Voting Laws Roundup 2020

As with most other areas of public policy, Covid-19 dominated legislative agendas on voting and elections this year. Many states took steps to protect voters and ensure safe and efficient election administration during the global pandemic.

Overall, 29 states and the District of Columbia enacted 79 different bills to expand voting access in 2020. footnote1_1nxp4bh 1 These states include: AK, CA, CO, CT, DE, DC, ID, IL, IA, LA, MA, MI, MS, MO, NE, NV, NH, NJ, NM, NY, NC, OK, RI, SC, SD, UT, VT, VA, WA, WY.  The majority of these bills expanded eligibility for and access to mail voting, while others addressed issues such as early voting, voter registration, polling place standards, and disability and language access. Even during a global pandemic, however, six states enacted laws that restrict voting access.

Looking Forward

To date, only a handful of states have formally introduced voting-related bills for the 2021 session. But even though pre-filing of legislation for 2021 has not begun in earnest in most states, election administrators and legislators have begun discussing their plans for next year.

For example, in Georgia, Pennsylvania, and Texas—states with hotly contested races in 2020 that saw a tremendous amount of litigation and persistent efforts to push back on the right to vote—officials have already proposed restrictive measures. Georgia’s secretary of state has indicated his support for a photo ID requirement for absentee voters and Georgia senators are seeking to eliminate no-excuse absentee voting and drop boxes (among other restrictive measures). Pennsylvania legislators have filed co-sponsorship memoranda proposing a new voter ID law and the repeal of no-excuse mail voting. And Texas lawmakers have pre-filed bills seeking more aggressive purges and enforcement of the state’s voter ID law. If enacted, these provisions could meaningfully restrict access to the ballot box for voters in these three critical states. And we expect the introduction of additional restrictive bills as state legislators across the country use the president’s false claims of fraud as justification for measures that will keep voters from the polls.

Nearly half of the expansive bills passed this year were temporary and will be in effect only through the end of the year. It remains to be seen whether state legislatures will make these reforms permanent. But so far, officials in states like Connecticut and Kentucky have expressed interest in taking some of this year’s pro-voter reforms beyond 2020.

States That Took Substantial Legislative Steps to Support Voting During the Pandemic

Among the 29 states and the District of Columbia that enacted expansive voting laws, seven states stand out for particularly ambitious legislative action to protect the right to vote in the face of significant constraints posed by the pandemic. These measures aimed to smooth election administration and protect voters and election workers from Covid-19. California, Connecticut, Massachusetts, New York, Nevada, Utah, and Virginia all made substantial changes to their election laws this year to preserve safe access to the ballot box.

• California passed legislation to affirmatively mail ballots to all voters and set strict standards for polling place closures. footnote2_5q5kryr 2 CA AB 860, CA SB 423.
• Connecticut passed a broad bill to expand absentee access, allow drop boxes, authorize preprocessing of mailed ballots, and expand options for early in-person voting. Only the early voting provisions, however, are permanent. footnote3_a24ui58 3 CT HB 6002.
• Massachusetts expanded options and eligibility for absentee and in-person early voting, set temporary standards for polling place closures that required election officials to look at disparate racial impact, and mailed absentee ballot applications to all voters. These changes were largely temporary; the only significant permanent reform was the expansion of in-person early voting options. footnote4_zm0bt0c 4 MA SB 2608, MA HB 4820.
• New York made a range of temporary and permanent changes to their mail and absentee ballot processes so that every New Yorker could vote by mail during the pandemic. The permanent changes included a notice and cure opportunity for rejected absentee ballots and a statutory presumption that ballots lacking a postmark were returned on time. footnote5_9utg548 5 NY SB 8370, NY SB 8799, NY SB 8015.
• Nevada enacted new legislation requiring counties to keep a certain number of polling places open and mailed ballots to all voters. Nevada’s automatic voter registration (AVR) and same-day registration (SDR) statutes were also in place for the first time this year. footnote6_ufh3bfs 6 NV AB 4.
• Utah passed a number of permanent reforms in an omnibus elections bill aimed at responding to Covid-19, including creating online voter registration, authorizing mail ballot drop boxes, and expanding the voter registration deadline. footnote7_mz0fucg 7 UT HB 36.
• Virginia took the most ambitious steps to pass expansive legislation. After flipping the state House of Delegates and gaining a trifecta in 2019, Virginia Democrats enacted legislation to adopt automatic voter registration and same-day registration, repeal the photo ID requirement, allow no-excuse absentee voting, create a permanent absentee voter list option, and expand options for in-person early voting. These changes were made largely before the worst impacts of Covid-19 took hold. footnote8_3yrigp7 8 VA SB 219, VA HB 201, VA HB 19, VA SB 65, VA HB 207.

Laws enacted to expand voting access were passed primarily in states where Democrats have full control of state government. (Democrats in Massachusetts have legislative supermajorities that allow them to override the Republican governor’s vetoes.) The notable exception is Utah, where Republicans passed a number of important pro-voter reforms.

Types of Legislation That Enabled Voting During Covid-19

As highlighted below, and contrary to expectations, states with varying partisan makeups also enacted laws to facilitate voting during the pandemic. Indeed, three states with divided government broke years of partisan gridlock on election law issues to pass voting legislation that protected voters from Covid-19: Louisiana, Michigan, and North Carolina.

Louisiana passed 10 bills that included both expansive and restrictive voting provisions. Expansive provisions included allowing preprocessing of absentee ballots, loosening the witness requirement for mail ballots, expanding early in-person voting, implementing standards for closing or consolidating polling places, and increasing poll worker pay. Louisiana also passed two restrictive provisions limiting who could witness absentee ballot applications and allowing police at polling places. Michigan passed four bills, including legislation to allow mail ballot preprocessing the day before Election Day and to create a notice and cure opportunity for mail ballots. North Carolina passed four bills, one of which authorized online mail ballot requests.

Broadly, pandemic-driven voting legislation focused on three themes: expanding access to or altering the mail voting process, instituting new standards for polling places, and strengthening poll worker recruitment.

1. Vote By Mail

• Eight states expanded eligibility to vote by mail. Connecticut, Delaware, Massachusetts, Missouri, New Hampshire, New York, Virginia, and South Carolina all enacted legislation to expand vote-by-mail eligibility in some way. Only Virginia expanded eligibility permanently, and only New Hampshire did so in a divided government.
• Four states enacted new notice and cure processes. Michigan, New Jersey, New York, and Virginia all created or expanded notice and cure processes through new legislation. In contrast to the expanded eligibility statutes, three of these four statutes were permanent reforms. Virginia is the only state of the four that didn’t face litigation in 2020 related to its notice and cure policy (or the absence thereof). And Michigan is the only state of these four without a Democratic trifecta in state government.
• Four states and the District of Columbia provided prepaid postage for all mail ballots. D.C., Maryland, Massachusetts, New Jersey, and Virginia passed new legislation to provide prepaid postage for mail ballots. Only Maryland’s statute was a permanent change.
• Four states extended ballot receipt deadlines. California, Massachusetts, Mississippi, and New York extended their mail ballot receipt deadlines via statute. This lineup of states is notable in that it includes Democratic trifectas, a Republican trifecta, and a state with divided government; however, only New York’s change was permanent.
• Five states permitted preprocessing of mail ballots. Connecticut, Idaho, Louisiana, Michigan, and Vermont passed legislation authorizing election officials to begin processing mail ballots at some point before Election Day. These states represent Democratic trifectas, Republican trifectas, and divided governments.

2. Polling Places

Long lines and confusion during the primary elections conducted during the early months of the pandemic led several states to take legislative action to ensure polling places stayed open during early voting and on Election Day. Nine states and the District of Columbia instituted new standards for polling place closures and consolidations to guaranty a minimum number of polling places remained open. footnote9_6jfj5hi 9 These states include: CA, D.C., DE, ID, IA, MA, NE, NV, PA, and TN. These reforms happened in states with Democratic trifectas, Republican trifectas, and divided government. And most of these reforms were permanent — only D.C., California, and Massachusetts’s legislation was temporary.

• Five states and D.C. set specific quotas for the number of open polling places. These were California, D.C., Iowa, Massachusetts, Nebraska, and Nevada. The most common reform was a statute requiring a specific number of polling places to be open on Election Day. Some states used a raw number, while others used a ratio of registered voters per polling place. Massachusetts’s temporary legislation was unique in that it specifically required election commissioners to consider whether polling place changes would have disparate adverse impacts based on race, national origin, disability, income, or age.
• Four states required election officials to follow specific processes for closing or consolidating polling places. Delaware, Pennsylvania, Tennessee, and Virginia passed legislation requiring election officials to use specific processes and pre-election timelines when closing or consolidating polling places.
• Tennessee and D.C. established notice procedures for election officials when closing or consolidating polling places. These procedures minimize voter confusion by ensuring voters know where to go to vote.

3. Poll Workers

Seven states passed new legislation focused on poll worker recruitment, which became a particular challenge during the Covid-19 pandemic.

• Four states and D.C. relaxed standards for who may serve as a poll worker. D.C., Illinois, Massachusetts, Utah, and Virginia expanded poll worker eligibility requirements by lowering age restrictions or eliminating county residency rules.
• Three states increased poll worker compensation. Louisiana, Mississippi, and North Carolina used legislation to bolster poll worker recruitment efforts by increasing poll worker compensation temporarily.

Restrictive Legislation

Even a global pandemic did not stop some states from passing legislation that restricts access to the ballot box. Six states passed new statutes this year that make voting harder.

• Indiana passed a comprehensive new voter purge statute that violates the National Voter Registration Act.
• Iowa added a new photo ID requirement for early in-person absentee voting.
• Kentucky enacted a photo ID provision after overriding a gubernatorial veto. Gov. Beshear limited the provision’s applicability for the 2020 election with an executive order that allowed voters to sign an affidavit attesting they could not obtain an ID because of office closures or other Covid-19-related issues, but the law is expected to be in full force for the next election cycle.
• Louisiana limited who could serve as a witness for an absentee ballot and placed new limits on third-party mail ballot collection campaigns.
• Oklahoma limited the ability of people to assist other voters in filling out absentee ballot applications. Oklahoma also enacted a new requirement that voters either notarize their absentee ballot or include a photocopy of their ID after a court struck down their original notary requirement.
• Tennessee placed new limits on voter registration drives. Portions of Tennessee’s statute were enjoined by a federal court.