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Voting Laws Roundup 2020

Legislatures largely made it easier for voters to cast their ballots this year, but a backlash against voting access is expected in 2021.

Published: December 8, 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_0ts2c2g 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-19Cali­for­nia, 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_3611xl4 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_i2xq5xh 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_rk1a8li 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_hj70hgw 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_nukruw5 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_1jzspd2 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_p6n8z74 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_7bi5e47 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.

End Notes