rural nature of the state—people may need to put in a few miles to get to their polling place—but South Dakota wants people to vote and have their voices heard.
This interview has been edited for length and clarity.
How We Voted in 2020
Despite a challenging year for election administrators, most voters had positive experiences, according to a new report from Charles Stewart III at the MIT Election Data and Science Lab. Using data collected in the 2020 Survey of the Performance of American Elections, the report examines how Americans voted this year, including what methods voters used to cast their ballots (in-person or by mail), how confident they feel about the election results and their overall voter experience.
For example, 99% of respondents said they had no problems receiving or marking their absentee ballots, and 97% of Election Day voters had no issues with the voting equipment. As we look ahead to a new year and new elections legislation, this report will be a valuable resource for legislators and election officials alike.
Improving Voter Confidence in Our Elections
The Center for Tech and Civic Life published a list of 30 things election officials can do to increase voter trust and confidence in elections, but policymakers may benefit from the list too. The suggestions range from updating voting machines and using postelection audits to creating informational videos and combatting misinformation on social media.
Antrim County, Mich. Recount Confirms Results
A hand tally of the presidential race votes in Antrim County confirmed the original, machine-tabulated results. The audit found a net gain of 12 votes for President Trump, a 0.07% shift which Lori Bourbonais of Michigan’s Department of State called typical: "It is normal to find one or two votes in a precinct that differ between a hand tally and machine count."
Your Monthly Dose of Cybersecurity
Los Angeles—Want to keep up with election cybersecurity news? The University of Southern California’s Election Cybersecurity Initiative compiles a daily round-up of articles related to election cybersecurity. They publish weekly newsletters, too, and you can subscribe here.
Washington, D.C.—Congress eliminated funding for state and local governments, including $500 million in election security grants, from a bill to fund the U.S. government. In past years, the funding has helped states update voting systems, train election officials and secure each step of the voting process from cyberattacks.
New Report from the OSET Institute
The Open Source Election Technology (OSET) Institute published a report, Elections 2030: A Nonpartisan Blueprint for Effective U.S. Election Administration. Aimed at policymakers, election officials, and anyone interested in bolstering public confidence in elections, the report examines how the 2020 election tested the limits of our election infrastructure and offers recommendations for improving it by 2030.
Criminalizing Threats Against Election Officials
Proposed legislation in the U.S. House of Representatives would expand penalties against those who threaten election officials and poll workers. The bill would expand a current federal law protecting voters to include election officials.
New Georgia Voters
Approximately 76,000 new voters registered in Georgia between the state’s Oct. 5 deadline to vote in the November general election and the Dec. 7 deadline to vote in the upcoming U.S. Senate runoffs in January. According to the Atlanta Journal-Constitution, over half of these new voters are under 35.
Redistricting Is Right Around the Corner
It’s almost time to redraw districts—and it’s definitely time to plan for it. When it comes to redistricting, the learning curve is steep. Let NCSL help you and your team prepare for this complex, once-a-decade task. Due to the COVID-19 pandemic, we have revised our seminar schedule and will hold a virtual seminar on Jan. 6-8, 2021.
In Case You Missed It: How 2020 May Guide the Future of Elections
NCSL co-hosted a webinar with the University of Minnesota’s Humphrey School of Public Affairs on lessons learned from the 2020 elections. New Mexico Senator Daniel Ivey-Soto (D), Indiana Senator Greg Walker (R), Mark Goins, Keesha Gaskins-Nathan and Tammy Patrick join us as faculty.
Sports Figures Who Championed Voting
USA Today named 20 sports figures who made the world a better place in 2020, among them were Lebron James, Patrick Mahomes, Megan Rapinoe and the WNBA—who all championed getting out the vote this November.
From the NCSL Elections Team
Happy New Year! Our team is refreshed from the holidays and more prepared than ever to be your resource during the upcoming legislative sessions and beyond. We’re ready to answer your research requests, provide training and connect you with other election experts.
—Wendy Underhill, Brian Hinkle and Mandy Zoch