Compilation of election returns and validation of the outcome that forms the basis of the official results by a political subdivision.
The year after a presidential election typically brings an avalanche of election legislation in state legislatures. With the events of the previous election fresh in the mind of legislators, bills are introduced reacting to how the primaries were run and what types of candidates they produced, the institution of the electoral college and how candidates access the ballot. NCSL’s Elections Team is tracking more than 1,500 election bills so far and many follow that trend, though with some notable “of the times” twists. Below is a sampling of some of the bills introduced this year. NCSL’s elections legislation database is updated every week.
Should primaries be more open to unaffiliated voters and permit voters to choose which primary to vote in? How far ahead of time does a voter have to affiliate with a political party in order to vote in a closed primary? (See NCSL’s webpage on State Primary Election Types for more information.) In addition to these usual topics, this year we see a few new twists on addressing the topic of primary elections.
Bills in three states deal with the cost of primary elections. Many states assist local election officials with paying for the cost of state and/or presidential primary elections (see NCSL’s webpage on Election Costs: What States Pay for more information). Arizona HB 2339 would increase the amount that counties are reimbursed for presidential preference primary elections. Currently, counties are reimbursed $1.25 per active registered voter, and this bill would increase that amount to $3 or $4 per active registered voter, depending on the voting population of the county. New York AB 2520/SB 3700 would require the state to reimburse counties and the city of New York for the costs associated with administering primary elections. Utah HB 204 would require state and local election officials (rather than parties) to run the presidential primary election and includes an appropriation to do so.
Several bills in Mississippi (HCR 18, HB 229, HB 302, HB 305, HB 367, SB 2224) would abolish partisan primaries and establish a combined preferential election in which all candidates are listed on the same ballot and held a few weeks before the general election. If a candidate receives a majority of the votes cast in the preferential election, that candidate appears on the general election ballot. If no one receives a majority, the top two vote getters’ names are placed on the general election ballot. All voters in Mississippi, regardless of party affiliation, could vote in the preferential election.
Bills in Illinois (HB 285) and Virginia (HJR 541 and HJR 635) would establish “top two” primaries, and bills in Iowa (SB 33), Mississippi (HCR 35) and Utah (SB 114) would establish primary runoffs if a candidate does not obtain a certain percentage of the votes during the first round.
Who can be on a ballot is always of some interest. Notable this year is the number of states that have specifically looked at requiring future presidential candidates to disclose income tax returns in order to be placed on the general election ballot. As of February 20, 2017 legislators in 18 states (Arizona, California, Connecticut, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont and Virginia) have introduced bills on this topic.
The biggest trend of the last few years had been online voter registration. When President Barack Obama was first elected in 2008, only two states permitted their citizens to register to vote using the internet. By 2012 that number had grown to 13, and as of January 2017 there are 34 states plus the District of Columbia that offer online registration— four more states have passed legislation to create systems in the near future. With so many states now offering online registration, fewer states are considering it this year. Still, bills have been introduced in Michigan (SB 56), Mississippi (HB 373, SB 2223), Montana (HB 51), Puerto Rico (HB 402) and Texas (HB 80, HB 143, HB 159, SB 185).
A newer trend is automatic voter registration, whereby citizens who apply for or renew a driver’s license are automatically registered to vote unless they actively “opt out.” After Oregon enacted automatic registration in 2015, there has been a spike in interest. Six states (Alaska, California, Connecticut, Oregon, Vermont and West Virginia) and the District of Columbia have authorized it, and 89 bills in 32 states have been introduced so far this year.
Maintaining clear and accurate voter rolls looks to be a hot topic this year in legislatures. Bills in Maryland (SB 842/HB 1354) and New Jersey (AB 4480) would require agencies that deal with jury records to provide information to election officials on individuals who are not citizens of the United States, and a Missouri bill (HB 777) would improve the reporting of death notifications to election authorities.
Bills in Hawaii (SB 115, HB 173, SB 327, HB 714) and Illinois (SB 943, HB 2573) would require joining the Electronic Registration Information Center (ERIC), which improves the accuracy of voter rolls by sharing data between states. Several bills in New Jersey address voter list maintenance, including two bills urging cooperation with other states to identify duplicate registration records (AR 190 and AB 639) and the creation of an online form to update information on an existing voter registration record (AB 4391).
After several relatively quiet years, legislators are once again looking at identification required to vote. Bills in Iowa (SB 47), Maine (HB 89), Nebraska (LR 1, LR 15), New York (SB 298) and Wyoming (HB 167) would establish voter ID requirements. Arkansas HB 1047 would require voters to provide identification when voting and include a photocopy of ID with an absentee ballot. Indiana HB 1329 and Virginia HB 1428 would require absentee voters to include a photocopy of ID with the returned ballot.
Other states are taking other approaches besides requiring identification. Connecticut HB 5096 would require an audit of statements from voters who did not present an ID. Illinois HB 439 would establish a pilot program that would allow election officials to place driver’s license pictures in poll books in order to help verify a voter’s identity. Similarly, Virginia SB 1253 would require e-poll books to include photographs of voters for identification purposes. Texas HB 384 would require the secretary of state to include photographs on voter registration certificates, which would then be considered acceptable ID.
North Dakota (HB 1369) and New Hampshire (HB 106 and HB 642) are both considering additional residency requirements for voters. Bills in Arizona (SB 1223), Kansas (SB 79), South Carolina (SB 167), Tennessee (HB 79), and numerous bills in Texas and Virginia would expand the list of acceptable IDs for voting or provide the option of signing an affidavit if a voter is not able to produce a valid ID.
Two years ago “ballot selfies” (voters taking photos of their voted ballots and posting them online) became a thing. State legislatures and the courts have been dealing with the issue ever since, and 2017 is no exception. Bills in Alaska (HB 7), Colorado (HB 1014), Illinois (HB 206), Missouri (HB 249), New Hampshire (HB 249), New Jersey (AB 4188), New Mexico (SB 117) and South Carolina (HB 3152) would permit the sharing of ballot selfies. So far, at least two bills have been introduced to prohibit them: Florida SB 224 and Iowa HB 93. See NCSL's page on ballot selfies for more information.
Data is great. Election officials are increasingly seeing the value of collecting data about voters and the voting process in order to improve the administration of elections. Legislators are also looking at data to ensure there are enough polling places and materials to mitigate lines on Election Day. Arizona SB 1390 would require election officials to take key information, such as prior turnout and demands for bilingual poll workers, into account before establishing polling places. Colorado SB 37 would require election officials in larger counties to measure and report the time it takes to vote, and also direct the secretary of state to establish uniform data-gathering and reporting rules. Virginia SB 1552/HB 2415 would require local election officials to determine the number of ballots to be printed based on the number of active registered voters and historical election data. Arizona SB 1306 would establish a statewide uniform format for unofficial election results. New York AB 2139, AB 2278, SB 3304 and SB 3436 and Arizona SB 1219 would require additional information on sources and numbers of voter registrations from local election officials.
Bills in several states address ranked-choice or instant run-off voting. Bills in Arizona (HB 2272), Connecticut (HB 6153), Hawaii (HB 179/SB 218, SB 824, HB 136, SB 824) Indiana (SB 529), Missouri (SB 140), New York (AB 1762, SB 3309), Virginia (HB 2315) and Washington (SB 5267) would all permit ranked choice voting for some elections. Wyoming SB 112 would require ranked pair voting, a variation in which the winner is the candidate that wins against all others in a one-on-one match up. Bills in Connecticut (HB 5950) and Wyoming (Wyoming HB 248) would study the option of implementing ranked-choice voting, and Georgia SB 32 would permit military and overseas voters to vote by instant run-off ballot. See NCSL’s Alternative Voting Systems page for details on these options.
2016 was a year for unexpected events—not least of which was the amount of attention paid to the Electoral College, and that has resulted in a bumper crop of legislation related to it this year. For only the 5th time in U.S. history the winner of the Electoral College vote was not the winner of the popular vote. Unlike the most recent time it happened—2000—this time there was no vote counting controversy to debate for weeks. Rather, the result was cut and dried. Under the Constitution the winner of the Electoral College vote wins the presidency, and there was no doubt about who won the most Electoral College votes.
Those wanting to award the presidency to the winner of the popular vote face an uphill battle. The layperson first thinks of amending the U.S. Constitution, something that hasn’t happened since 1992. The 27th (and most recent) amendment, which prevents salary increases for members of Congress until after an election, took 202 years to be ratified by the states.
As state lawmakers begin considering changes to election laws in 2017 and 2018, what options can they consider?
Do Nothing: As is, all candidates have the same rules to play by, and everyone knows what those rules are and how they work. Changes could involve unintended consequences. Besides, time and political capital spent on the Electoral College is subtracted from time spent on other priorities.
The Congressional District System: Forty-eight states use the winner-take-all system for awarding electoral college votes. That means the candidate that wins the popular vote in those states wins the electoral votes. Maine and Nebraska, however, use the congressional district method of awarding electoral college votes.
In these two states, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. For example, in 2008 in Nebraska, Barack Obama won the electoral vote in the congressional district including Omaha, while John McCain won in the state's other two districts and won the statewide vote as well, securing the state's two at-large votes, resulting in four Republican electors and one Democrat.
The National Popular Vote Compact: Another reform option sprung from the 2000 presidential election —the National Popular Vote Compact. Under the compact, state lawmakers pass legislation to award their states’ electoral votes to the winner of the popular vote nationwide, rather than the state popular vote. For instance, if the Democratic candidate won the popular vote in California, but the Republican candidate won the popular vote nationwide, California would be required to send its Republican slate of electors to the meeting of the electors. The agreement would take effect only if enough states to represent more than a total 270 electoral votes—the amount needed to win the Electoral College.
So far, 10 states and the District of Columbia have joined the compact—California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont and Washington—which total 165 electoral votes, so 105 more votes are needed for the compact to take effect. New York made its participation with the NPV interstate compact permanent in 2016. The compact has also passed legislative chambers in several other states. For the complete list, go to National Popular Vote, Inc. and check out NCSL’s National Popular Vote webpage.
Besides changing how the system works, legislators can address the issue of faithless electors. No federal law or constitutional provision requires electors to vote for the party that nominated them, and over the years a number of electors have voted against the instructions of the voters. These are known as faithless electors.
In the 2016 election, there were seven faithless electors, the most since 1972: five Democrats and two Republicans. Additionally, three electors were removed due to their votes and were not included in the final tally.
States can attempt to bind their electors to the results of the popular vote through the use of pledges with fines and penalties or the threat of disqualification and replacement. At least 29 states and the District of Columbia have laws on the books attempting to bind electors’ votes. But here’s the catch: no elector has ever been penalized or replaced, nor have these laws been fully vetted by the courts. It remains to be seen whether more states will pursue policies reining in electors this year, based on the number of faithless electors last year.
At least 53 bills in 21 states dealing with the Electoral College have been introduced in state legislatures. Approximately 18 states have legislation to adopt the National Popular Vote Compact, while New Jersey has legislation to repeal the state’s participation in the compact and California has a resolution urging other states to adopt the compact.
Seven states are seeking to adopt the congressional district system, while Nebraska once again has legislation to adopt the winner-take-all method of allocating electoral college votes. Lastly, a handful of states are seeking to address faithless presidential electors with ways of binding votes or replacing electors who do not vote for their party. For more information, see NCSL’s elections legislation database.
A “none of the above” or “none of these candidates” is an option on ballots that allows voters to register a protest vote against all the candidates for a given office. In some instances, if “none of the above” were to receive a majority of votes, it could trigger additional actions such as special elections. This option appears on ballots in several European countries and India.
Nevada is the only state to provide a “none of these candidates” option and has done so since 1975. However, even if that option were to receive a plurality of votes, the candidate with the next highest number of votes would win the election. At least three states have legislation to introduce a “none of the above” option on ballots—California (AB 541), Missouri (HB 894) and West Virginia (SB 44). California and West Virginia would apply only to elections for President and Vice President and would not trigger any additional action, but Missouri would apply it to all elections for statewide office, state legislature circuit judge and U.S. Senate and U.S. House of Representatives. Also in the Missouri legislation, a win by “none of the above” would trigger a special election in which any candidate on the previous ballot would not able to participate.
Senator Nicole Cannizzaro (D-NV) chairs the Senate Committee on Legislative Operations and Elections in the Nevada legislature. She got her start in the legislature some years ago, as a legal intern and was elected for the first time in 2016. She represents a suburban area in the Las Vegas valley. Sen. Cannizzaro spoke to The Canvass on Feb. 13.
Read the full interview with Senator Cannizzaro.
Marla Young is the county clerk for Box Elder County, Utah, a largely rural county an hour north of Salt Lake City. She worked in the clerk’s office for years before being elected for the first time in 2011. Young spoke with The Canvass on Feb. 13.
Read the full interview with Marla Young.
You can’t vote in two different states in the same election, right? Maybe. Maybe, not. Stay tuned for NCSL’s research about double voting prohibitions. And let us know, please, if you have insight on this topic.
For those of you interested in redistricting, email Wendy Underhill to sign up for NCSL’s redistricting list serve to connect with your peers and get the latest news. 2020 is right around the corner!
Don’t forget to register for NCSL’s Future of Elections: Technology, Policy and Funding Conference, June 14-16 in Williamsburg, Va.
—Wendy Underhill, Dan Diorio and Amanda Buchanan