Legislative Focus Shifts from Voter Experience to Everything Else
This article reflects bill introductions and enactments as of June 1, 2021. For more current information, visit our state election legislation database.
For obvious reasons, 2020 was a year like no other. This year is shaping up to be a year like no other as well, but for a less obvious reason: More elections legislation has been introduced this year than any other year since 2001, when NCSL began counting. Over 3,100 bills have been introduced as of June 1. Introductions have slowed way down as many states have gaveled out, but enactments are racking up. NCSL has created a 2021 Election Enactments webpage to capture all the action.
More significant than the jump in introductions, though, is the shift in content. Legislators have brought their attention to both new issues and topics that have been around for a while, but rarely commanded so much attention.
Brand new this year:
- Bills and enactments relating to whether election offices can accept contributions from anywhere other than federal, state or local governments.
- Bills and enactments concerning state authority over local election officials.
- Bills (but no enactments) increasing legislative oversight of the selection of presidential electors.
Not new but far more prominent than in years past are bills relating to:
- The congressional district model for awarding presidential electors.
- Ballot collection laws.
- Ballot drop box location and security.
- Poll watcher rights and responsibilities.
- A renewed emphasis on voter ID.
- The voting experience for people with disabilities.
The last item is so significant that we will devote an upcoming issue of The Canvass to covering it.
As you read quick summaries of hot topics below, keep in mind that bills are aspirational, whereas enactments are transformational. And a trend in introductions may not translate to a trend in enactments; but if it does, we’ll be sure to cover it in The Canvass and elsewhere.
Restricting Local Election Offices from Accepting Private Funding
Until 2020, no philanthropies were making gifts, grants or contributions of any kind to election offices. Election officials have always made ends meet with funds from local and state budgets and occasional federal infusions. When COVID-19 hit, local election officials faced unexpected expenses for absentee ballot mailing and processing and larger in-person voting facilities that could accommodate social distancing.
In response, the Chan Zuckerberg Initiative provided $400 million to the Center for Tech and Civic Life for COVID-19 Response Grants. The organization distributed those "Zuck Bucks" to election offices across the nation last year. "It was an open call. Every election department that had any responsibility for administering elections in 2020 was eligible," says Tiana Epps-Johnson, the founder and executive director of the Center for Tech and Civic Life. Every eligible department that applied received a grant, ranging from $5,000 to $19 million.
Is this a way to run elections? Some legislators say no, and 14 bills in 12 states have been introduced to prohibit using any kind of private or philanthropic funding to run elections. Arizona, Idaho, North Dakota and Tennessee have enacted bills to date. The goal of these bills is to ensure that there’s no coercion—or even the appearance of coercion—as public servants count votes.
Based on last year’s experiences, states might also be thinking about what the right mix of funding is for routine times and how election offices can get quick cash if another emergency arises. “Why are elections living on a threadbare diet in normal times?” asks Charles Stewart III, an MIT political science professor and director of the MIT Election Data + Science Lab. “It’s not clear what the solution is, but it’s probably some combination of federal, state and local funding.”
Increasing State Authority Over Local Election Officials
Another new question that legislatures are debating this year: Who is responsible for what, when it comes to elections? Historically, local election officials run elections, but over the last 20 years, that responsibility has moved more toward the state level. This year, several bills would continue that trend, providing avenues for state authorities to play a larger role in elections. Some bills would also make it clear that local election officials who don’t follow state policy will face charges or fines.
Key enactments include legislation in Iowa and Georgia that establish fines and penalties for local election officials who commit technical infractions or violate the terms of their oath, respectively. Georgia’s new law also establishes provisions for performance reviews of local election officials.
Similar bills are pending in Arizona, which would require all voting irregularities be reported to legislative leaders; South Carolina and Alaska, which would both require suspected violations of election laws to be reported to the attorney general; and Texas, where a handful of bills (HB 680, HB 1026, HB 3523 and HB 2546) would increase the secretary of state’s authority over voter registration procedures.
Expanding Legislative Oversight of Presidential Election Selection
The U.S. constitution says, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives…” It’s been standard practice for well over a century that each state’s voters elect the presidential electors. But is that the only way it could happen?
Republican lawmakers in five states have introduced bills that relate to presidential electors, each taking a different approach—and none of them are moving, at least so far.
- In Arizona, a bill sought to ensure that the Legislature “retains its legislative authority regarding the office of presidential elector” and could, right up until inauguration day, revoke the slate of electors. A House resolution also sought to appoint alternative electors for the 2020 presidential election, though that also died.
- Idaho had pending legislation that would use only votes cast in person or by those who supplied an excuse to vote absentee when determining presidential electors.
- Stalled legislation in Missouri similar to Arizona’s focused on authority and ensuring that the “general assembly shall retain its authority to name presidential electors in cases of fraud…”
- In Oklahoma, proposed legislation would have made the legislature appoint electors so long as no federal law requiring voter ID and auditable paper ballots is on the books. If such federal legislation were to be enacted, Oklahoma’s would cease to be in effect.
- Pennsylvania has several pending resolutions (including HR 7, HR 8, SR 9 and SR 10) disputing the 2020 presidential election result and calling on the Legislature to appoint electors—though none of these seek to make any permanent changes to the state’s presidential elector selection process.
Adopting the Congressional District Model for Selecting Presidential Electors
Given how clear the Constitution is that legislatures can decide the “manner” for appointing presidential electors, it may be surprising that there isn’t more variation. For decades, 48 states have awarded all electors to the winner of the popular vote within the state. Maine and Nebraska have been doing it otherwise since 1972 and 1992, respectively. They award one elector to the winner in each congressional district plus two that go to the state’s popular vote winner.
This year, several states have considered changes. Nebraska had a bill to scrap the congressional district method, while 12 other states have bills to move to the congressional district method. None has been enacted so far, and most have died. Nor have any of the 32 bills to join the National Popular Vote Interstate Compact been enacted this year.
Changing Ballot Collection Laws
Twenty-two bills in 15 states aim to define, or limit, who can collect and drop off a voter’s voted ballot. Legislation has passed in Iowa and Montana so far. These bills prohibit anyone, such as political operatives, from collecting and returning ballots, although most include an exception for family members. Pending legislation in Rhode Island would also limit who can return another person’s ballot by mail.
Allowing just anyone to return a ballot raises concerns about election fraud. In 2018, the election for North Carolina’s 9th Congressional District was overturned based on an absentee ballot scheme run by a campaign operative. Neither party wants to see this kind of action again.
Of course, a lack of transportation or limited mobility can make it difficult for a voter to physically return a ballot themselves, and some voters—such as those living on reservations or in long-term care facilities—have often relied on others to return their ballots.
Establishing Laws on Ballot Drop Boxes
Prior to the 2020 election, only states that had a substantial absentee/mail voting record had any statutory guidance on ballot drop boxes. They ranged from deep details on security in California to Montana, where the law essentially says “do it.”
That’s changing this year, with bills addressing whether states can provide drop boxes, their locations and necessary security measures. Legislation cropping up would prohibit drop boxes (pending in Louisiana) and to require them (failed in Maine; pending in New Jersey).
Two significant enactments include those in Georgia and Iowa, which stipulate how many drop boxes may be provided. While opponents say these are efforts to limit drop boxes, proponents see them as creating state policies for the first time.
After the California Republican Party caused a controversy by providing unofficial ballot drop boxes, New York and Washington have three pending bills that seek to ensure that only election boards or offices could establish drop boxes.
Clarifying Laws on Poll Watchers
For decades, each party, and sometimes each candidate, has had the right to send partisan poll watchers to observe elections. Until this year, their role has not been a hot topic, legislatively speaking. The numbers show it’s heating up: In 2015, 17 bills in 11 states related to poll watchers; in 2017, it was 25 bills in 13 states, followed in 2019 by 30 bills in 13 states. This year: 73 bills in 21 states.
The increased interest is partly because laws on the books were intended for Election Day in-person voting. With more people opting for early in-person voting or absentee voting, the action that warrants observing is no longer all on one day. Most of this year’s crop of bills are aimed at clarifying the rights of poll watchers, and in particular, to ensure they can observe absentee vote counting. Legislation on this last point has passed in Florida and Montana.
Establishing Voter ID for In-Person Voting
Voter ID was the headline elections policy in 2011, 2012 and 2013, and has never really gone away. Still, 2021 stands out from the last several years because of several significant enactments. Wyoming adopted an ID requirement for the first time, leaving Nebraska as the lone Republican-led state without a requirement (or request) that a voter show some form of identification at the polls. That could change this year, as the Cornhusker State considers a resolution that would create a constitutional amendment to allow a voter ID requirement. If enacted, the amendment would go to the voters in 2022. Session ends on June 10, so we’ll be watching closely.
Montana tightened its voter ID laws, requiring those without a state, military or tribal photo ID to provide a second form of identification. The new law is the subject of a lawsuit brought by the Montana Democratic Party. After a number of court challenges through the last decade, Arkansas made its law stricter, removing the sworn affidavit as an alternative to presenting a photo ID at the polls and limiting situations in which voters may cast a provisional ballot.
“In most instances, I think that it is difficult for the lay person, or even many longtime elected officials, to tell the difference between the good and bad apples in this basket,” says Michael Behm, co-chief executive officer and principal at Stateside. “That enables both parties and a range of interest groups to spin election and voting legislation to their advantage (or disadvantage of their opponents).”
It’s no surprise, then, that election headlines and hot takes are all over the map. But if there’s one clear theme of this year’s legislation, it’s that most of 2021’s election legislation has little to do with the voter experience and a lot to do with legislatures asserting themselves—exploring ways to increase their oversight of local election officials, the presidential elector selection process, how elections are funded and more. That goes hand in hand with efforts to expand legislative oversight of executive emergency powers, regarding elections (as we reported last month) and more generally.