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Voting Laws Roundup: January 2021

After historic turnout and increased mail voting in 2020, state lawmakers across the country are pulling in opposite directions by introducing restrictive and expansive voting legislation.

Published: January 26, 2021

Click here for the most recent Voting Laws Roundup.

Edit­or’s note: A recap of 2021’s voting laws as well as a look at voting legis­la­tion planned for 2022 can be found here.

The 2021 legis­lat­ive sessions have begun in all but six states, and state lawmakers have already intro­duced hundreds of bills aimed at elec­tion proced­ures and voter access — vastly exceed­ing the number of voting bills intro­duced by this time last year.

In a back­lash to historic voter turnout in the 2020 general elec­tion, and groun­ded in a rash of base­less and racist alleg­a­tions of voter fraud and elec­tion irreg­u­lar­it­ies, legis­lat­ors have intro­duced three times the number of bills to restrict voting access as compared to this time last year. Twenty-eight states have intro­duced, prefiled, or carried over 106 restrict­ive bills this year (as compared to 35 such bills in fifteen states on Febru­ary 3, 2020).

Of course, other state lawmakers are seiz­ing on an ener­gized elect­or­ate and persist­ent interest in demo­cracy reform (which is like­wise reflec­ted in Congress). To date, thirty-five states have intro­duced, prefiled, or carried over 406 bills to expand voting access (dwarf­ing the 188 expans­ive bills that were filed in twenty-nine states as of Febru­ary 3, 2020). Notably 93 such bills were intro­duced in New York and New Jersey.

With unpre­ced­en­ted numbers of voters cast­ing their ballots by mail in 2020, legis­lat­ors across the coun­try have shown partic­u­lar interest in absentee voting reform, with more than a quarter of voting and elec­tion bills address­ing absentee voting proced­ures. Only seven of the forty-one states that have intro­duced elec­tion bills have not proposed policies to alter absentee voting proced­ures in some way.

Also in reac­tion to 2020, four states have proposed legis­la­tion that would modify how pres­id­en­tial elect­ors are alloc­ated, and eleven states have intro­duced bills to adopt the national popu­lar vote compact.

Over­view of Restrict­ive Bills

Thus far this year, 28 states have intro­duced, prefiled, or carried over 106 bills to restrict voting access. These propos­als primar­ily seek to: (1) limit mail voting access; (2) impose stricter voter ID require­ments; (3) limit success­ful pro-voter regis­tra­tion policies; and (4) enable more aggress­ive voter roll purges. These bills are an unmis­tak­able response to the unfoun­ded and danger­ous lies about fraud that followed the 2020 elec­tion.

Pennsylvania leads the nation in proposed voter suppres­sion legis­la­tion in 2021, with 14 restrict­ive policy propos­als. New Hamp­shire comes in second (11 bills), followed by Missouri (9 bills), and Missis­sippi, New Jersey, and Texas (8 bills each). Geor­gia lawmakers reportedly plan to intro­duce bills to require an excuse to cast an absentee ballot, mandate photo ID when return­ing an absentee ballot, and ban ballot drop boxes, among other harsh restric­tions.

1. Restric­tions on Mail Voting

More than a third of restrict­ive bills intro­duced this year seek to limit mail voting. Legis­lat­ors are taking aim at mail voting at every stage, with propos­als to circum­scribe who can vote by mail, make it harder to obtain mail ballots, and impose hurdles to complete and cast mail ballots.

Limit­ing who can vote by mail: Five bills in three states foot­note1_cupg­zq0 1 PA, MO, ND.  would make the “excuse” require­ment more strin­gent for absentee voting or elim­in­ate “no excuse” mail voting. The Missouri bill, for example, would elim­in­ate Covid-19 concerns as an excuse (MO SB 282), while three differ­ent propos­als in Pennsylvania seek to elim­in­ate no-excuse mail voting, a policy just adop­ted in 2019.

Making it harder to obtain ballots: Arizona (HB 2370) and Pennsylvania have intro­duced bills that would elim­in­ate the perman­ent early voter list. Two bills in Arizona (AZ SB 1069, AZ HB 2560) and one in New Jersey (NJ AB 4626) would make it easier for offi­cials to remove voters from the perman­ent absentee list. In addi­tion, New Jersey, Pennsylvania, Texas, and Wash­ing­ton are consid­er­ing bills to limit who can send absentee ballot applic­a­tions to voters without an affirm­at­ive request. A New York bill (NY SB 1805) would restrict who can submit absentee ballot applic­a­tions on another voter’s behalf.

Barri­ers to complet­ing or cast­ing ballots:

  • Restric­tions on assist­ance to voters: A single Arizona bill would further restrict who can assist voters in collect­ing and deliv­er­ing mail ballots (exist­ing policy already limits such assist­ance to family and house­hold members), add a voter ID require­ment for turn­ing in mail ballots in person, and require all mail ballots to be notar­ized (AZ HB 2369). Legis­lat­ors in Alaska, Kansas, Kentucky, and Mary­land have proposed bills to strictly limit who can assist in return­ing a voter’s ballot, while a South Caro­lina bill would impose a photo ID require­ment for anyone return­ing another person’s absentee ballot (SC HB 3525).
  • Witness signa­tures: Four states foot­note2_qzty­ffr 2 AK, AZ, SC, VA.  have intro­duced legis­la­tion to make it harder to satisfy exist­ing witness require­ments. Arizon­a’s bill would also require all mail ballots to be notar­ized. South Caro­lin­a’s bill would require a witness to include their driver’s license or state voter regis­tra­tion number, and Virgini­a’s bill would ask witnesses to print their name and provide their resid­en­tial address. The Alaska proposal states that if a court inval­id­ates the witness signa­ture require­ment because of a state of emer­gency, the require­ment goes back into effect after the emer­gency declar­a­tion expires (AK SB 39).
  • Limit­a­tions on absentee ballot return options: A Virginia bill would prohibit absentee ballots from being returned to any loca­tion except the office of the general regis­trar, thus preclud­ing the use of ballot drop boxes (VA SB 1459).

In addi­tion to restric­tions target­ing voters, other bills have proposed limits on ballot count­ing:

  • More burden­some signa­ture match­ing require­ments. In South Caro­lina, where a federal court had enjoined signa­ture match­ing before the Novem­ber 2020 elec­tion, proposed legis­la­tion would affirm­at­ively impose a signa­ture match­ing require­ment for absentee ballots. Like­wise, in Pennsylvania — where the state supreme court ruled that ballots could not be rejec­ted based solely based on mismatched signa­tures — a proposal would require rejec­tion of absentee ballots on that basis unless the perceived mismatch is cured within six days of noti­fic­a­tion.
  • Increased poll watcher access. At least two states, New Hamp­shire and Pennsylvania, have intro­duced legis­la­tion to increase poll watcher access to absentee ballot processing and canvassing activ­it­ies. New Hamp­shire’s bill would require that members of the general public be permit­ted to observe “without obstruc­tion.”
  • Ballot receipt & post­mark dead­lines. Three states have intro­duced bills that would require that mail ballots be received earlier in order to be coun­ted. A Kansas bill would elim­in­ate the secret­ary of state’s discre­tion to count ballots received later than three days after elec­tion day (KS SB 35). In response to the Pennsylvania Supreme Court’s decision permit­ting the count­ing of timely-post­marked ballots received within three days of elec­tion day, one proposal would require all ballots not received by elec­tion day to be rejec­ted and seeks to prohibit modi­fic­a­tion of that rule by court order. In Iowa, where absentee ballots must be post­marked by the day before elec­tion day, a new bill would require voters to mail their ballots at least ten days before elec­tion day (IA SF 115).

2. Stricter Voter ID

Legis­lat­ors in 10 states have intro­duced 18 bills to impose new or more strin­gent voter ID require­ments for in-person voting (either for early voting or elec­tion day).

  • In six states that do not require voters to present ID at the polls, legis­lat­ors have intro­duced bills to impose that require­ment. foot­note3_h943ceb 3 MN, NE, PA, VA, WA, WY.
  • Three bills in Missouri and New Hamp­shire would insti­tute stricter voter ID require­ments for early in-person voting.
  • Two states with exist­ing voter ID require­ments, Missis­sippi and New Hamp­shire, are consid­er­ing bills to elim­in­ate the use of certain forms of ID. The Missis­sippi bill would prohibit the use of out-of-state drivers’ licenses, while the New Hamp­shire bill would prevent the use of student IDs (NH HB 429, MS HB 543).
  • New Hamp­shire has also intro­duced a bill that would require voters to include a photo­copy of their photo ID with their absentee ballot applic­a­tions and their completed mail ballot (NH SB 54).

3. Limit­ing Voter Regis­tra­tion Access

  • Missis­sippi and New York legis­lat­ors have both intro­duced bills requir­ing voters to produce proof of citizen­ship in order to register to vote (MS SB 2254; NY SB 1853). Mean­while, Texas intro­duced a bill strip­ping voter regis­tra­tion author­ity from county clerks and requir­ing the secret­ary of state to send voter regis­tra­tion inform­a­tion to the Depart­ment of Public Safety for citizen­ship veri­fic­a­tion (TX HB 1026).
  • Seven bills have been intro­duced to roll­back or limit oppor­tun­it­ies for elec­tion day regis­tra­tion, with legis­lat­ors in four states intro­du­cing bills to elim­in­ate elec­tion day regis­tra­tion entirely. foot­note4_owdz8sl 4 CT, MT, NH, VA.
  • Alaska legis­lat­ors have intro­duced bills to roll back auto­matic voter regis­tra­tion by elim­in­at­ing opt-out regis­tra­tion from the state’s perman­ent fund dividend applic­a­tion system (AK SB 39, AK HB 23).

4. More Aggress­ive Voter Purge Prac­tices

Six states have intro­duced 13 differ­ent bills that would expand voter roll purges or adopt flawed prac­tices that would risk improper purges. For example, three bills in Missis­sippi would require a compar­ison of the voter rolls against other data­bases to identify noncit­izens, and would require removal from the rolls of voters who fail to respond to a notice within 30 days with proof of citizen­ship (MS HB 586, MS SB 2016, MS SB 2577). A New Hamp­shire bill (NH SB 31) would permit elec­tion admin­is­trat­ors to remove voters from the rolls based on data provided by other states, a prac­tice that federal courts have found viol­ates the National Voter Regis­tra­tion Act.

Over­view of Expans­ive Bills

State legis­lat­ors are also propos­ing policies to expand access to voting. Indeed, of the 41 states with new elec­tion bills, 35 states have intro­duced expans­ive policies, for a total of 406 expans­ive bills intro­duced or carried over into 2021. These bills focus primar­ily on: (1) mail voting; (2) early voting; (3) voter regis­tra­tion; and (4) voting rights restor­a­tion.

Many of these-pro voter reforms have been intro­duced in states like New York (with 56 expans­ive bills) and New Jersey (with 37). But a signi­fic­ant number of these propos­als have been intro­duced in states with histor­ies of voter suppres­sion, includ­ing Missis­sippi (39 bills), Missouri (21 bills), and Texas (53 bills) — suggest­ing that there remains concer­ted energy around policies that make voting easier, even if passage will be an uphill battle polit­ic­ally.

1. Mail Voting

A substan­tial plur­al­ity of bills that expand access relate to mail and absentee voting, with many policies aimed at address­ing the chal­lenges that voters and elec­tion offi­cials encountered in 2020.

  • Twenty-seven bills in eleven states would permit all voters to vote by mail in all elec­tions (elim­in­at­ing the excuse require­ment). foot­note5_0da679w 5 AL, CT, DE, IN, KY, MO, MS, NH, NY, SC, TX.  This would make perman­ent the expans­ive policies that most of these states — except Indi­ana, Missis­sippi, and Texas — tempor­ar­ily adop­ted in 2020 to facil­it­ate mail voting access during the pandemic.
  • Twenty bills in 12 states would create or reform the notice and cure process to ensure that voters who make a tech­nical mistake on their mail ballots get a chance to remedy those errors. foot­note6_lpsatmo 6 AZ, CT, HI, IN, KY, MS, MO, NJ, NY, TX, VT, VA.
  • Thir­teen bills in eight states affirm­at­ively author­ize or require local offi­cials to provide  mail ballot drop boxes. foot­note7_989usit 7 IN, KY, MD, NJ, NY, TN, TX, VA.  Drop boxes were the subject of 35 cases litig­ated in 2020, most of which involved peti­tion­ers seek­ing to author­ize or expand the use of drop boxes, while others claimed that state law did not author­ize their use.
  • Nine bills in seven states would extend the mail ballot receipt or post­mark dead­line. foot­note8_2ho0×8a 8 FL, MD, NJ, NY, OR, TX, UT.
  • Nine­teen bills in 13 states would allow elec­tion offi­cials to start processing mail ballots before elec­tion day, which would speed up initial report­ing on elec­tion results. foot­note9_prmhz82 9 AR, CT, IN, KY, MD, ND, NH, NJ, NY, OR, PA, SC, VA.

2. Early Voting

Reflect­ing a similar interest in offer­ing voters more flex­ib­il­ity, lawmakers in 14 states have proposed expan­sions to early voting, which would ease elec­tion day burdens on voters and elec­tion admin­is­trat­ors alike. foot­note10_k8b4b1a 10 AL, AZ, CT, IN, KY, MD, MO, MS, NY, PA, SC, TN, TX, VA.

3. Easing Voter Regis­tra­tion

States are also look­ing for ways to make it easier for voters to get registered.

  • Thir­teen states have intro­duced bills to imple­ment same-day regis­tra­tion, which would allow voters to register and cast their ballots on the same day, includ­ing elec­tion day. foot­note14_x6j92yu 14 AK, DE, FL, IN, KY, MS, MO, NJ, NY, OR, PA, SC, TX.
  • Nine­teen states and the District of Columbia have adop­ted auto­matic voter regis­tra­tion in the last six years. Eleven states have intro­duced bills this year that, if enacted, would enable them to join this group. foot­note15_l6djhbr 15 FL, HI, IA, IN, KY, MO, MS, NE, OK, PA, TX.
  • Legis­lat­ors in Missis­sippi, Oklahoma, and Texas have intro­duced bills to allow voters to register to vote online.

4. Rights Restor­a­tion

Momentum contin­ues in support of restor­ing voting rights to indi­vidu­als with past convic­tions. Last year, Cali­for­nia voters over­whelm­ingly passed a consti­tu­tional amend­ment to restore voting rights to every­one in the community and Iowa’s governor issued an exec­ut­ive order that ended the state’s policy of perman­ent disen­fran­chise­ment for those with felony convic­tions.

This year, 15 states have intro­duced policies to restore voting rights or ease current restric­tions for people with past convic­tions. foot­note16_a0fsoak 16 AL, CT, IA, KY, MD, MS, MO, NE, NM, NY, OR, TN, TX, VA, WA.  Legis­lat­ors in Missis­sippi have intro­duced 12 such bills to expand or restore voting rights. The Senten­cing Project estim­ates that Missis­sippi disen­fran­chises over 214,000 citizens living in the community — more than 54 percent of whom are Black — because of past convic­tions.

***

In addi­tion to state bills, much atten­tion has been direc­ted to the compre­hens­ive set of demo­cracy reforms laid out in the For the People Act (H.R. 1 in the House of Repres­ent­at­ives and S. 1 in the Senate), as well as the John Lewis Voting Rights Advance­ment Act.

Consist­ent with these efforts, New York and Virginia have intro­duced state voting rights acts (NY SB 1046, VA HB 1890).

Alloc­at­ing Pres­id­en­tial Elect­ors

One obvi­ous area of focus for legis­latures this year is the manner in which pres­id­en­tial elect­ors are alloc­ated. Currently, only two states — Nebraska and Maine — alloc­ate elect­ors by congres­sional district on a propor­tional basis, while the remain­ing 48 states alloc­ate elect­ors using a winner-take-all system.

Four bills seek to alter these approaches. The Nebraska legis­lature, for example, has intro­duced a bill (NE LB 76) to alloc­ate elect­ors using the winner-take-all system. This follows a split of Nebraska’s elect­oral college votes in the 2020 pres­id­en­tial elec­tion,

By contrast, a Wiscon­sin proposal (WI LRB 0513/01) would alloc­ate elect­ors by district (effect­ively adopt­ing the current Nebraska model), while a Missis­sippi bill would appoint pres­id­en­tial elect­ors by district, with two elect­ors chosen at large (MS HB 1183).

An Oklahoma bill seeks to have the state legis­lature choose pres­id­en­tial elect­ors unless and until there is a federal law requir­ing voter ID and audit­able paper ballots (OK SB 33).

Eleven states have intro­duced propos­als to adopt the national popu­lar vote inter­state compact, under which parti­cip­at­ing states would alloc­ate their elect­oral votes to the pres­id­en­tial candid­ate who wins the national popu­lar vote. foot­note17_7p1brp8 17 IA, FL, KS, MS, MN, MO, PA, SC, TX, VA, UT.  The agree­ment would go into effect only if parti­cip­at­ing states repres­ent an abso­lute major­ity of elect­oral college votes. Mary­land has intro­duced a bill to remove itself from the compact (MD HB 544).

End Notes