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The Canvass | March 2021

March 1, 2021

Primary Changes: The Hot Trend of 2021?

After the 2020 elections put a spotlight on the many different ways states run elections, 2021 is likely to be a big year for election legislation. While the media focuses on bills relating to absentee/mail voting, bill introductions are also coming fast and furious on a wide range of other topics. For instance, primaries.

NCSL released Primaries: More than One Way to Find a Party Nominee in January 2021. This report gives a snapshot of how states run their primaries now. Given the amount of legislation we see already this year, an update to the report will be needed before year’s end! (For those who prefer a chart, see our venerable State Primary Election Types for the current status.)

Whether you are for or against the changes proposed in the bills listed below, just know that on average one out of 10 election bills get enacted—and this year the odds may be even lower because there are more election bills in total, and states are busy with legislation on other topics, such as managing their pandemic responses and staying solvent.

Alternative voting systems

Arizona HB 2378 proposes to use ranked choice voting (RCV) for presidential preference primaries. With RCV, voters list their candidate in priority order. If their first-choice candidate is the lowest vote-getter, their ballot stays live with their second-choice candidate, until eventually one candidate has over 50% of the vote.

“Top two” (or more) systems

Missouri HB 885 and Mississippi HB 723 (failed) would shift their states to a top two primary system, where all candidates, regardless of party, run on the same primary ballot, with the top two vote-getters advancing to the general election. Nevada SB 121 would create one primary for all comers, referred to as a “modified blanket primary.”

Virginia HB 360 would switch primaries to a “voter nominated” primary process, where all candidates would run on the same primary ballot and the top four would go on to the general election. The general election would then be conducted with RCV among the four candidates. “Our current system only incentivizes candidates to listen to the base of both major parties," said sponsor Delegate Sam Rasoul (D). “This innovation will make it easier for the people—voters and elected officials alike—to come together across ideological lines.”

Changes to primary runoffs

Texas HB 117 would end the Lone Star State’s primary runoffs altogether and replace the system with preferential voting, a cousin to RCV. A separate Texas bill, HB 740, would allow anyone who is voting an absentee ballot to vote once and have it count for the primary and the primary runoff by way of a preferential ballot. A few other states that have primary runoffs are already providing their overseas and military voters with an “instant runoff” ballot.

Unaffiliated voters

With more and more Americans choosing to not affiliate with a political party, how those unaffiliated voters can participate in primaries have led to lively debates. Maine (SB 99 and HB 216), Arizona (HB 2736) and New Mexico (HB 79) all have bills to allow unaffiliated voters to participate in either major party’s primary. The details, of course, differ. While not quite the same, New Jersey SB 3018 would allow voters to switch party affiliation at the polling place.

Closed primaries

Missouri has three bills (HB 26HB 90SB 154) that would close its primaries, requiring voters to be affiliated with the party of their choice by the 23rd Tuesday prior to the election—basically six months ahead. South Carolina HB 3496 would also move from open primaries to closed primaries. Utah’s HB 197 would close the Bee Hive State’s primaries; at the moment, each party can make its own decision. "We don't want people to jump into the party and pick our representatives when they don't have any of those same fundamental beliefs as the members of the party," said bill sponsor Rep. Jordan Teuscher (R).

Moving primary dates

Delaware HB 30 would move its state primary date from September to the end of April, combining it with its presidential preference primary. New York SB 1819 would consolidate its presidential primary with its June primary. New Hampshire also might move away from a September state primary, aiming for August (HB 97) or June (HB 98). Missouri HB 680 would end presidential primaries altogether.

Reducing the required time between registration and the primary

New Jersey SB 323 and AB 2034 would move the deadline for registering with a party from 55 days to 21 days before the primary election. New York AB 792 and AB 842 would allow registering to vote and changing party enrollment within 10 days of the next primary election to be able to vote in it. New York AB 908 would require notice to voters that the primary system is closed.

Louisiana is taking an approach all its own. At the end of 2020, Senate leadership established a task force to address its unusual system: On what most of the nation thinks of as Election Day—the first Tuesday after the first Monday in November—Louisiana actually holds an all-comers primary. The top two candidates advance to the general election, held four weeks later. Whether Louisianans will decide they like their one-of-a-kind status, or want to change it for another option, remains to be seen—as does the fate of all this year’s primary bills.

Recent History

Looking back over the last five years, all changes in primary types have related to unaffiliated voters, and, as could be expected, not all states headed in the same direction.

  • In 2016, Colorado voters agreed to Proposition 108, so now unaffiliated Colorado voters can participate in either major party’s primary—but not in both—and still remain unaffiliated.
  • Also in 2016, Utah HB 48 removed the requirement that a party permit unaffiliated voters to participate in a primary, thus allowing the parties to choose between open or closed.
  • In 2019, Rhode Island SB 589 removed the requirement that the act of voting in a party’s primary affiliates the voter with that party; in other words, a voter can participate in a party primary and continue to be unaffiliated.
  • In 2020, Alaskans said yes to Ballot Measure 2, which called for a “top four” primary, where all voters, regardless of affiliation, can vote in one primary, and the top four vote-getters go on to the general election (which will be held by ranked choice voting).

Last year saw many changes to how states conduct presidential preference primaries. Will 2021 be the year for state primary changes? We’ll have to wait to see how these bills fare during session, but primarily what we’ve learned is that primaries are on the minds of legislators all across the country.

Legislative Action Bulletin

  • As of Feb. 24, 39 states are in regular session.
  • The Pennsylvania Senate and Texas House are also in session.
  • Virginia and Wisconsin are in special session.

With 2021’s legislative sessions in full swing, legislators continue to focus on election issues. While many bills address absentee and mail voting, lawmakers have other policy options on their minds as well. Two notable issues are emergency powers over elections and ranked choice voting. Please see our Election Legislation Database for more information.

Emergency Election Powers

After the flurry of executive orders in 2020 that changed how states ran elections, the current legislative sessions have seen more bills than ever on who has the authority to change elections procedures in an emergency. Read more about current election emergency laws, or check out our new interactive Story Map.

Kentucky enacted SB 1, overriding the governor’s veto. The law limits the governor’s ability to issue executive orders during a state of emergency to within 30 days of the declaration unless that deadline is extended by the General Assembly. The new law also requires the attorney general’s permission to suspend a statute under an emergency declaration.

Alabama HB 351 would prohibit the governor from suspending any election law during the six months preceding an election.

Arkansas SB 141 would transfer the governor’s emergency powers to the secretary of state.

Connecticut HB 5540 would limit the secretary of state’s authority over elections.

Kansas HB 2183 would remove any authority from the governor or state judiciary to alter election laws and require approval from the legislature for any legal agreements entered into by the secretary of state.

Montana HB 429 requires the governor to obtain approval from the legislature before issuing executive orders relating to elections.

North Dakota HB 1198 would prohibit the governor from issuing executive orders that relate to the minimum number of polling places.

Oklahoma SB 523 would prohibit any state official from entering into a legal settlement that changes election procedures prescribed by the legislature.

Ranked Choice Voting

Ranked choice voting, where voters rank all the candidates for a given office by their preference, is an alternative voting method that has received increasing attention at all election levels. 

Arizona HB 2378 would implement ranked choice voting for presidential primaries.

Colorado HB 1071 would allow ranked choice voting for nonpartisan municipal elections.

Georgia HB 59 would allow military and overseas voters to use ranked choice voting for runoff elections.

Hawaii SB 169 would establish ranked choice voting for special elections.

Minnesota HB 89 would implement ranked choice voting for state and federal elections.

Nebraska LB 125 would enact ranked choice voting for state and federal elections.

New York SB 491 would permit ranked choice voting for local elections.

South Dakota SB 91 would allow ranked choice voting for local elections.

Vermont SB 50 would implement ranked choice voting for congressional primaries and general elections.

How many states have bipartisan state electoral boards with equal representation of Democrats and Republicans?

Nine states—Hawaii, Illinois, Maryland, North Carolina, New York, Oklahoma, South Carolina, Virginia and Wisconsin—have a board or a commission that oversees elections. Appointments to these commissions are usually made by the governor and confirmed by the Senate. These boards are typically structured to be bipartisan, with a certain number of members from each of the major political parties. Of the nine states with election boards, just three—Illinois, New York and Wisconsin—require equal partisan representation of Democrats and Republicans.

For more information about the structure of election administration at the state and local levels, visit our webpage.

Worth Noting

EAC Updates Voluntary Voting System Guidelines

The Election Assistance Commission (EAC) unanimously approved new changes to the Voluntary Voting System Guidelines (VVSG), with the goal of improving cybersecurity, accessibility and usability requirements in voting systems. Although compliance with the VVSG is voluntary, at least 38 states use the guidelines in some way.

Google Offers Security Training

Google has expanded its collaboration with Defending Digital Campaigns, a nonprofit and nonpartisan organization, to provide nonpartisan virtual security training in all 50 states. Google also plans to establish an election security help desk and provide best practices on how to protect accounts and more. 

New Award to Combat Misinformation

The University of Washington’s Center for an Informed Public announced its new award program, the CIP Award for Excellence. This award will be given to an individual or organization that has made outstanding contributions or achievements in mitigating the challenges of misinformation and disinformation.

Monthly Dose of Cybersecurity

Denver, Colo.—NCSL hosted a State Policy 101 session, Getting Ahead of Cybercriminals, for legislators and legislative staff. The session focused on cybercriminals’ motivations, how to understand cybersecurity risks and how to prepare for and prevent them. 

Washington, D.C.—The Center for Democracy and Technology released a report outlining an agenda for U.S. election cybersecurity improvements. The report looks at the challenges of maintaining security in elections and how election officials and policymakers might best address them for 2021 and beyond.

Cambridge, Mass.—The Belfer Center’s bipartisan Defending Digital Democracy Project released Beyond 2020: Policy Recommendations for the Future of Election Security. This report reviews the challenges the election security ecosystem faced in 2020 due to the COVID-19 pandemic and other threats and also makes recommendations for how those challenges can be addressed by state and federal policymakers. 

New Report on Satisfaction with Mail Voting

The National Vote at Home Institute (NVAHI) released a report examining voters’ satisfaction with and confidence in voting by mail. In 2020, the number of votes cast by mail grew by over 80% from 2018, and, according to NVAHI, most voters who chose to vote by mail reported satisfaction with the process.

Accessibility for Voters with Disabilities

After the 2020 election, the Election Assistance Commission (EAC) conducted a study on accessibility for voters with disabilities and focused on advancements and obstacles to polling place access, mail and absentee voting accessibility, civic participation and more. The survey’s findings have been released here.

Wisconsin Elections Commission Releases Findings

The Wisconsin Elections Commission released its 2020 Post-Election Voting Equipment Audit Final Report. In an election where nearly 3.3 million people voted in the Badger State, the commission found no evidence that any voting equipment used in the 2020 election changed votes from one candidate to another, incorrectly tabulated votes or altered vote totals in any way. If your state has a similar report, we’d love to see it.

NCSL Podcast on History of Legislatures

NCSL’s six-part series Building Democracy: The Story of Legislatures podcast covers the history, characters and stories of state legislatures in America, from the beginnings in Jamestown, to the present day and into the future. The first episode, Virginia: America's First Startup, tells how British settlers persevered through disease, infighting, famine and sweltering heat to establish a governing body—check it out for some exciting historical information, including a discussion of early voting rights!

From the NCSL Elections Team

With legislative sessions in full swing, our team has been busy answering research requests, presenting at NCSL’s State Policy 101 series, and offering virtual testimony on all things elections (and census and redistricting).

Are you working on election legislation and need additional information? We can help by providing further resources, 50-state surveys and more. 

—Wendy Underhill, Brian Hinkle, Christi Zamarripa and Mandy Zoch

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