Voting Laws Roundup 2020

The start of 2020 state legislative sessions has been marked by a flurry of activity around pro-voter reforms, particularly in states with Democratic control over both chambers of the legislature and the governor’s office (i.e., where there is a Democratic trifecta).

New Jersey, for example, enacted three bills in January to establish online voter registration, end prison-based gerrymandering, and create more transparency around district boundaries.

Virginia legislators seek to enact a broad-based, pro-voter agenda, and the commonwealth accounts for nearly a quarter of the expansive bills introduced in 2020. Virginia Democrats hold full control over state government for the first time in more than two decades.

Legislators in two other Democratic trifectas—New York and Washington—expect to pass automatic voter registration (which has already passed the New York Senate) and rights restoration (which has moved out of a Washington Senate committee).

Of the 40 states that have opened their regular legislative sessions, 29 states have introduced at least 188 bills to expand access to the franchise, primarily by making registration easier and reducing restrictions on absentee voting.  footnote1_d5suy47 1 Alabama, Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wyoming.  We estimate that most of the 188 new expansive bills, if enacted, would go into effect by or before Election Day, November 3. When combined with bills carried over from last year, the new bills bring the total of expansive bills currently before state legislatures to 471.  footnote2_u7ksnof 2 The following states carried over expansive bills from last year’s sessions: California, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Nebraska, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Vermont, Washington, and Wisconsin.

Still, there are parallel efforts to restrict voting access. Legislators have introduced at least 35 bills that would restrict access in 15 states.  footnote3_npo5wyr 3 Arizona, Florida, Hawaii, Illinois, Iowa, Kentucky, Maryland, Mississippi, Missouri, Nebraska, New Jersey, New York, Oklahoma, Virginia, and Washington.  Thus, when combined with bills carried over from last year, there are currently 57 restrictive bills before state legislatures.  footnote4_u1lcdld 4 The following states carried over restrictive bills from last year’s sessions: Alaska, California, Illinois, Iowa, Kansas, New York, North Carolina, Ohio, Pennsylvania, and Tennessee.

We estimate that most of the 35 new restrictive bills, if enacted, would go into effect by or before Election Day in November. Unsurprisingly, a substantial portion of these bills seek to impose stricter voter ID requirements. And, building off a resurgence of efforts to limit voter assistance (which coincides with the growing use of absentee and mail-in ballots), legislators in three states—Florida, Oklahoma, and Hawaii—have introduced bills that would limit who may assist voters in applying for and delivering absentee and mail ballots. In addition, legislators in two states, Florida and New Jersey, have introduced bills that would require election administrators to affirmatively undertake steps to purge supposed noncitizens from the rolls, and they would use flawed data regarding citizenship to do so.

Of course, these bill counts do not capture all efforts to restrict or expand access to the vote – there is significant action occurring outside of state legislatures. For example, voting rights are being threatened by non-legislative actions, like voter roll purges. In December, Georgia purged over 300,000 voters from its rolls on the basis of their inactivity, and Wisconsin may purge more than 200,000. At the local level, activists have sent a series of letters to dozens of local election officials threatening them with legal action if they do not undertake more aggressive purges (ripping a page out of the 2017 voter suppression playbook).

Finally, following the election security concerns that surfaced in the 2016 election, we continue to see legislative activity around this issue, though few of these policies are likely to have an impact before the 2020 election. Thus, as of February 3, 15 states  footnote5_wmxuqe5 5 Arizona, California, Florida, Hawaii, Idaho, Indiana, Iowa, Kansas, Maryland, New Jersey, South Carolina, Tennessee, Utah, Virginia, and Washington.  have introduced bills related to election security, and 11 states footnote6_l3p3l4b 6  Georgia, Illinois, Iowa, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Washington.  are still considering 46 carry-over bills related to election security. Note, however, that this count does not include appropriations bills or administrative action – two important tools for improving election security.

Overview of Expansive Bills

As of February 3, 2020, legislators had introduced at least 188 bills expanding access to the franchise in 29 states.

The bulk of pro-voter bills introduced this year aim to reform registration.

• Registration Reforms
  • AVR (Ten states). New York is poised to pass automatic voter registration (“AVR”). Indeed, on its first day in session this year, the New York Senate passed an AVR bill carried over from 2019. AVR is a transformative reform that registers eligible voters unless they “opt out” of registration and leverages existing technology to more efficiently update the voter rolls. Ten other states—Hawaii, Idaho, Iowa, Kentucky, Mississippi, Missouri, New Jersey, Oklahoma, Virginia, and Washington—have introduced 20 bills this year that would implement or strengthen AVR. Like New York, Arizona is also advancing an AVR bill carried over from last year. Sixteen states and the District of Columbia have already approved automatic voter registration. 
  • Same Day Registration (Seven states). Florida, Hawaii, Indiana, Kentucky, Missouri, New Jersey, and West Virginia have introduced bills that would allow voters to register on Election Day.
  • Pre-Registration (Five states). Hawaii, Indiana, Kentucky, Virginia, and Washington have introduced bills permitting minors to pre-register to vote prior to their eighteenth birthdays. Virginia’s pre-registration bill is expected to pass, but—because the provision seeks to amend the state’s constitution—the bill would need approval from both chambers again next year, before going to the voters.
  • Portability (Three states). California has introduced a bill that would allow voters to update their registration or change party affiliation from the fourteenth day before election to the close of polls on Election Day. West Virginia has introduced a bill that would permit voters to update their address when voting early in-person and vote without challenge. Hawaii has introduced companion bills that permit voters to change their registration information seven days before an election (instead of 14) and still receive mail ballots.
• Absentee Voting (Thirteen states). Alabama, Indiana, Iowa, Kentucky, Maine, Mississippi, Missouri, New Jersey, Oklahoma, Tennessee, Virginia, West Virginia, and Wyoming have proposed 45 bills collectively that would ease restrictions on absentee voting, with most bills aimed at removing the requirement that voters establish an excuse before they can vote absentee. One of the bills out of Virginia would permit voters who are confined while awaiting trial or for a misdemeanor conviction to vote absentee as an exception to the requirement that first-time voters who registered by mail must vote in person.
• Re-enfranchising persons with past convictions (Eleven states). Washington (SB 6228), Florida, Iowa, Kentucky, Mississippi, Missouri, Nebraska, New York, Oklahoma, Tennessee, and Virginia have introduced bills to grant greater access to the ballot for individuals with criminal convictions. These bills come on the heels of rights restoration laws enacted in 2019 in Nevada, Colorado, and New Jersey. The 2020 bills in Kentucky, Virginia, and Nebraska aim to amend the state constitutions, though Kentucky and Virginia already restore voting rights by executive action. Florida legislators have introduced a bill that would eliminate the requirement that returning citizens pay off all court costs, fees, and fines before their rights are restored (though the prerequisite of paying off restitution obligations would remain). The Brennan Center and allies have challenged in federal court the current Florida statute that makes voting contingent on the payment of legal financial obligations limitations.
• Early Voting (Twelve states). Alabama, Arizona, Kentucky, Maryland, Mississippi, Missouri, New Jersey, New York, Oklahoma, Tennessee, Virginia, and West Virginia have introduced bills expanding opportunities for early in-person voting.
• Easing Voter ID Restrictions (Eight states). Virginia, Indiana, Iowa, Missouri, New Mexico, South Dakota, Tennessee, and Wyoming have introduced bills easing the burden of existing voter ID laws, such as making it acceptable to use other forms of identification (e.g., university or tribal IDs), removing the requirement that an ID contain a photograph. Virginia has introduced seven different bills that would eliminate entirely or ease its photo ID requirements.
• Access for People with Disabilities (Three states). Kentucky, Maryland, and Missouri have introduced bills to improve access for voters with disabilities.
• List Maintenance (Two states). Missouri has introduced a bill that would extend the time during which a voter must be inactive before the voter’s registration can be cancelled. Mississippi has introduced a bill that would prohibit the state from purging voters within 120 days of an election.

Overview of Restrictive Bills

As of February 3, 2020, legislators had introduced at least 35 bills restricting access in 15 states. The vast majority of these bills impose stricter voter ID or absentee voting requirements.

The restrictions introduced this year include:

• More Restrictive Voter ID (Nine states). Arizona has introduced a bill that prohibits the use of school IDs for voter verification and eliminates the ability to use other identity verification documents; Kentucky, Illinois, Maryland, Nebraska, and New Jersey have introduced bills imposing photo ID requirements to vote (the MD, IL, and NJ requirements would be especially strict); New York has proposed a bill that would require proof -of -citizenship to register to vote; Oklahoma has proposed a bill that would require fingerprinting upon registration to vote; and Missouri has proposed a bill that would eliminate the possibility for those without ID to submit an attestation and then vote using a regular ballot.
• More Burdens on Absentee Voting (Five states). Virginia has introduced three bills increasing burdens related to overseas absentee voting. Kentucky has introduced a bill that would require voter ID at the polls (as noted above) and that applications for an emergency absentee ballot be accompanied by proof of ID.
• Limitations on the Assistance of Voters (Three states). Florida, Hawaii, Oklahoma have introduced bills limiting those who may assist with or deliver vote-by-mail or absentee ballots. A Florida bill, for example, would limit who may be designated to pick up and deliver a voter’s mail-in ballot to the elector’s caregiver, household member, immediate family member, or legal guardian. Currently, any person could assist in picking up a voter’s ballot, so long as that person didn’t pick up more than two vote-by-mail ballots.
• Aggressive Prosecution (Three states). Florida and New Jersey have introduced bills that make it a felony to collect the ballot of another if the person collecting the bill is not the kind of person specifically authorized to do so. New York has introduced a bill that would make it a felony for a person to register or attempt to register to vote if the applicant is not a U.S. citizen, without a knowledge (or, mens rea) requirement.

Overview of Election Security Bills

Fifteen states have introduced bills related to election security thus far this year. Note that these bills do not include appropriations bills or administrative action, nor is the Brennan Center opining on the impact or potential efficacy of these bills in this document.

Fourteen states seek to make some improvements to election security. For example, three states would create offices related to election security or grant existing bodies more authority over election security. (CA SB 808, NJ AB 291, and VA HB 539). Five states have introduced bills related to audits, addressing procedures, paper ballots, and technology acquisition. (IA LD 5426, KS SB 310, SC HB 4725, TN HB 1863, and WA SB 6412). Legislatures in Maryland (HB 392), Utah (SB 42), Arizona (SB 1135), and Indiana (SB 179) have introduced measures related to manufacturing voting equipment in the United States, protecting voters’ signature on mail ballots, and guidelines for electronic vote adjudication and the use of batteries in voting systems.

But legislators in one state—Florida—have introduced a bill that would undermine security. Florida’s HB 1005 / SB 1312 would result in an end-run around certification processes for voting systems in the state by permitting a single proprietary software to be used for recounts. Florida election security advocates oppose the bill because it risks exposing Florida recounts to interference.

For more information, please visit our State Voting Laws project.