NCSL’s The Canvass

 

2019 Election Legislation—A Continuation or Divergence from 2018?

One month into the new year, we’ve got a good look at what 2019 may bring. Many legislators are seeking to address “evergreen” policy topics while others may be looking tackle newer policy trends. As much as we would like a crystal ball, it’s impossible to predict what legislation will be introduced and what will pass in 2019.

But, we know legislation is often reactive, and we’ve already seen bills introduced in response to challenges and issues that surfaced last year. In 2018, 46 states, plus the District of Columbia and the U.S. territories, had legislative sessions. Montana, Nevada, North Dakota and Texas did not convene in 2018. That is not to say legislators in those state were idle. For example, both Texas and Montana had legislative tasks forces focusing on elections issues such as ADA accessibility and voting systems and technology. In addition, by our records, three states did not pass any elections-related legislation, while California passed a whopping 23 election bills.

 

 

 

 

 

 

 

 

 

Looking ahead at 2019, and if history is a guide, something over 2,000 election-related bills will be introduced in the 50 states, D.C., and the U.S. territories. Of those, perhaps 10 percent will be enacted. Those odds may be disappointing for those who are looking for change, or, potentially, a relief for those who prefer a steady state.

We’ll look at top policy areas such as absentee and early voting, voter registration, voting technology and audits—in each case starting with the news from 2018 and following with what’s been introduced in 2019.


Completing the Trifecta

Before we move further, we should discuss the elephant (or donkey) in the room: politics. In the 2018 elections, Democrats gained control of seven legislative chambers (well below the midterm average party shift of 12 chambers). Post-election, Democrats hold a trifecta (that is, control of both legislative chambers and the governorship) in 14 states, an increase of seven. Republicans retain a trifecta in 23 states and 13 states are divided.

Although it remains to be seen how these new trifectas will impact policies this session, by having one party controlling the legislative process, policies that were unable to pass with a split government in previous sessions may have a better possibility of being passed this year. Conversely, a former trifecta state that is now split may find new roadblocks in passing legislation. If you want the full coverage of the 2018 general election and what that means for 2019, visit NCSL’s StateVote page[DL1] 

As we look back at 2018 and begin to look at early 2019 legislation, we may only see individual dots. However, the late Steve Jobs was quoted as saying, “You can’t connect the dots looking forward; you can only connect them looking backwards.” So, get your pencils ready and we’ll see what takes shape.


Absentee and Early Voting

2018

In 2018, 231 bills were introduced on absentee and early voting. Of those 231 bills, 35 were enacted. That’s the most enactments of any elections category. With the passage of SB 527, New Hampshire now allows absentee voting if the National Weather Service issues a winter storm, blizzard, or ice storm warning on the Monday prior to the election for your area. The legislation passed after the state was battered with heavy snow before the municipal elections in March. New Hampshire requires an excuse to vote absentee.

In Michigan, a ballot measure prompted policy change. Michigan SB 1238 was enacted after the passage of the ballot measure and permits in-person absentee voting in the state. That left 12 states that don’t have early voting or no-excuse absentee voting.

2019

However, New York’s quick work in the 2019 session now makes that number 11. A slew of election legislation flew through both chambers of the state legislature and were quickly signed by the governor. These changes include a 10-day (including two weekends) early voting period.

Voting by mail ballot will be a big topic in 2019, but a newer twist may be a focus on the security and verifiability of absentee requests and ballots. Three states—Colorado, Oregon and Washington—send mail ballots to all eligible electors and both California and Utah are moving in that direction. Already this year Hawaii (SB 247), Illinois (SB 195, HB 257), Indiana (HB 1504), Iowa (SB 90), Maine (SB 84), Nebraska (LB 163), New Jersey (AB 1797), New York (AB 778), South Carolina (HB 3179), Virginia (HB 1658) and Wyoming (HB 36) have bills to establish all-mail elections as well.

In addition, many of the states that don’t offer pre-Election Day voting options are considering them this year. In Connecticut (HJR 10), Indiana (SB 86, SB 261), Missouri (HB 209, HB 368, HJR 5), New Hampshire (CACR 6), Pennsylvania (SB 33), Texas (HB 325, SB 164), and Virginia (HB 1641, HB 1794, HB 1959, SB 114, SB 602, SB 1035, SB 1672) bills have been introduced to remove the requirement that voters provide an excuse for voting absentee. And early voting is being considered in Connecticut (SB 23), Kentucky (SB 63), Missouri (HJR 5), Mississippi (SB 2026), South Carolina (HB 3040, HB 3266, SB 142) and Virginia (SB 1075).

Another area of focus will be on how to prevent a situation like the one in North Carolina in 2018 where absentee voters entrusted their ballots to individuals who may have tampered with their votes along the way. Sometimes known as ballot collecting or ballot harvesting, this practice was banned entirely in Montana last year via a legislative referendum. So far, a bill in California (AB 17) would prohibit an employer from asking an employee to bring his or her mail ballot to work or from voting it at work. A bill in South Carolina (SB 331) would prohibit a person from knowingly collecting voted or unvoted absentee ballots. There’s a fine line that legislators must navigate between permitting this practice, especially for populations that have difficulty returning absentee ballots via other means, and regulating it.

Registration

2018

Registration has been the headliner election policy area for years. In 2018, 46 voter registration bills were enacted, the most of any category. The focus used to be online voter registration, which 38 states and the District of Columbia now have. In 2018, automating of the registration process at DMVs and sometimes other institutions took the lead.  

Six states—Maryland, Massachusetts, Michigan, New Jersey, Nevada, and Washington—enacted or implemented automatic voter registration (AVR) in 2018, a huge increase in just one year, with a total now of 17 states and the District of Columbia. In four states it was legislated, while in Michigan and Nevada it was enacted through ballot measures. Washington’s HB 2595 not only implemented automatic voter registration but also expanded the agencies that need to provide local election officials with voter information updates. Same-day registration was adopted in three states—Michigan (again by ballot measure), Utah, and Washington. These bring the total to 17 states that offer same-day or Election Day registration.

2019

The new hot topic of AVR is well-represented in bill introductions in 2019. So far bills have been introduced in Arkansas (HB 1004), Connecticut (SB 24), Georgia (HB 18), Indiana (SB 349), Minnesota (HB 45), Mississippi (HB 423), Missouri (HJR 5), South Carolina (HB 3041), Texas (HB 79, HB 140/SB 103) and Virginia (HB 2390, SB 1063).

Same-day registration bills have been introduced in Indiana (SB 32, HB 1256), Kentucky (HB 7), South Carolina (HB 3040), Texas (SB 102) and Virginia (HB 1904). A bill in Connecticut (HB 5205), on the other hand, seeks to eliminate the option in that state.

Audits

2018

Post-election audits have been of interest in the election field, but has that translated into legislative action? The answer is “yes.” In 2018, there were 31 post-election audits bills introduced, a slight uptick from 2017. Of those, six bills were enacted. In both Kansas (HB 2539) and Michigan (SB 1238), new legislation implemented post-election audits. In Michigan, the legislation was prompted by the passage of a ballot measure in the 2018 general election.

A newer trend in 2018 was risk-limiting audits. As the map shows, three states have risk-limiting audits in code. However, other pilot programs have been run or authorized across the country (Indiana, Michigan and New Jersey). What the map does not show is that California (AB 2125), Ohio (Secretary of State Directive) and Washington (HB 2406) allow local jurisdictions to choose to do an RLA. California’s new law will permit local election administrators to conduct a risk-limiting audit instead of the traditional 1 percent audit, beginning with the March 2020 primary. The ability to allow local jurisdictions to choose an audit method is new.

2019

It’s a good bet that 2019 will follow the upward trend in audit legislation. Already, bills to establish post-election audits have been introduced in Indiana (HB 1315), Missouri (HB 543, SB 113), South Carolina (SB 140, SB 202), and Texas (SB 277). Two other bills in Indiana (SB 405 and SB 570) would require risk-limiting audits.

Voter Verification

2018

This topic was quieter in 2018 than in previous years. It is quite possible that by now any state looking to enact some sort of voter identification law has done so already. However, for some states the process of enacting voter identification requirements has been a bit of a journey, culminating in 2018.

In Arkansas, the story began in 2013, when new legislation was introduced. A year later, the state Supreme Court struck down the law but by 2017, similar legislation was reintroduced and enacted. After facing a challenge in courts, the Arkansas Supreme Court ruled that the law would be in effect during the 2018 elections. During the general election, a legislatively-referred constitutional amendment was referred to the people. It passed, and enshrined photo ID in the state constitution.

North Carolina’s journey also started in 2013 when voters enacted legislation. In 2015, amendments were made to the original legislation and then the statute faced court battles in 2016 and 2017. However, much like Arkansas, during the 2018 election, North Carolinians passed a public ballot measure that amended the state constitution to require photo voter identification.

Lastly, there is North Dakota, where legislation was passed in 2017. The ensuing court case made its way through the state’s legal system, eventually being referred to the U.S. Supreme Court, which declined to hear the case. During the 2018 election, the 2017 voter ID bill was in effect. North Dakota falls into NCSL’s “strict non-photo ID” classification.

You can track the full stories on NCSL’s Voter ID webpage.

2019

Last year may have been quiet, but 2019 has started off with more than 50 bills related to voter identification. Some bills seek to add a voter identification requirement, such as Maine (HB 247) and Illinois (HB 243). Others seek to remove existing requirements, such as Iowa (HB 129) and Rhode Island (SB 2704). North Dakota is addressing what is an acceptable ID (HB 1479), and Mississippi (HB 33) will debate what is needed to obtain a voter identification card.

Photographs are also a subject of discussion. In Missouri, HB 29 looks to require voters to provide a photocopy of proper identification to request an absentee ballot, while Texas’ HB 154 would allow an election official to photograph a voter under certain circumstances.

Voting Technology

2018

The administration of the 2018 general election was by most counts a successful event, particularly relating to voting equipment and security. Still, there were challenges states faced as they sought to procure and secure voting equipment and other election technology. The largest movement on the equipment front took place in Ohio (SB 135). In 2018, the Ohio legislature appropriated $104.5 million to their counties to procure new voting equipment. The state issued certificates of participation obligations, which are akin to bonds.

 

 

 

 

 

 

 

Ohio may have been alone in providing funds from the state, but it wasn’t alone in its discussion to replace aged voting equipment. As the chart above notes, many states planned to use the 2018 HAVA funds on voting equipment. However, six states in particular were/are looking to replace their voting equipment across the state—Delaware, Georgia, Louisiana, New JerseyPennsylvania and South Carolina.

2019

It looks like the replacement of equipment will continue into 2019. Although not a new trend, the requirement of paper ballots or a paper trail may be central in 2019 legislation. Bills in Indiana (HB 1315, SB 570), Missouri (HB 543, SB 113), Mississippi (HB 28), New York (SB 308), South Carolina (HB 3304, HB 3043, HB 3302, SB 182, SB 183, SB 140), Texas (SB 277, HB 22) all deal with phasing out paperless voting machines or requiring a paper trail for new equipment. Some bills include an appropriation. New Hampshire HB 345 would require new ballot-counting equipment to be acquired at regular intervals, and bills in Texas (HB 362) and Wyoming (HB 21) would create grant funds to assist local governments with purchasing new voting equipment.

New 2019 Trends

Ranked Choice Voting

Now that Maine has taken the plunge and become the first state to use Ranked Choice Voting (RCV) for a 2018 statewide election, interest in other states is on the rise. Municipalities in several states have long conducted elections in this manner. In 2018 the Utah legislature enacted a pilot project (HB 35) to allow municipalities to try out RCV in 2019 and reports are that five cities in the state are considering doing just that. So far in 2019 RCV legislation has been introduced in Connecticut (HB 5036) for primary elections, Indiana (SB 306) for municipal elections, Maryland (HB 26) for primary elections in Baltimore, Missouri (HB 27 for state and federal offices and HB 28 for all local elections), New York (SB 796) for the New York City, Virginia (HB 2097) for local and constitutional office (by choice of the local governing body), and Wyoming (SF 65) for all primary and general elections with at least two candidates.

Restoration of Rights

Following on the heels of Florida’s Ballot Measure 4, which would automatically restore voting rights, in most instances, to felons after they have completed their sentences, the restoration of voting rights for ex-felons has become a hot topic. Already in 2019, a total of 62 bills have been introduced in 16 states. Four examples of the types of legislation being discussed: Nebraska’s LB 83 addresses when rights can or should be restored. Legislation in Mississippi (HB 1224) would allow a qualified elector currently awaiting trial (not convicted) to be able to vote absentee. Texas (HB 656) could see county jails, in counties with more than 3.3 million people, become polling places for county residents currently in custody, but not convicted. And, in California (ACA-6), a proposed constitutional amendment would allow individuals currently on felony parole to vote.

Presidential Election

In the year preceding a presidential election, legislators often introduce bills on the electoral college, joining or withdrawing from the National Popular Vote Compact and imposing penalties on faithless electors are regularly introduced as well like Arizona (HB 2414), Colorado (SB 42) and Hawaii (SB 119).

After the 2016 presidential election, another issue cropped up in state legislation—requiring presidential candidates to disclose income tax returns as a condition of appearing on the ballot. Many bills were introduced in 2017 (with no enactments) and a new crop of bills have been introduced this year already (see California SB 27, Mississippi HB 24, New Hampshire HB 440 and HB 202). This is the year when we may also see some changes in primary types, whether a state’s primary is open to all voters or limited to political party members. That’s true this year too: Connecticut (HB 5501), Iowa (HB 55), and South Carolina (SB 261) to name a few.

Conclusion

On a national scale, we’ve looked at the dots behind and are beginning to see the dots forming ahead. However, the eventual decisions to “connect” those dots lie solely with each state’s legislature. At NCSL we are fond of saying that the states are the “laboratories of democracy.” Some states may see a continuation in policies while others see a break or change. The upcoming debates and outcomes are unknown.

We will regularly update the NCSL election legislation database, highlight election legislation in blogs and provide updates through The Canvass, So, if you stay with us throughout the year, maybe just maybe, we’ll see a fully formed picture at the end of a year.

This article was a collaboration between NCSL’s election team and former NCSL staffer Katy Owens Hubler of Democracy Research.

Worth Noting

NCSL Election Security Report. NCSL’s new election security/cybersecurity report is the culmination of four regional election security meetings held in 2018. Focusing specifically on the role of legislators, the report outlines the election process, from registration to election-night reporting, and includes steps legislators can take to help secure their states’ systems. 

NSGIC: New Reports and a New Website. The National States Geographic Information Council (NSGIC) released its first phase report on their “Geo-Enabled Elections” project. They also released their survey of election directors, which sought to determine the current state and implementation of Geographic Information Systems in elections. If you are interested in learning more, you can visit their new website.

NCSL Blog: Election Legislation Coming Soon to a State Near You. Election legislation is already being enacted in some states. Most notably, it took only a matter of days for legislation to fly through the New York Legislature and land on the governor’s desk. The since-enacted legislation included a 10-day (including two weekends) early voting period, introducing same-day registrationpreregistration, “portable” registration (i.e. if voters move jurisdictions within the state, their voter registration will follow them) and a consolidation of New York’s unique system of having separate state and federal primaries.  

Move Over New York? Not to be outshone by the Empire State, a bipartisan team of legislators from Pennsylvania held a news conference to introduce a suite of nine pieces of election legislation. Including three constitutional amendments, they look to address absentee voting, poll workers, judicial retention, early voting, vote centers, curbside voting, write-in candidates, ballots, and precinct sizes.

NCSL Providence Redistricting Seminar. If you’ve made it this far, you are obviously a fan of election administration. However, if you are also interested in redistricting, we have some good news! NCSL’s first Redistricting Seminar will be taking place in Providence from June 20-23, 2019. It is the start of a series of five meetings over the next 2 years.

From NCSL's elections team

A graphic that reads "From NCSL Elections Team"With 47 states and the District of Columbia in session, questions have been coming in right and left. So far this year, we’ve answered dozens of research requests on election administration (not counting those on redistricting and campaign finance). This is our job—to help legislators and legislative staff find the information they need to do their work well. Do you have a question? Try us.

And as always, let us know what’s on your mind, elections-related or otherwise.

Dylan Lynch and Wendy Underhill