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AI, Electoral Count Reform Emerge as Elections Policy Priorities

Forecast ’24: Artificial intelligence, voter list maintenance and the Electoral Count Reform Act join evergreen issues such as poll worker recruitment and election security.

By NCSL Staff  |  November 28, 2023

In any sentence containing the phrase “2024 elections,” the word “presidential” is almost certain to be found. 2024 is indeed a presidential election year, with the race for commander in chief the headline and over 6,000 legislative races down ballot.

Before that contest occurs, though, lawmakers will use their upcoming legislative sessions to focus on election policy. Every year, states and territories enact 300 laws, give or take, relating to election policies and procedures, and the “continuous improvement” trend of the last 20 years is likely to continue into 2024. On legislative to-do lists will be evergreen issues such as poll workers (qualifications, training and pay), deadlines (for voter registration, absentee/mail voting and ballot counting), security and voting itself.

But we can add to that list a few emerging priorities: artificial intelligence, voter roll maintenance and the Electoral Count Reform Act. Here’s a look at what’s in store for 2024.

NCSL Forecast ’24

This special report from State Legislatures News covers the topics NCSL’s policy experts anticipate will occupy state lawmakers’ time in 2024 legislative sessions. Read the full report here.

Hot Topic: Regulating Artificial Intelligence

Artificial intelligence is new but change in how campaigns operate is not. Candidates and campaign staff have always adapted to new technologies: Political TV ads popped up in the mid-20th century; more recently, anonymous cryptocurrency contributions became an option. With the emergence of multiple AI tools that can produce realistic images, videos and voices in a matter of seconds, campaigns are adjusting, and states may consider adjusting as well.

ACTION: Despite having little time to prepare, some states have acted already, approaching the issue in one of two ways. First, a handful of states have chosen to prohibit altogether the use of AI to influence elections; this is the “just say no” approach to cloning legislators’ and candidates’ images and voices to generate fake content. Second, other states have mandated disclosure on political communications that contain content generated or edited by AI. Disclosure gives voters an indication of what is real while allowing campaigns to explore potential uses to better communicate their messages. In 2024, more states may enact these or other as-yet-unimagined AI policies.

Hot Topic: Ensuring Clean Voter Rolls

Maintaining accurate voter registration lists protects against fraud, helps with election budgeting, decreases wait times at polls and simplifies post-election processes. All states clean their voter rolls based on in-state data and, sometimes, data from the U.S. Postal Service and the Social Security Administration; about half the states swap data with one another through an interstate compact, the Electronic Registration Information Center, also known as ERIC.

Since 2022, nine states have left ERIC, while two states seem poised to join. ERIC continues to provide its 24 member states and Washington, D.C., with reports based on comparisons of members’ registration lists, along with a host of other data sources, while maintaining confidentiality. The states, not ERIC, are responsible for investigating and potentially removing expired listings.

ACTION: States that left ERIC in 2023 are making individual agreements with one another. In 2024, there will surely be more action on this front. In the meantime, improving voter list maintenance with in-state data sources is always ripe for legislation.

Hot Topic: Complying with the Electoral Count Reform Act

President Joe Biden signed the federal Electoral Count Reform Act, or ECRA, into law in December 2022. The law, which passed with bipartisan support, updates the Electoral Count Act, an 1887 statute governing the Electoral College.

Ongoing calls to update the 19th-century legislation intensified after the 2020 election, when uncertainty over the bounds of state and congressional authority to submit and accept slates of electors prompted significant debate. ECRA resolves these issues by requiring presidential electors to meet on the first Tuesday after the second Wednesday in December and clarifies that the vice president’s role in certifying elector slates is purely ceremonial. It also directs Congress to defer to the states’ slates of electors and requires states to include a “security feature” on the certificate of ascertainment (the official document identifying a state’s appointed electors).

ACTION: As of October 2023, California and Colorado had updated their Electoral College statutes. Whether a state is in compliance with ECRA requires a thorough review by counsel; some states may not need to update their statutes—and that will likely lead to legislation in 2024.

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