Voting Laws Roundup: February 2023

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The 2023 legislative sessions have begun in all but two states, footnote1_zrggc3y 1 As of the date of this report, Alabama and Louisiana have not yet started legislative sessions this year. Florida’s regular legislative session begins later this year, but the legislature held a special session in early February. with legislators introducing a record-breaking number of restrictive voting laws.

As of January 25, 2023, state lawmakers in at least 32 states pre-filed or introduced 150 restrictive voting bills. footnote2_qw9jd17 2 Restrictive bills have been pre-filed or introduced in Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. Legislation is categorized as restrictive if it contains one or more provisions that would make it harder for eligible Americans to register, stay on the voter rolls, or vote as compared to existing state law. The 150 restrictive bills represent an increase from the number of restrictive bills introduced at the same time in 2021 and 2022, indicating that lawmakers are using the same playbook from the past two years to make it harder to vote. Restrictive legislation often disproportionately impacts voters of color, and Brennan Center research has demonstrated the outsized racially discriminatory impact even one voting provision can have on voters.

In 2021, states enacted more restrictive voting laws than at any time since we began tracking legislation in 2011, but this year’s increase in the pace of introduction will not necessarily translate into an increase in passed legislation. The start of 2022 also saw more restrictive bills introduced compared to 2021, but fewer bills were passed by the close of the year.

In the first weeks of 2023, at least 27 election interference bills have been pre-filed or introduced in 10 states. footnote3_walzhsq 3 Election interference bills have been introduced in Arizona, Mississippi, Missouri, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Virginia, and West Virginia. Legislation is categorized as election interference if it does one of two things: increases opportunities for partisan interference in election administration or results, or it threatens the people and processes that make elections work. These include proposals to create entities controlled by the political branches of government for the prosecution of election crimes; enable political actors to prompt, initiate, or conduct audits of any election; impose new criminal penalties on election officials for routine election administration; or impose statewide bans on the use of machines to count ballots.

Two of the more radical proposals include a Texas bill that would allow presidential electors to disregard state election results and a Virginia bill that would empower a random selection of residents to void local election results.

There is usually an increase in legislative activity in odd years, when new legislative sessions begin, especially when they precede presidential elections. But there have actually been fewer election interference bills introduced this year than at this time last year. This slower pace may be a response to the outcome of the 2022 midterms, in which voters rejected prominent election denier candidates in battleground states.

At the same time, lawmakers in at least 34 states have pre-filed or introduced at least 274 bills that would expand voting access. footnote4_9g7suq6 4 Expansive legislation has been pre-filed or introduced in Alaska, Arizona, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. Legislation is categorized as expansive if it contains one or more provisions that would make it easier for eligible Americans to register, stay on the rolls, or vote as compared to existing state law. While 274 is less than the number of bills introduced by this time in 2021, it is more than twice the number introduced by this time last year.

As of January 25, legislators in 32 states introduced or pre-filed at least 150 restrictive voting bills, and New Jersey carried over 23 such bills from last year. footnote1_tsxefgl 1 Most state legislatures begin in odd years, but the New Jersey and Virginia legislatures begin in even years. New Jersey carried over a number of restrictive and expansive bills from last year. This far exceeds the 104 restrictive bills introduced in 29 states at this time in 2021 — a record-breaking year for restrictive legislation. Although there is an increase in restrictive legislation across the country this year, no restrictive voting bills have been introduced in Georgia so far, a state that was a focal point for enacting restrictive legislation in recent years and enacted four election interference laws last year. [Editor’s note: After January 25, the end date for bills included in this edition of the Voting Laws Roundup, a restrictive voting bill was introduced in the Georgia legislature. That bill is not included in this edition’s data.]

In line with legislative trends from the past two years, more than half of the restrictive voting bills (80) introduced thus far would limit access to mail voting. This year differs from recent years in that lawmakers are also introducing a significant number of voter ID bills (51), including bills that would require voters to present photo identification or documentary proof of citizenship. Other bills would risk faulty voter purges and restrict early voting, either by shortening the early voting period or eliminating it altogether.

Restrictions on Mail Voting

Despite the proven security and safety of voting by mail, some state lawmakers continue to further restrict this form of voting. The trend began in the 2021 legislative session amid the backlash against the successful expansion of mail voting during the pandemic, fueled by false claims that mail voting is a vehicle for widespread voter fraud. At least 80 bills in 23 states would restrict mail voting in various respects, making it harder to request and cast a ballot or have that ballot be counted. footnote2_178e0ta 2 Alaska, Arizona, California, Connecticut, Indiana, Kansas, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Texas, Virginia, West Virginia, and Wyoming. The proposals would impose new limits on who is eligible to vote by mail, set new identification requirements for requesting and returning mail ballots, shorten periods for applying for or returning mail ballots, eliminate permanent absentee voter lists, and eliminate or limit the use of drop boxes.

Stricter Voter ID

So far this year, 22 states have proposed 51 bills to impose new or more stringent voter ID requirements for voter registration or in-person voting. footnote3_3569g01 3 Arizona, Connecticut, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, South Dakota, Texas, Virginia, Washington, West Virginia, and Wyoming. This trend is linked to efforts to curb widespread voter fraud, which doesn’t exist. Strict voter ID requirements, including photo ID requirements, have historically disproportionately affected voters of color, voters with disabilities, and low-income voters who can face significant obstacles to obtaining photo identification. At least 32 of these bills would require voters to present a photo ID to vote at the polls.

There are several photo ID bills pending in Nebraska, where voters in the 2022 midterm election approved a ballot measure authorizing the legislature to require photo ID for voting without specifying the contours of the requirement. footnote4_bx8nt0p 4 NE L.B. 230, NE L.B. 535, NE L.B. 675, NE L.B. 742. Not surprisingly, some of the proposals do not seek the least restrictive approaches to voter ID. For example, one of the bills would require voters to show photo IDs issued only by the federal or state governments or tribal authority (and not local governments) and be unexpired or within 60 days of expiration. Voters who lack acceptable ID on Election Day can only have their ballots counted if they return with such ID within a specified time frame. Two other bills each provide much greater latitude in the forms of photo identification that can be provided and their expiration dates.

Also among the 51 restrictive voter ID bills are at least 13 bills that would require voters to provide documentary proof of citizenship to cast a ballot or to register to vote. For example, a New York bill would require first-time voter registration applicants to submit an original or certified copy of a birth certificate, a valid U.S. passport, or a certificate of naturalization or citizenship. footnote5_m4hrbcn 5 This bill appears to respond to a New York City Council measure passed in 2021 that would have allowed residents who are not citizens to vote in local elections. The measure was struck down by the New York Supreme Court last year. Two North Dakota bills would require proof of citizenship to vote at a polling location. Documentary proof of citizenship bills are often justified by false claims of widespread voting by people who are not citizens. Such legislation can invite discrimination at the polls or disenfranchise significant numbers of eligible voters as official citizenship documents can be expensive and time-consuming to obtain.

As of January 25, at least 27 election interference bills were introduced or pre-filed in 10 states. footnote1_e7fl2fw 1 Additionally, FL S.B. 4B, a bill introduced after the cutoff date of this report, has been signed into law and will expand the authority of statewide prosecutors to investigate and prosecute voting-related crimes. The law is an attempt to circumvent Florida courts’ rulings that the Office of Statewide Prosecution lacks the authority to prosecute some of the arrests made by the state’s election police unit. Though many prominent election denier candidates who spread lies about voter fraud and election irregularities lost their bids for office in the 2022 midterms in crucial battleground states, the movement to undermine elections continues in some state legislatures. Leading the tally is Texas, whose legislature did not meet in 2022, with five election interference bills introduced.

Bills to Allow Partisan Actors to Overturn Election Results

Two bills in Texas and Virginia would provide new opportunities for presidential electors or citizens, respectively, to overturn election results. footnote2_7i66t2q 2 TX H.B. 87, VA S.B. 1316. The Texas bill would impose a novel roadblock to election certification by requiring a winning candidate for president or vice president to certify, prior to the Electoral College vote, that they are willing and able to serve in the position. If a winning candidate does attest to this, their presidential electors must still vote to affirm or deny the candidate’s willingness and ability to serve before casting their votes for the candidate. If a majority of electors deny the candidate’s ability to serve, the rules requiring the electors to cast their ballots for the nominees for president and vice president of the party that nominated them do not apply. In effect, this bill appears to allow electors to reject their party’s candidate.

The Virginia bill would allow citizens to demand a so-called “forensic audit” footnote3_ozjcyu2 3 “Forensic audit” is a manufactured, undefined term. Calls for such audits are vague and lack standardization and accountability. of election results at the request of an elected official, an election worker, or a petition signed by at least 1,000 residents. After the audit is conducted, the bill would empower a random selection of the locality’s residents to void election results, with vacancies to be filled by interim court appointments and new elections. This same bill also mandates an audit of the 2020 election.

Bills to Impose or Increase Likelihood of Civil or Criminal Penalties for Routine Election Activities and Human Error

Legislation proposed this year would expand the criminalization of election-related activity and empower partisan actors to enforce those provisions.

Bills Politicizing Law Enforcement Authority Related to Elections

Three bills in Texas would politicize law enforcement’s authority for election matters. Two bills that were discussed in the December voting roundup would shift criminal law enforcement responsibilities to the secretary of state’s office by empowering the secretary to appoint election marshals tasked with investigating violations of election law and filing criminal charges. footnote4_kdu90n6 4 TX H.B. 549, TX S.B. 220. A third Texas bill would require local district attorneys to prosecute all election crimes or face civil penalties. footnote5_1jax4kc 5 TX H.B. 125. Such proposals shift criminal law enforcement away from prosecutors, who operate independently from the political branches of government.

Two similar bills were enacted in 2022 in Florida and Georgia. In Florida, the new election crimes office quickly demonstrated the harms of politicizing law enforcement in elections. Five days before the 2022 primary, the governor announced a series of arrests of people with past criminal convictions for allegedly registering to vote or voting in the 2020 election while ineligible. These prosecutions targeted people whose eligibility was made nearly impossible to determine by the state, not cases of deliberate voter fraud.

Bills Imposing New Criminal or Civil Penalties on Election Officials

At least 16 bills in 8 states would impose new criminal or civil penalties on election officials for routine election activities or human error. footnote6_ilbtif7 6 AZ H.B. 2078, MS H.B. 1308, MS H.B. 1309, MS H.B. 1311, MS S.B. 2833, MS S.B. 2502, MS S.B. 2505, MO S.B. 235, NE L.B. 230, NE L.B. 742, OK S.B. 1013, OK H.B. 2504, OK S.B. 995, SD S.B. 82, TX H.B. 589, WV H.B. 2866. As discussed before, at least two bills in Arizona and Texas would allow partisan actors to trigger an audit process that could result in civil penalties on election officials. footnote7_ddnob35 7 AZ H.B. 2078 and TX H.B. 589. A Nebraska bill would subject an election worker to a misdemeanor for each time they fail to ask for and verify a voter’s photo identification. footnote8_k4mrwtu 8 NE L.B. 230. Three bills in Oklahoma, South Dakota, and West Virginia would subject election workers to criminal or civil penalties for failing to allow poll watchers increased latitude to observe election processes. footnote9_568k65n 9 OK S.B. 995, SD S.B. 82, WV H.B. 2866. Such proposals disempower election officials from removing disruptive poll watchers and may have a chilling effect on election workers. A similar law was enacted in Texas in 2021 and is currently the subject of litigation brought by the Brennan Center and other organizations.

Bills to Initiate Biased Election Reviews

Lawmakers this year have introduced at least five bills in five states that would permit biased election reviews. footnote10_fb3gbb4 10 AZ H.B. 2078, MS H.B. 1307, MO S.B. 98, TX H.B. 589, VA S.B. 1316. These reviews would lack transparency and fail to satisfy basic security, accuracy, and reliability measures. While no biased election review bills were enacted last year, this legislation is part of a continued movement in state legislatures to undermine public faith in the electoral process.

Two bills in Arizona and Texas allow for partisan actors to trigger a vague audit process that could lead to civil penalties on election officials. Both AZ H.B. 2078 and TX H.B. 589 would empower candidates or political party representatives to demand that a local election official provide an explanation and documentation whenever a candidate believes the official violated the election code or that there are “irregularities” in the results. The bills fail to define “irregularities.” If the partisan actor is not satisfied with the county local official’s response, they may request an audit by the secretary of state, who may ultimately assess civil penalties on the local official for any unremedied violations of the election code.

Two bills in Missouri and Virginia would grant citizens the ability to initiate election reviews. footnote11_cxcwp01 11 MO S.B. 98, VA S.B. 1316. The Missouri bill would allow any registered voter to contest election returns on the basis that irregularities occurred. Previously, only candidates could challenge election results and only for the office for which they ran. The proposal would heighten the risk of baseless election reviews undermining public faith in elections.

Bills to Require Hand-Counts

At least five bills in four states would prohibit the use of machines to conduct initial counts of ballots for any election. footnote12_zrlmtj7 12 AZ H.B. 2232, AZ H.B. 2307, MO S.B. 98, SC H.B. 3162, VA S.B. 884. One Arizona bill would require hand-counts of all Election Day ballots to be completed within 24 hours after polls are closed. Hand-counts in all but the smallest of jurisdictions are slow and extremely error-prone. A recent push for hand-counting ballots is motivated by the false conspiracy theory that voting machines are inaccurate or easily manipulated. While full hand-counts of an individual close contest can help discern each voter’s intent, and partial hand-counts are an important part of routine postelection audits of voting machine accuracy, laws requiring complete hand-counts would result in far more errors than vote-tabulating machines and could lead to lengthy delays in certifying election results.

As of January 25, 34 states pre-filed or introduced 274 expansive voting bills, and New Jersey carried over 24 such bills from last year. The majority of expansive bills introduced this year focus on expanding access to voter registration, improving access to mail voting, and restoring voting rights to people with past criminal convictions. Other bills would expand or establish early in-person voting opportunities or increase the number of acceptable forms of voter ID.

In Minnesota, the legislature has made voting access a priority, with at least 17 bills —including omnibus legislation — that would expand access to voting in multiple ways, such as restoring rights to people on supervised release, footnote1_g7ga3hf 1 MN H.F. 28, which restores the right to vote to individuals with felony convictions upon release from incarceration, rather than upon completion of supervised release, has already passed the house and is before the senate. establishing automatic voter registration, establishing a permanent absentee voter list, and expanding access to voting materials in non-English languages.

Bills to Expand Access to Voter Registration

Unlike in the past two years, increasing access to mail voting is not the central focus of lawmakers seeking to expand voting access. Instead, bills that would expand access to voter registration are more common, constituting about a third of all expansive legislation proposed thus far this year. At least 88 bills in 21 states would expand voter registration opportunities. footnote2_ifk4z3i 2 Alaska, Arizona, Hawaii, Illinois, Indiana, Kansas, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Washington, and West Virginia. Among other things, the voter registration bills would establish or expand automatic voter registration, establish Election Day registration, expand registration opportunities for eligible students in high school or college, and establish online voter registration.

Bills to Improve Access to Mail Voting

At least 67 bills in 25 states would expand access to mail voting. footnote3_3p7i604 3 Alaska, Arizona, California, Connecticut, Illinois, Indiana, Kansas, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, South Dakota, Texas, Utah, Virginia, and West Virginia. Some of these bills expand the categories of who can vote by mail, including at least 8 bills in Connecticut, Missouri, New York, and West Virginia that would establish no-excuse mail voting. Additionally, at least 12 bills in Alaska, Massachusetts, Minnesota, Nebraska, New York, Oklahoma, and West Virginia would create a permanent absentee voting list. Other bills would establish a notice and cure process for issues with mail ballots, provide online opportunities for applying for and tracking mail ballots, and provide prepaid postage for returning mail ballots.

Bills to Restore Voting Rights to Individuals with Past Convictions

This year, at least 62 rights restoration proposals have been introduced in 14 states. footnote4_wutppyh 4 Arizona, Illinois, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New York, Oklahoma, Oregon, Tennessee, Texas, Virginia, and West Virginia. Bills in Arizona, Illinois, Massachusetts, Missouri, Nebraska, and New York would restore voting rights to people with felony convictions, regardless of incarceration status, with narrow exceptions. footnote5_yobm585 5 For example, MO H.B. 642 would continue to disenfranchise individuals convicted of voting-related felonies and misdemeanors. Bills in Minnesota, Missouri, Texas, and West Virginia would restore the right to vote to those on probation or parole after a felony conviction. And bills in Tennessee, as well as legislation in Virginia, would automatically restore voting rights rather than require people to apply for restoration (Tennessee) or obtain approval from the governor (Virginia).

At least 35 bills in 12 states address the processes required to get a proposal on the ballot or pass a measure. footnote1_9dxe5el 1 Ballot measure bills have been proposed in Arizona, Arkansas, Hawaii, Indiana, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Rhode Island, and Utah.

Ballot initiatives can provide a direct opportunity for voters to weigh in on state law. While most proposals to alter the ballot measure process would make minor revisions — such as regulating the information contained in ballot petitions — some could considerably impact voters’ ability to influence state law. For example, a handful would establish a people-led initiative process for the first time.

However, state legislatures in Arizona, Missouri, and North Dakota have proposed at least seven bills that would make the initiative process harder. The proposals would either increase the threshold for signatories needed for a people-led initiative to be placed on the ballot (Missouri and North Dakota) or increase the threshold number of voters required for a ballot measure to be approved (Arizona and Missouri). A Mississippi bill would reinstate the state’s ballot initiative process after it was blocked by the state supreme court in 2021, but the bill would eliminate voters’ ability to initiate ballot measures to amend the state constitution and would create a lengthy process for citizens to propose legislation to be placed on the legislative calendar for consideration. footnote2_8ep11bz 2 MS S.B. 2638.