2021 Legislative Action on Elections
On the heels of an election year unlike any other, it’s no surprise interest in elections peaked during the 2021 legislative session. An astounding 3,676 election bills were introduced last year—the highest number recorded since NCSL began tracking in 2001. Despite this groundswell of activity, the number of election enactments was consistent with other odd-numbered years (2019 being the exception) with 285 bills across 42 states and 2 territories becoming law.
Absentee/mail voting was a popular topic, due in large part to the historic expansion of absentee and vote-by-mail options precipitated by the pandemic in 2020. Even so, only a handful of states drastically expanded or limited absentee/mail voting, a larger chunk made changes to ballot collection rules, and addressed a feature of the process that, until 2021, wasn’t much of a legislative issue: ballot drop boxes. Lawmakers also enacted laws for the first time prohibiting private funding for election administration (a 2020 trend never seen before) and in a few states, increased oversight of election officials, including setting civil and criminal penalties for officials who break state laws.
We’ve summarized the year’s legislative trends below. For details on all these enactments and more, visit our enactments page. To learn more about what didn’t pass, visit NCSL’s state election legislation database.
Absentee/mail voting received serious attention in 2021 from various angles. Three states—California, Nevada and Vermont—moved to all-mail elections, bringing the total number of states conducting elections by mail to eight.
Several enactments addressed when absentee/mail ballots must be returned. New York joined 34 other states requiring ballots be returned by Election Day (previously the deadline had been the day before Election Day).
The other 15 states and D.C. will accept ballots after Election Day, as long as they’re postmarked on or before Election Day. In 2021, Iowa and Oregon shifted places: Iowa removed its “postmarked by” provision and now requires ballots to be received by Election Day, and Oregon went the opposite direction.
Four states—Iowa, New York, Texas and Utah—established ballot tracking systems allowing voters to follow their absentee ballot as they would a package, bringing the total number of states with such systems to 34. Three states—Florida, Georgia and Texas—added voter identification requirements to absentee ballot request applications and/or absentee ballot returns. And Kentucky and New York established online absentee ballot request portals.
Five states also took steps to reduce absentee/mail ballot rejection rates. Indiana, Kentucky, Texas, Virginia and Vermont—created a signature curing process, which allows voters to correct signatures deemed discrepant by election workers from previous signatures on a voter’s record. This brings the total number of states with a signature cure process to 23.
Ballot Drop Boxes and Ballot Collection
Until 2020, only eight states made mention of drop boxes in statute, and those statutes almost entirely addressed security features. In 2021, that changed, with nine states—Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Maryland, Minnesota and Virginia—enacting bills related to drop boxes. While many of those bills addressed security features, such as 24-hour cameras and lighting requirements, some created new stipulations relating to the number of drop boxes permitted or required in a given area, and where they should be located.
Ballot collection laws, which define who can return a ballot on behalf of a voter and how many ballots can be returned per collector were common and controversial before 2020. The issue got even hotter in 2021. Forty-three states have ballot collection laws, and three of them—Iowa, Kentucky and Montana—enacted legislation placing further limits on ballot collection in 2021.
Voter registration is said to be the gateway to voting—and thus always a legislative priority. This year, California and Nevada updated or expanded their existing automatic voter registration programs, but the biggest news was that Delaware enacted automatic voter registration for the first time. Now, 21 states and D.C. automatically register citizens when they do business with state agencies like the Department of Motor Vehicles-.
A stone’s throw away, Maine became the 42nd state with online voter registration.
Montana repealed its Election Day registration policy, the first state to move in that direction. Eighteen states allow voters to register and vote on Election Day. In Montana, the deadline to register is now the day before Election Day.
Lastly, Virginia will permit 16-year-olds to pre-register to vote.
NCSL has written on voter ID more than any other election topic due to steady legislative interest that just won’t quit.
In 2021, three states tightened identification requirements. Wyoming enacted its first voter ID law (classified as strict non-photo by NCSL), bringing the total number of states with voter ID laws to 35. Arkansas eliminated the sworn affidavit as an alternative to presenting a photo ID (separately, Arkansas removed a photo ID religious exemption for voters with beliefs which prevent them from taking a photograph). Montana enacted legislation requiring voters without a state, military, tribal ID or passport to provide two forms of alternate ID, one of which must include a photo. This enactment also added concealed carry permits to the list of accepted single-source voter IDs.
States also adjusted voter ID options. In North Dakota, legislation expanded the documents that may be used to supplement a voter's valid state ID if it does not contain current information.
Early In-Person Voting
Early in-person voting has steadily ticked up over the past two decades. According to the MIT Election Data + Science Lab, just over a quarter of all voters cast their ballots during an early in-person voting period in 2020, up from 3% in 2000. While lawmakers introduced more bills on early in-person voting in 2021 than in years prior, enactment numbers stayed relatively steady.
Kentucky added three days of early in-person voting, bringing the total of states with early in-person voting to 43. Indiana, Louisiana, and Oklahoma all extended early voting days, Iowa decreased the number of days from 29 to 20, and Georgia standardized the number of days across the state, requiring two Saturday voting days and two optional Sunday voting days.
Some states also limited specific types of early in-person voting. Texas prohibited most overnight voting and drive-thru voting, and Georgia limited the use of mobile voting centers to declared emergencies.
The term “audit” has been paired with “elections” much more this year than ever before. In NCSL parlance, we refer to statutorily mandated post-election tabulation audits, which define procedures that can verify the accuracy of an election’s outcome .
Most states, use a traditional fixed percentage audit, in which a small percentage of precincts or machines are selected for a comparison of the official count to a hand tally. Over the last few years, risk-limiting audits, in which the number of ballots to be reviewed depends on how close the margin of victory was, are getting lawmakers’ attention.
In 2021, Kentucky and Texas both established pilot programs for risk-limiting audits, bringing the total number of states with either risk-limiting audit pilots, statutorily mandated risk-limiting audits, or optional risk-limiting audits to 15. Nevada, which established a risk-limiting audit pilot in 2019, passed legislation this year making adjustments to the implementation of its program.
Alabama enacted legislation that will allow a post-election audit of three counties in 2022, and New Hampshire established a committee to study post-election audit counting devices, possibly setting the stage for more action on audits in the future.
How Elections are Run
In 2021, in addition to legislation addressing how people vote, we saw bills and enactments on how elections are run. Here are a few that caught our eye.
For the first time, we saw legislation addressing private election funding. Eleven states—Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, North Dakota, Ohio, Tennessee and Texas—enacted bills prohibiting the use of private funding for election administration, a response to the infusion of philanthropic funding used to cover pandemic-related election costs during the 2020 general election.
Some novel enactments focused on election officials. Four states—Arkansas, Georgia, Iowa and Texas—created criminal penalties for election officials who don’t follow state law, each in its own way. Mis- and dis-information was also a concern, and Arizona, Kansas and Louisiana passed bills making it a crime to impersonate an election official.
Poll workers and watchers—those who help run elections and those can observe them—were also a hot topic in 2021, with 13 enactments in 11 states. Some of these enactments related to new training requirements, and several others were in response to poll worker shortages and will now allow poll workers to serve in precincts where they are not registered or counties where they don’t live.
Other 2021 Election Enactment Highlights
- Ranked Choice Voting: Four states passed pro-ranked choice voting bills this year. Colorado will allow the use of instant runoff voting—aka ranked choice voting—in nonpartisan municipal elections beginning in 2023, and Utah eliminated the sunset date for municipalities opting to use ranked choice voting in local elections. Georgia made provisions for military and overseas voters to use ranked choice voting in the state’s primary runoff elections. And Maine, the first state to make widespread use of ranked choice voting, passed a housekeeping bill clarifying the procedures for ranked choice voting in presidential primaries and general elections.
- Cybersecurity: Although just four states—Arizona, Arkansas, Montana and Washington—passed bills on election cybersecurity, it remains an evergreen (and difficult to legislate) topic. Arizona and Arkansas required that jurisdictions prevent unauthorized access to election systems, keeping electronic poll-books and voting machines off the internet. Montana required local election officials to conduct security assessments, and Washington exempted election security information from public records requests.
- Felon Voting Rights: Three states made big changes to felon voting rights. Connecticut, New York and Washington all restored voting rights to citizens on parole—becoming the 19th, 20th, and 21st states to do so.
- Voter list maintenance: In 2021, 19 enactments in 14 states addressed the upkeep of voter rolls—the first step in running secure elections including:
The only crystal ball we have is this picture, but here’s what we do know: Years ending in “2” are always busy for election officials because of redistricting and all the work associated with it.
No matter what happens, one thing’s for sure: Our team will be covering the action and at the ready to help you make sense of it all.
2021 Determinations for Section 203 of the Voting Rights Act
Last month, the U.S. Census Bureau announced the list of political jurisdictions that must provide minority language assistance to voters. The “must” comes from Section 203 of the Voting Rights Act, which requires certain jurisdictions to provide bilingual written voting materials and voting assistance in the covered minority languages. The list is derived from the American Community Survey five-year estimate (2015-19).
A complete list of covered jurisdictions is in the Dec. 8, 2021, Federal Register.
Implementing minority language assistance is handled by election administrators and does not require legislative action. Legislators, however, may face questions about the changes. Perhaps of most interest are the changes in the number of states and jurisdictions required to provide minority language assistance when a new list comes out every five years. Here’s a quick look at changes over the last four cycles. (Note that the 2011 list is an outlier for the number of states covered.)
Statewide coverage (Spanish)
3 (CA, NM, TX)
3 (CA, FL, TX)
3 (CA, FL, TX)
3 (CA, FL, TX)
States with at least one covered jurisdiction within the state
*Some jurisdictions are covered by more than one language.
For a more detailed look at the history of coverage, see the Census Bureau’s summary chart. For the future of coverage, there will be two more releases: one in 2026 and one in 2031, since Sec. 203 is set to expire in 2032.
Section 203 applies only to language minority groups that fall into these categories: Hispanic (Spanish), Asian (21 languages) and American Indian/Alaska Native (51 languages).
The Census Bureau describes the Voting Rights Act’s criteria for determining which jurisdictions or political subdivisions must provide minority language support very precisely:
Determinations for each state, county or county subdivision (depending on which is the operating level of government) are then computed based on the following:
- If more than 5% of voting age citizens are limited-English proficient,
- If more than 10,000 voting age citizens are limited-English proficient,
- The rate of total voting age citizens that are limited-English proficient and have less than a 5th grade education is higher than the national rate.
- The state, county, or county subdivision under consideration is covered for that specific minority group of Section 203 of the Voting Rights Act.
In addition, American Indian/Alaska Native Areas are computed based on the 5% rule in conjunction with the 5th grade education rule. A jurisdiction is free to provide additional assistance above the federal mandates, as well.
More details pertain; election administrators can find help from the U.S. Department of Justice and the U.S. Election Assistance Commission on its Language Access page, particularly the Language Access Program Checklist.
News Worth Noting
New Hampshire Secretary of State Bill Gardner Announces Retirement After 45 Years
Bill Gardner, New Hampshire’s secretary of state since 1976, announced his retirement. His position is unusual in that he is elected by legislators in a joint session of the two chambers. Four states give responsibility for choosing their secretaries to the legislature as a whole or to one chamber; Maine, Oklahoma and Tennessee are the others. According to the National Association of Secretaries of State, Gardner is the second longest-serving secretary of all time. He is best known as the keeper of the Granite State’s first-in-the-nation presidential preference primary. His office has responsibility for setting the date for that contest.
Initiatives, Referenda and Ballot Measures—Oh My!
NCSL’s Initiative and Referenda Processes resource has been updated to reflect legislative and legal changes from 2021. Use the interactive maps—one for citizen initiatives and one for popular referenda—to see how each state’s process works, or view the topic pages for a nationwide overview of integral components, such as laws regarding circulators and petition content.
CISA Hosts Election Cybersecurity Navigators Forum for Election Officials
The Cybersecurity and Infrastructure Security Agency (CISA) recently concluded a forum for state and local election officials to discuss cyber navigator programs. Cyber navigators are state liaisons that help under-resourced local jurisdictions manage their cyber risks, sort through the onslaught of risk information, advice, and available services and fast-track mitigation efforts. The two-day forum was part of a new series aiming to prioritize cybersecurity across the U.S. Department of Homeland Security. Some “navigator” programs have been established by legislation.
Survey Reveals How State Election Directors Use Geographic Information Systems
The National States Geographic Information Council released a new survey detailing the use of geographic information systems (GIS) in elections. Twenty-seven state election directors, along with two from U.S. territories and Washington, D.C., weighed in on the state of geo-enabled elections. While the majority reported that election officials in their state use GIS to prepare for the first elections after redistricting, other uses included election data management, maintaining residential data for registered voters and conducting spatial data audits to verify voting districts or precincts. In other words, GIS is increasingly being used to ensure accuracy in elections.
USPS Built and Tested Online Voting System
Prior to the 2020 election, the U.S. Postal Service built and tested a blockchain-based mobile phone voting system without the involvement of federal agencies that focus on elections and cybersecurity experts. The project was abandoned in 2019 and never deployed for use in an electoral contest. The system would have allowed votes to be cast on an internet-connected mobile app. According to researchers, the system was highly vulnerable to attack, failing to protect against the numerous ways hackers might fake or corrupt votes.
New Report Illustrates Global Reach of Mis/Disinformation
The Center for Democracy and Technology’s new report, “A Lie Can Travel: Election Disinformation in the United States, Brazil, and France,” examines election disinformation, how it spreads and what can be done to stop it in three case studies across the world. Short on time? Read the executive summary here or watch the related webinar recording here.
Interested in Election Administration? There’s a Certificate for That
The University of Minnesota’s Certificate in Election Administration is a flexible online program offering seasoned and amateur election professionals alike training in the latest technology and techniques in the elections field. Plus, amid the exodus of election officials, demand for talented administrators is surging.
New York City Approves Noncitizen Voting in Local Elections
New York City Council passed a measure allowing noncitizens to vote in local contests, making it the largest city in the U.S. to do so. The legislation affects those who have lived in the city for at least 30 days and are legal permanent residents in the U.S., such as green card holders, Deferred Action for Childhood Arrivals recipients and those with work authorization; it does not entitle them to vote in state or federal elections. Very few U.S. cities—about a dozen—allow noncitizens to vote in local contests.
How Do We Keep Partisan Politics Out of Election Administration?
The Campaign Legal Center’s recent webinar on partisan politics in election administration addresses the need for transparency, truth and bipartisan cooperation in running elections. Panelists not only discussed how post-election processes can be improved through voter education to increase public confidence in elections, but how to improve election administration efficiency more broadly through legal, policy and administrative solutions which leave out partisan politics.
U.S. Joins Four Nations in Expressing Concern Over Hong Kong Election
Foreign ministers from the United States, Australia, Canada, New Zealand and the United Kingdom released a joint statement expressing concern over the recent Legislative Council election in Hong Kong. The contest was the first since mainland China’s overhaul of Hong Kong’s electoral system, which reduced the number of seats directly elected by residents and imposed stringent candidate vetting procedures by Beijing. With democracy advocates imprisoned and others exiled, Hong Kong’s pro-democracy parties refused participation in the highly contested election, which saw the lowest turnout since elections began in 1991.
From the NCSL Elections Team
Happy New Year! As redistricting wraps and midterms ramp up, we’re rebooting Office Hours—the team’s informal monthly virtual meeting for legislators and legislative staff—to feature more elections content. (Don’t worry—there will still be plenty of redistricting.) We’ll talk election administration, politics, campaign finance and even feature a guest speaker or two on every second Tuesday of the month. No matter where your interests lie, we’d love to have you.
Of course, our team will still be available to answer questions, provide resources and offer testimony on all things elections. And if you have concerns, or updates you think we should know, please reach out.
—Mandy Zoch, Wendy Underhill and Saige Draeger