The Canvass: February 2020

1/22/2020

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2019 Legislative Action on Elections

As we enter a new decade and what promises to be an exciting year on the elections front, it is worth looking back at the changes made to elections policies by legislatures in 2019. Issues such as pre-Election Day voting, voter registration and election security continued to occupy the minds of legislators across the country.

Last year saw an uptick in bills from 2018. In 2018, 2,555 bills were introduced and 336 were enacted. In 2019, 2,954 bills were introduced with 367 enacted, the most since 2011. Forty-six states enacted election legislation in 2019. With elections dominating the news cycle we can expect to see even more action in 2020.

Summary of 2019 Action

Voter registration and pre-Election Day voting measures led the way in 2019. Vote-by-mail continues to gain momentum across the country as well, with Hawaii joining the ranks of states with all-mail voting in 2019.

Not surprisingly, election security was also a focus as states gear up to protect their elections from potential interference in 2020. The purchase of new voting machines in states such as Pennsylvania continue a “back to the future” trend of requiring paper ballots and scanners for tabulation in order to bolster election security.

For complete details on these enactments and many others, please check out NCSL’s new webpage on 2019 election legislation or see NCSL’s election legislation database.

Voter Registration

Registration led the way for 2019 election related enactments, with 46 bills passed in 28 states. Automatic voter registration, list maintenance and Election Day registration were all topics addressed by states.

Yard with sign that says "Register Here: Voter Registration" Automatic, or automated, voter registration (AVR) continued to gain steam in 2019, primarily in states with Democratic leadership. AVR typically uses motor vehicle bureaus to register voters electronically, an extension of the role these state offices have played since the passage of the National Voter Registration Act of 1993, aka Motor Voter. In 2019, Vermont, Maine, Nevada, New Jersey and New Mexico all enacted legislation codifying AVR.

Four states—Nevada, Hawaii , Maryland and New Mexico—will join 17 others in offering Election Day registration, for a total of 21 states.

As for list maintenance, Arizona will now provide an online option for voters to update their information when they receive follow up notices for purposes of list maintenance. Arkansas will use information from jury selection processes to ensure that registered voters are U.S. citizens.

Pre-Election Day Voting

Absentee voting and early in-person voting are part of a larger movement among states to transition towards pre-Election Day voting. In fact, one way to think of Election Day is that it is the last day to vote.

New Hampshire made it easier for older citizens to vote by absentee ballot. Caregivers are now permitted to deliver voted ballots on behalf of residents of nursing homes or assisted living facilities. Hawaii also made changes to its absentee voting system. While Hawaii of course does not allow deceased people to vote, it will now count absentee votes that have been submitted even if the voter dies prior to Election Day. States are split on this issue, although in practice it is hard to separate a deceased voter’s ballot from the other ballots once its envelope has been removed.

Other states such as Kansas and Virginia are fine-tuning their absentee ballot processes. Kansas and California will now provide absentee voters an opportunity to cure signature discrepancies on absentee ballots rather than the ballots being rejected outright. Virginia enacted a law requiring that an applicant who is line for in-person absentee voting when the polling place closes be allowed to cast a ballot. In addition to the states moving towards more absentee voting, New York will now allow early in-person voting. Delaware will adopt early in-person voting beginning in 2022.

Mail Voting

Fifteen bills were passed in 10 states in 2019 on all-mail voting. What some call “vote at home” is quickly becoming an option in states across the country.

Mail-in ballot Hawaii became the latest state to transition to all-mail elections. New Jersey will employ a slightly different method by establishing a permanent absentee list to allow voters to continue to receive mail ballots once requested unless the voter opts out.

Washington and Oregon, both already all-mail voting states, updated their laws to make the process of mailing in the ballots easier. Washington will now require that the state reimburse counties for the cost of return postage on voted ballots. Oregon took a different approach and will require the state to pay for ballot return envelopes that can be returned by business reply mail.

Election Security

The recent appropriation by Congress of $425 million to the states under the Help America Vote Act was perhaps the most significant election security development in 2019. This follows a previous appropriation of $380 million in 2018. States rely on this money to update their critical election systems and to secure their election technology. State legislatures, along with the chief election official in each state, will be responsible for determining the use of the funds.

Legislatures enacted 18 bills in 14 states concerning election security in 2019.

Ohio strengthened the security of its elections by creating a Civilian Cyber Security Reserve. Other states took measures to protect the security of their state voter files including Iowa, Indiana and California.

Risk-Limiting Audits, or RLAs, also received attention in multiple states. Arkansas will now require RLAs to be conducted by the State Board of Elections. Indiana established a pilot program for RLAs for certain counties and elections, and Oklahoma will allow its Board of Elections to select counties for RLAs.

Voting Technology

Concerns over securing our elections also spurred action regarding voting technology. Fourteen states enacted 15 bills on voting equipment in 2019.

Electronic voting machines Texas will now require the secretary of state to prescribe specific guidelines for the certification of electronic pollbooks, including requiring the device to display the voter’s original signature. Pennsylvania enacted requirements for the decertification of voting machines, something relatively few states have done. This move follows the statewide shift to paper ballots across all counties.

Other states took steps to ensure they will be ready to update their voting equipment in the future. Hawaii appropriated roughly $790,000 towards a future vote counting system contract. Wyoming created an “Election Readiness Account” to pay for specified expenses in conducting future elections subject to the requirements of the Help America Vote Act, which mandates that states provide a certain percentage of matching funds for federal grants.

Voting Rights of Formerly Incarcerated Citizens

Another long-term trend continued in 2019: earlier restoration of voting for those who have been convicted of a felony. Eight bills were passed in seven states on this topic.

Illinois enacted multiple bills in this area. One bill establishes a program which allows individuals confined in county jails prior to trial to vote. A second bill enacts a nonpartisan peer-led civics program throughout the Illinois’ correctional institutions to teach civics to soon-to-be-released citizens.

Nevada passed a comprehensive bill updating many provisions of their code. The legislation maintains the right to vote for those convicted of a crime but not yet in prison and restores the right to vote upon release from prison. Colorado and New Jersey will now restore the voting rights of individuals earlier in the post-release process. For Colorado, voting rights are restored for those who are on parole, and in New Jersey, those who are on probation or on parole can now vote.

Electoral College

The Electoral College continues to be a hot topic heading into the 2020 election. See the January issue of The Canvass. Four states—Colorado, Delaware, New Mexico and Oregon— joined the National Popular Vote Interstate Compact, which began in 2006 and now includes 16 states and the District of Columbia. Also in 2019, the governor of Nevada vetoed legislation to join the compact.

Washington passed a “Uniform Faithful Presidential Electors Act” in 2019 intended to bind the votes of their presidential electors in the Electoral College. The U.S. Supreme Court is now set to hear a consolidated case this year involving lawsuits brought by Washington and Colorado’s 2016 electors to challenge their states’ ability to bind their votes.

2020?

While most folks will be paying close attention to election results this year, we here at NCSL will be keeping our eye on election administration legislation. Please visit NCSL’s Elections Legislation Database.

From the Chair

This month we spoke with New Jersey Assistant Majority Leader James Beach (D). Beach serves as Chair of the Senate Committee on State Government, Wagering, Tourism & Historic Preservation. He has represented the Garden State’s sixth district, which covers parts of Burlington County and Camden County, since 2009.

How did you first get involved in election law and policy?

In 1995, I was elected Camden County Clerk. Elections were the most prominent and visible part of the job, so I had to learn about them pretty quickly. And when I compare New Jersey elections in 1996 to now—they’re lightyears-improved, but they still have a way to go.

As county clerk, I worked closely with legislators, and when I became a legislator, I was fortunate enough to be appointed chairman of the State Government committee. It gives me an advantage to get things done.

Your state has just enacted quite a few election-related measures. What prompted you, and how is that going?

Anyone involved in the elections process should be interested in increasing voter participation, and that’s what many of these recent enactments do. Vote-by-mail and automatic voter registration, in particular, have been big pushes for us.

New Jersey now has automatic voter registration through motor vehicles. If you sign up to get a driver’s license, you’re automatically registered to vote. With our old system, voters had to opt in; now they have to opt out. It’s a positive step to increase voter participation.

The vote by mail process also makes voting easier. With this process—which has been enacted by looking at what other states are doing well—voters can request to be on a permanent absentee voter list. Once they request that, they receive their ballots by mail until they request otherwise. We’ve already seen participation increase with this. In Camden county, which has a population of about 310,000 people, we’re expecting 70-80,000 votes by mail. Some counties (including Camden) have opted to pay the price of postage. Other counties have chosen not to—we left that to each county to decide.

Election security is a hot topic. Where is New Jersey on that front?

Cyber warfare is a big concern. Fortunately, a paper ballot is the safest ballot. Also, we have reintroduced a bill from last session that would require at least half of our 2020 Help America Vote Act (HAVA) funding—and half of all future HAVA funding—to put more paper record voting systems into our state. We’re also pursuing a pilot program in three counties that would transition the state to a paper ballot voting system using optical scanners in each election.

Election security—as in, preventing voter fraud—got involved with a bill I introduced that would move up voter registration deadlines and the date when mail ballots can start being counted for the 2020 primary. However, in my 14 years as county clerk, I never really came across one case of intentional voter fraud, so I backed off the bill. The Senate President agreed with my decision, and the bill died with the end of the 2019 legislative session.

Right now, if someone votes by mail and then attempts to vote at a polling place, we can check and see if they have already voted. If the voter insists on casting their vote in person, they can use a provisional ballot. That’s the safety net. No voter is disenfranchised; they can always do a provisional ballot.

What are some of your other priorities for the 2020 session?

One priority is the Voter Empowerment Act. We’re working to get this through shortly. It will permit young people who are 17 to participate in our primary elections if they will be 18 by Election Day. We know that once you start voting, you have a tendency to continue. Vote by mail makes that easier too.

We’re also in the process of passing a bill where voters can sign up to receive their sample ballots by email. We’re aware of how we’re spending taxpayers’ dollars, and this would save each county a heck of a lot of money. This is also just common sense. For example, if someone votes by mail in May for our early June primary, they might still receive a sample ballot in the mail even after they’ve already voted. Our vote by mail bill had a provision that if a ballot is received, no sample ballot is sent, but of course there’s a gap between when a ballot is mailed in and when it is received.

There’s still a lot to be done. It’s hard to change traditional practices, but we’re trying. I really believe one day the younger generations are going to ask, “Why did it take us so long to get to vote on our device?” I do all my banking on my phone! If I feel secure enough to do that, there should be a way to make voting by phone possible.

Anything else you think your peers in other states might find interesting?

In New Jersey we have some extremely small communities with fewer than 20 registered voters. Right now, voting locations have to stay open until polls close at 8 p.m., but in these communities, if everyone votes by 9 a.m. we end up paying people to sit there and work when there’s nothing to do. One solution is to make these small communities all vote by mail. It could save money on workers, machines, etc. We’re weighing the pros and cons, and of course the last thing we want to do is disenfranchise any voter.

Hopefully eventually we’ll just be voting on cell phones and that will be least expensive and easiest way to vote.

Ask NCSL

How are states making absentee voting accessible for blind and visually impaired voters?

While people with disabilities are required by federal law to have private, accessible voting options in polling places, for absentee voters the traditional paper absentee ballots pose issues for blind and visually impaired voters. These voters may need to rely on a sighted assistant to mark the ballot, which means that voting is no longer a private or independent act. Keyboard with "Vote" button

To remedy this privacy issue and make absentee voting more accessible, the National Federation of the Blind supports the use of electronic ballot delivery and marking systems, where ballots are marked online, then printed and mailed in. See this article about how the process works in New Mexico. Of course, security activists point out that any form of electronic ballot delivery for voted ballots involves risk.

Michelle Bishop from the National Disability Rights Network, however, cautions that electronic ballot delivery and marking systems do not meet the needs of all people. Some users might not have the necessary hardware or WIFI to access the electronic ballot. Electronic ballot delivery also requires voters to use their hands to print the ballot and put it in the envelope, which may not be possible for people with physical disabilities.

Some states are testing other options. Both New York and Pennsylvania, for example, have pending legislation that would make absentee ballots available in braille or large print.

Worth Noting

EAC State by State Voter & Election Data

The U.S. Election Assistance Commission has released state data highlights for the 2018 election. View the list of states here (scroll down to State by State Data Highlights) and find useful data—such as voter turnout numbers, election technology use by jurisdiction and more—in an easy-to-use format.

Kentucky Considers Even-Year Elections

Kentucky is one of just a few states that holds statewide elections in odd-numbered years. But that may be changing. A Kentucky Senate committee unanimously approved a bill to end the state’s odd-year elections and align them with federal elections (and with its legislative election schedule). Advocates say this decision would both increase voter participation and save about $10.5 million per election cycle.

“Logical Election Policy” from the Bipartisan Policy Center

The Bipartisan Policy Center’s Task Force on Elections released its new report, “Logical Election Policy.” Developed in collaboration with election officials, the report offers recommendations for improving the American voting experience, including suggestions to make it more secure, accessible, accurate and fair.

Political Robocalls

You may have heard that Congress enacted the bipartisan Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, which aims to reduce spam robocalls. What does this mean for political robocalls? Likely nothing, as political robocalls are protected under the First Amendment. When Montana banned political robocalls, for example, a federal appeals court ruled the ban unconstitutional.

New Jersey Chooses Transparent Election Data

New Jersey Governor Phil Murphy signed into law the “Voting Precinct Transparency Act,” which requires that district, ward and county boundary data be filed with the Secretary of State for online posting and downloading. The new law also requires that the format for election results matches the format used for election districts boundary data. All this data will be available on the state’s election website for free public use.

SCOTUS to Hear Faithless Elector Cases

The U.S. Supreme court will hear two cases about “faithless electors,” members of the Electoral College who choose not to vote for the presidential candidate chosen by voters in their state. The cases are from Colorado and Washington, and both challenge laws that aim to bind electors to the vote of the people. Twenty-eight other states and the District of Columbia have similar laws. See NCSL’s resource on the Electoral College, last month’s issue of the Canvass and this new blog post for more information about faithless electors.

Monthly Dose of Cybersecurity Hand reaching through a computer screen with a key to unlock a file folder

The U.S. Election Assistance Commission held an all-day summit to help state and local election officials prepare for the 2020 primaries and general elections. Highlights included discussions on election security, combating foreign interference in elections and more. You can find streams of the speakers and panels here.

Pa. Girl Scouts Unveil New Civics Fun Patch

Draw the Lines PA and the Girl Scouts in the Heart of Pennsylvania developed the Girl Scout’s first patch dedicated to understanding voting and election district mapping. Participating troops can complete different civics-related activities to earn the civics fun patch. Young Girl Scouts might learn about the value of writing to public officials, while older scouts can learn about redistricting.

Good Reading on Election Information

Where do you go online when looking for election-related news or information? Some blogs and newsletters that our Elections team uses to stay up-to-date are Election Academy, Election Law Blog, Electionline Weekly and Verified Voting. Send us your recommendations at elections-info@ncsl.org.

Involved in Redistricting? We Can Help

While redistricting falls outside the scope of our typical content, we recognize that many people interested in elections are also interested in redistricting. If that’s you, please consider joining our redistricting distribution email list to receive updates about NCSL resources on redistricting. Email us at elections-info@ncsl.org to join the list.

From the NCSL Elections Team

As of publication—Feb. 3—all but seven states that will have legislative sessions this year will be up and running. Four states—Alabama, Connecticut, Minnesota, and Wyoming—will be open for business before Valentine’s Day. That leaves the late-comers: Louisiana (March 9), Arkansas (April 8) and North Carolina (April 28). Montana, Nevada, North Dakota and Texas don’t convene at all in even-numbered years. The point: we are in the thick of the legislative season!

As always, we hope to hear from you with any election news, updates or questions.

Wendy Underhill, Brian Hinkle and Mandy Zoch