With 2,099 election bills introduced nationwide and 258 enactments, the 2023 session was a whirlwind tour of election legislation.
“That’s a lot,” Wendy Underhill, NCSL’s director of elections and redistricting, told a session at Base Camp 2023. She noted that the numbers have spiked in recent years, especially after the presidential election in 2020. “The high-water mark was in 2021.”
Underhill and Katie King, NCSL elections and redistricting policy analyst, led the session with Thomas Hicks, commissioner for the U.S. Election Assistance Commission. Here are the trends they see emerging from this year’s legislative sessions.
Absentee and Mail Voting
“This has been a huge topic, particularly since the 2000 election,” says Underhill. “It comes first alphabetically and it also comes first in terms of our priority setting for what mattered in the states this year. Although no state adopted no-excuse absentee voting or moved to a mostly mail election process this year, as some states have done in recent years, “we saw lots and lots of amendments to the specifics of how elections are run,” she says. That means plenty of new processes regarding deadlines, processing, ballot curing and other aspects of voting by mail.
Hicks points out that absentee voting has been a part of the country’s elections since the 1860s. “It’s been tweaked, and a lot of things have been added to it,” he notes. “Under the Help America Vote Act, it allowed for a little bit of an expansion, but if you voted by mail for the first time using vote by mail, you had to include some form of ID with that as well. So there are safeguards that were put in place to ensure one vote, one person.”
Ballots, Technology and Cybersecurity
“Arkansas was a busy state,” Underhill says. “It explicitly spelled out the process for duplicating ballots. Duplicating ballots to a layperson might sound like an awful thing—‘Why would we be duplicating ballots?’—but it’s only in the case where the original ballot has been damaged and can’t be counted as is.”
Other news of note: California prohibited manual ballot counting, Wyoming set minimum standards for certifying voting machines, Michigan enacted a bill to allow the electronic transmission of ballots for overseas voters, and Illinois enacted legislation to study remote voting.
With electronic poll books emerging, the Election Assistance Commission initiated a voluntary pilot program to test their functionality and security, and updated the Voluntary Voting System Guidelines, under which states voluntarily submit machines for certification.
“Unfortunately, it takes some time to develop, build and deploy new voting equipment, so we won’t see new voting equipment under the new 2.0 standards for 2024, but we hope to have machines that are available for testing for ’25 and ’26,” Hicks says.
Candidates and Political Parties
King says numerous states have changed how candidates can qualify for ballots and how information on parties and candidates can be conveyed. “One thing we’ve also seen this year is a debate about whether incumbents could include their incumbent status on the ballot,” she notes. “Previously, it was allowed in California but Assembly Bill 1762 now prohibits it.”
Other new laws in this area are all over the map. “Delaware House Bill 141 tasks the commissioner of elections with reviewing background checks on candidates to determine if they are qualified to run for office,” King says. “And there were changes for write-in candidates in Arkansas, Idaho and Kansas. They’ve changed how to break a tie in Iowa and Delaware. Kentucky, North Carolina and Louisiana have passed laws around vacancies. In Louisiana, a person who resigns or retires can no longer select their own replacement.”
The main issue in 2023 has been a push to prohibit private election funding, King says. “In 2021, 11 states prohibited it. Now we’re up to 24 states.”
Many states also changed how elections are funded, with South Dakota appropriating money for list maintenance and security, and Colorado requiring the state to reimburse counties for costs related to statewide races.
The Election Assistance Commission has provided more than $5 billion in funding to states over the last 20 years, Hicks says, noting that the commission is neutral on the use of private funds. “Over the last three years, we’ve given a billion dollars to the states under the CARES Act funding for the pandemic, but also security funds,” he says. “Last year, we received $75 million from Congress to distribute to the states on a formula basis, which sounds like a lot of money, but once you divide that by the 50 states, five territories and D.C., it does not come out to be a whole lot of money.”
With threats against election officials on the rise, a number of states enacted protections for them in 2023. “This year, Minnesota, Nevada, New Mexico and Oklahoma joined six states that had already made such enactments to provide protections in 2022,” Underhill says. “So that’s 11 states that have done that in the last two years.”
The rancor, she adds, has helped create a labor shortage. “Poll workers have always been a little tricky to find. There aren’t always people who are willing to serve that function, increasing the pay is one thing states can do to encourage people to participate, and Alabama, Arkansas, Louisiana and Maryland all did that this year.
“It’s not always about the money. NCSL has a new report out called ‘Finding—and Keeping—Qualified Poll Workers,’” Underhill says. “What is it that motivates these community-minded people to serve?”
Underhill says the topic du jour from a decade ago has taken a back seat to other trends, but voter ID continues to generate legislative activity. “The big news this year is that Nebraska has a voter ID law,” she says. “That made it the 36th state to request or require an ID to be presented for in-person voting.”
Other new laws focus on what ID is acceptable, Underhill adds. “Wyoming now allows concealed-carry permits to be used for the ID, Idaho no longer allows student IDs but does allow tribal IDs, and Colorado specifically now allows state-approved digital IDs to serve—and I’m sure we’re going to be seeing more of that.”
Eric Peterson is a Denver-based freelance writer.