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The Canvass | May 2021

May 1, 2021

The Battle Over Election Emergency Powers: Legislative vs. Executive Branches

The COVID-19 pandemic initiated one emergency after another—from public health and unemployment crises to election ones. States leapt into action, but tensions emerged between the governors issuing emergency declarations and legislatures who set policy.  

In particular, the pandemic forced policymakers to reckon with the fact that not all emergencies can be bound within tidy limits of days or weeks. Unlike an earthquake or hurricane, a pandemic—as we’ve learned—can persist for over a year. In some states, the executive powers of governors, secretaries of state and health departments continued alongside the lingering pandemic, raising questions about who ultimately has the power to legislate.

Consequently, 2021 has been a high-water year for legislation on emergency powers. Legislative chambers in at least 45 states, Guam and Puerto Rico have introduced over 300 bills or resolutions this year relating to legislative oversight of executive actions during the COVID-19 pandemic or other emergencies. While many of those bills may implicitly alter emergency powers over elections, 20 bills in 14 states explicitly concern or affect elections.

This month, we take a closer look at those efforts to limit (or, in a few cases, expand) executive powers over elections during an emergency. For more information about legislative oversight of executive orders, visit NCSL’s comprehensive webpage. For details on legislation relating to elections, in particular, visit NCSL’s state election legislation database and use the tag “emergencies.”

Limiting Executive Powers

Of the 20 bills that most directly address emergency powers over elections, 18 would limit executive power. Overwhelming, these bills have been introduced in Republican-led states, with both Republican legislative majorities and Republican governors. In other words, the battle takes place between legislative and executive branches more so than between parties (though political divides may exacerbate tensions). Although most of these bills are pending, two in North Dakota have failed, and two (one in Ohio and one in Kentucky) have passed.

In Ohio, the legislature overrode the governor’s veto of a measure that limits the duration of a state of emergency to 90 days unless extended by the General Assembly and that allows lawmakers to terminate a state of emergency declared by the governor after 30 days. The legislation also permits the General Assembly to rescind orders and rules issued in response to an emergency. Ohio Senator Rob McColley (R), one of the bill’s primary sponsors, stressed that the legislation would “restore reasonable checks and balances.” He added, “There is a lot of talk … that we are somehow preventing the governor or the health department from taking action. Every single check and balance that would take effect would happen after the fact. There is nothing in here that is somehow paralyzing the executive branch from acting swiftly.”

Unlike Ohio, where the legislature and governor’s seat are held by the same party, Kentucky’s state control is split between a Republican legislature and Democratic governor, and those political differences heightened the tension between the branches. “Governor [Andy] Beshear chose to legislate unilaterally,” remarked Kentucky Senator Matt Castlen (R), adding that “after hearing concerns from constituents across the Commonwealth, the legislature chose to modify these powers and provide our deliberative and representative branch of state government with necessary participation in the process.” The bill, which like Ohio’s passed after the legislature overrode the governor’s veto, limits the governor’s emergency orders to 30 days unless extended by the legislature and grants legislative committees more oversight of the governor’s emergency administrative regulations. The bill also removes the governor’s power to make changes to the way elections are held. Unsurprisingly, the legislation is now the subject of a lawsuit brought by Beshear, though the legislature itself did enact bipartisan election changes.

Both enactments make broad changes to emergency powers, including those affecting elections. In other states, bills related specifically to emergency powers over elections remain pending.

At least four states—ArkansasMontanaNorth Dakota and Texas—would prohibit the use of executive emergency powers from altering the conduct of elections (North Dakota’s bill failed). Legislation in Alabama would prohibit the governor from suspending any election law in the six months preceding an election, with certain exceptions for changing primary or runoff election dates.

Three states—ConnecticutGeorgia and Iowa—would limit, but not entirely prohibit, executive action pertaining to elections. The Connecticut measure would also prevent the secretary of state from mailing absentee ballot applications to voters.

Several states seek to make changes specifically regarding polling places and the preservation of in-person voting options. Montana would prevent the governor from controlling access to polling locations without the consent of the legislature; New Jersey would preserve the ability to vote in person at voters’ designated polling places in the case of a declared emergency; and failed legislation in North Dakota would have precluded the governor from changing the required minimum number of polling places.

Lastly, a pending bill in Alabama would prohibit the secretary of state from waiving voter ID and notary requirements for absentee ballots.

Expanding Executive Powers

So far, only two states have introduced bills that would expand executive emergency powers over elections. New York would authorize the governor to delay or suspend an election and would also allow residents to vote by absentee ballot if their polling place is located in an affected area. Rather than expand gubernatorial powers, a bill in North Carolina would give more authority to the state’s chief election official to conduct elections when the normal schedule is disrupted by a pandemic or other national health crisis.

Rather than permanently expand executive powers, some states have opted to collaborate with the executive branch by extending executive declarations. In Connecticut, where the legislative and executive branches are both helmed by Democrats, the legislature voted to extend Governor Ned Lamont’s emergency powers for another 30 days. Senate President Martin Looney (D) said the vote “provid[es] a degree of acknowledgement of the correctness of the governor’s actions.”

What the Future Holds

“The COVID-19 pandemic has clearly intensified tensions between the executive and legislative branches,” observed Pam Greenberg, NCSL’s expert on legislative oversight.

Will those tensions settle now that the pandemic is receding? Or will they boil over with the next emergency, whatever or whenever that may be?

It’s hard to say, but one thing’s certain: States are learning from last year’s crisis. As Greenberg noted, “lawmakers are taking action this year to ensure their fundamental role in future emergencies,” and states are also adjusting their laws and institutional practices, ensuring they remain robust and nimble in the face of the unexpected.

Legislative Action Bulletin

  • As of May 1, 37 states are in regular session.
  • Maine and Wisconsin are in special session.

As of May 1, 29 states have enacted 104 bills. For comprehensive information on all election legislation, please visit our database. You can also check out our new elections enactments webpage, which will capture all the action throughout the year.

Recent Enactments

Arizona HB 2569 prohibits the receipt or expenditure of private funds for election-related purposes by any public body that conducts or administers elections.

Arkansas HB 1715 implements stricter limits on absentee ballot collection and prohibits election officials from distributing unsolicited absentee ballot applications, among other changes.

Indiana SB 398 allows voters with print disabilities to access voter registration and absentee ballot applications electronically and prohibits election offices from receiving funding from sources other than their own or from the state or federal government. Indiana also enacted HB 1479, which allows county election boards to authorize satellite offices for early voting and to allow a third Saturday for voting prior to Election Day.

Kentucky HB 574 establishes three days of early voting, allows for vote center polling places, creates an online absentee request portal and allows voters to cure absentee ballots. 

Maryland SB 683 creates a permanent absentee ballot list. A local board of elections must send an absentee ballot to each voter on the permanent absentee ballot list for each election. Among other provisions, the bill also requires that absentee ballot applications be sent to all eligible voters before a primary election and establishes provisions governing the designation of ballot drop box locations.

Montana HB 176 repeals same day registration and sets the late registration deadline at noon the day before Election Day. Montana also enacted SB 169, which defines the type of ID required to vote in Montana and to register to vote. Any voter who does not have one of several government-issued IDs, or a state concealed carry permit, can use two other forms of identification. If that’s not possible, a provisional ballot is used, and the voter has until the day after the election to provide the required ID.

New Mexico HB 231 enacts the Native American Polling Place Protection Act, which protects polling locations on Indian nation, tribal or pueblo land in the event of a declared emergency or the invocation of emergency powers, and changes notice provisions for requests for alternate voting locations.

North Dakota HB 1256 prohibits the use of nonpublic funds in election administration. North Dakota also enacted SB 2142 to allow preprocessing of absentee ballots to begin three days before Election Day.

Oklahoma SB 710 authorizes the state to join multistate voter registration list maintenance organizations, such as the Electronic Registration Information Center.

Virginia SB 1245 makes a number of changes, including requiring processing of absentee ballots returned before the day of an election and requiring the establishment of drop-off locations. The bill also requires a ballot marking tool with screen reader assistive technology to be made available for absentee voters with disabilities.

Washington HB 1078 restores voting rights to citizens on parole. Washington also enacted SB 5015 to establish that misrepresentation of an unofficial ballot collection site or device as an official ballot drop box is punishable as a gross misdemeanor.

Wyoming HB 75 implements a strict non-photo voter ID law. 

From the Chair

This month we spoke with Nevada Assemblywoman Brittney Miller (D), who has served in the Assembly since 2017. She represents District 5 in the western part of Las Vegas and which she describes as extremely economically and racially diverse.

What do you enjoy most about chairing the Legislative Operations and Elections Committee?

This is definitely a unique time to chair this committee. We just went through a spirited election where more people were involved, and voter turnout was incredible. But there have also been many theories about what did or didn’t happen during the election, but, for the most part, the committee hearings have been much smoother than I anticipated.

At my core I believe in everyone’s right—and need—to be heard. I came into this role with the belief that it’s not about hearing what I want to hear but giving the public an opportunity to be heard.

COVID-19 dramatically affected elections in 2020—how did Nevada adapt to that?

We had to ask, “how do we have a massive election when most people are at home?” We held a summer special session to deal with that and passed AB 4, which mailed ballots to all active registered voters. That was more convenient, especially for voters concerned about being in public due to COVID-19, and gave voters time to do their research. It also gave Nevadans a choice: mail in your ballot, drop it in a locked drop box or vote on a machine.

AB 4 was an emergency measure, so now we’re working on AB 321, which will make those changes permanent.

What are your election priorities for 2021?

Speaker (Jason) Frierson has been a tireless advocate for advancing voting access in Nevada, so that has been prioritized through his leadership.

We’re working to make voting more accessible for Nevadans on Indian reservations and colonies by ensuring we place ballot drop boxes there. AB 121 would give people with disabilities and active-duty military members the ability to vote through an electronic system. We’re working to provide people with disabilities with the adaptive technology they need to vote and to increase voting access to people who have committed felonies.

What most people are interested in, though, is AB 126, which would change our caucus to a presidential preference primary. This would make Nevada the first primary in the nation. I’m advocating for Nevada to be first because we truly look like the United States; we’re an extremely diverse and integrated state. Although we have a small population, we’re a sample of what the U.S. actually looks like.

What aspect of Nevada’s elections makes you proudest?

All of it. When I first moved here 13 years ago, I didn’t think it could get better than two weeks of early voting—but Nevada continues to make voting more and more accessible. We offer different ways for people to vote and that comes from the core fundamental belief that voting is a right.

We’re working to make right past practices that weren’t, and we believe that the democratic process is an inclusive process—that means not neglecting, overlooking or restricting certain groups of people based on how you think they may or may not vote. Voting is the most important civic responsibility we have, and we should always remember those who fought for our voting rights! People have marched, been arrested and even assaulted so that I could exercise my right to vote as both a woman and a person of color. Every ballot I cast is indebted to those who came before me.

This interview has been edited for length and clarity.

How We Voted in 2020

Charles Stewart III of the MIT Election Data and Science Lab released a new report, How We Voted in 2020, that examines the results of the Survey of the Performance of American Elections. The survey, which provides information about Americans’ voting experiences last November, is based on responses from nearly 18,000 people in 40 states and Washington, D.C., as well as from 1,000 voters in each of 10 swing states.

The report finds that the portion of voters casting ballots by mail grew to 46%, while the number casting ballots on Election Day fell to 28%. Those are significant changes from previous years. However, voters expressed high levels of satisfaction with the process, whether they cast ballots in person or voted by mail—something that has held steady from past elections.

Stewart released a preliminary version of his analysis in December 2020, and you can read the final report’s analysis here or check out a snapshot summary here.

Worth Noting

New NCSL Election Resource

In 2021, all 50 states have introduced election-related bills. To capture election legislation action, NCSL has created a new webpage that highlights significant enactments. For detailed information on all election legislation, please see our database. We are ahead of any previous year in terms of introductions: 2,814 bills have been introduced across the nation as of May 1.

‘The Price of Voting’ Report

Verified Voting’s new report on voting machines reassesses the Wharton Public Policy’s 2017 Business of Voting study, updates key statistics and adds new analysis on pricing. One significant finding: Three big vendors—Election Systems & Software, Dominion Voting Systems and Hart InterCivic—still control 88% of the voting machine market, while Clear Ballot and VotingWorks have expanded their footholds.

Mail Voting Studies

new poll from the Pew Research Center reveals a widening divide between parties on no-excuse absentee voting and early voting—Republicans (and right-leaning independents) are less favorably inclined. As for early in-person voting, it is favorably viewed by four out of five respondents, including 63% of Republicans and 91% of Democrats.

New research examines the relationship between mail ballots and voter turnout in the 2020 presidential election. Results from this study authored by Eric McGhee from the Public Policy Institute of California suggest that making it easier to vote by mail, and particularly mailing ballots to all voters, did increase turnout and may show a tilt in Republicans’ favor (with some caveats).

Election Administration Podcast

Need a new podcast? High Turnout Wide Margins is a weekly podcast about election administration. The hosts, election officials Brianna Lennon and Erick Fey, interview other election officials to provide a boots-on-the-ground perspective of how different states run elections. It’s fun. At least, fun for election geeks.

Ballot Duplication Resource

The Council of State Governments’ Overseas Voting Initiative (OVI) has a new resource offering recommendations for improving ballot duplication, which is the process for replacing damaged or improperly marked ballots with a new one that preservers the voter’s intent. Ballot duplication occurs most frequently with UOCAVA voters, who may request a ballot electronically and then print out that ballot; ballots printed by voters are typically on paper that differs from traditional ballot stock, and duplication is necessary to ensure the ballot can be properly tabulated and read by scanners.

Improving the Voting Experience After 2020

The Bipartisan Policy Center’s Task Force on Elections released new policy recommendations to improve the voting experience. The 12 recommendations seek to enhance local election administration and improve voters’ access to a secure ballot. The first recommendation: a caution against making policy changes or passing new laws within 90 days of an election.

Monthly Dose of Cybersecurity

You can never have too many cybersecurity resources—and free doesn’t hurt either. Check out this five-minute round-up of free election security from Maurice Turner, an election security analyst at the University of Southern California’s Election Cybersecurity Initiative.

New Election Commission

Louisiana's secretary of state announced the creation of the Commission on Election Integrity and Voting. This bipartisan commission seeks to provide an overview of Louisiana’s election processes and ensure Louisianians’ continued confidence in election administration and voting.

Free GIS Training

The National States Geographic Information Council and the Center for Tech and Civic Life are hosting five free 60-minute virtual training sessions exploring the use of geographic information systems (GIS) to increase the accuracy and reliability of election data. These training sessions will take place on Thursdays between May 6 and June 3.

How the Brits Decipher American Elections

What’s a “swing state” or a “third-party candidate”? While all the wonks reading this will know, you might still enjoy taking a peek at this lexicon the BBC created to help its British readers understand the wild world of U.S. politics and elections.

From the NCSL Elections Team

Last month, our team said goodbye to Brian Hinkle, who regularly contributed to this newsletter and is now on to a new opportunity in the elections world. He will be missed!

Please mark your calendars for NCSL’s Base Camp and Legislative Summit—both conferencewide meetings are sure to be can’t-miss events with excellent speakers, valuable information and opportunities to connect across states. Base Camp will take place online Aug. 3-5, and Summit will be held in Tampa, Fla., Nov. 3-5.

—Mandy Zoch, Wendy Underhill and Christi Zamarripa

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