Voting Laws Roundup: June 2023

The state legislative push to restrict voting and undermine faith in elections has moved at a near-record pace this year, driven by a still-active election denier movement. At the same time, the pro-democracy movement has continued to press for legislation to boost voting access.

Thus far, more expansive laws have passed than restrictive and election interference laws. The geographical divide of previous years persists, with expansive legislation tending to pass in some states while restrictive legislation tends to pass in other states.

Just under a third of state legislatures are still in session this year. Between January 1 and May 29, 2023, the following voting legislation has passed:

• At least 11 states enacted 13 restrictive laws. footnote1_a455rup 1 AR H.B. 1411, FL S.B. 7050, ID H.B. 124, ID H.B. 340, IN H.B. 1334, KS S.B. 106, MS H.B. 1310, NM S.B. 180, ND H.B. 1431, SD H.B. 1165, UT S.B. 17, WY H.B. 279, WY S.F. 153.  Two more restrictive bills in two states were passed by both chambers of the legislature and are awaiting the governors’ approval. footnote2_i7oy5sz 2 OK S.B. 377, TX S.B. 924. OK S.B. 377 was signed by the governor after the cutoff date of this report.  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 cast a ballot as compared to existing state law.
• At least four states enacted five election interference laws. footnote3_gzbwhxr 3 AR H.B. 1411, AR S.B. 272, FL S.B. 4-B, GA S.B. 222, SD H.B. 1165.  An additional bill in Texas was passed by the legislature and is awaiting the governor’s signature. footnote4_x2pcyss 4 TX S.B. 1933.  Legislation is categorized as election interference if it either threatens the people and processes that make elections work or increases opportunities for partisan interference in election administration or outcomes.
• At least 13 states enacted 19 expansive laws. footnote5_emlub2r 5 AR H.B. 1512, AR S.B. 247, GA S.B. 129, KS S.B. 221, MD H.B. 410, MI S.B. 259, MN H.F. 3, MN H.F. 28, NM H.B. 4, NM S.B. 180, NY S.B. 1327, UT H.B. 37, UT S.B. 17, VA H.B. 1948, WA H.B. 1048, WA S.B. 5112, WA S.B. 5208, WV S.B. 631, WY H.B. 79.  An additional four bills in two states were passed by the legislature and are awaiting the governors’ approval. footnote6_9njjc2x 6 CO S.B. 276, TX S.B. 1599, TX S.B. 477, TX H.B. 1217. CO S.B. 276 and TX H.B. 1217 were signed by the respective states’ governors after the cutoff date of this report.  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 cast a ballot as compared to existing state law.

One troubling development: lawmakers have begun to target direct democracy, aiming to limit ways that voters can pass ballot measures. Another notable trend in voting legislation this year is a continued push to criminalize election-related activities. And in Texas, the legislature has considered multiple bills that would hamper election administration in Harris County, a trend that is unusual in its targeting of one particular county.

Meanwhile, several states have taken steps to provide legal protections for election workers as they face increased threats to their safety.

Between January 1 and May 29, at least 11 states enacted 13 restrictive laws. footnote7_1am8knf 7 AR H.B. 1411, FL S.B. 7050, ID H.B. 124, ID H.B. 340, IN H.B. 1334, KS S.B. 106, MS H.B. 1310, NM S.B. 180, ND H.B. 1431, SD H.B. 1165, UT S.B. 17, WY H.B. 279, WY S.F. 153.  Of these laws, 7 curb access to mail voting, footnote8_xhuq95l 8 AR H.B. 1411, FL S.B. 7050, IN H.B. 1334, KS S.B. 106, NM S.B. 180, SD H.B. 1165, WY S.F. 153.  and 6 implement stricter photo ID requirements for voter registration or in-person voting. footnote9_j1ukuxw 9 AR H.B. 1411, ND H.B. 1431, MS H.B. 1310, ID H.B. 124, WY H.B. 279, ID H.B. 340.  A law passed in Florida targets voter registration efforts in a manner that could shut down registration drives in advance of the 2024 election. footnote10_nt3dt9z 10 FL S.B. 7050.

While the rush to restrict voting access after the 2020 election has waned somewhat this year, it is still near record highs. By comparison, at roughly the same point in 2021 — the last year when every state’s legislature met — at least 14 states had passed 22 restrictive laws.

The total of 13 restrictive laws enacted so far this year surpasses the total number of restrictive laws enacted in any year in the last decade except 2021.

Overall, at least 322 restrictive bills were introduced in 45 states. footnote11_qfttjgb 11 Restrictive legislation has been introduced in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.  Of these, 35 bills are still moving through 10 state legislatures. Moving bills are those that have passed at least one chamber of the state legislature or have had some sort of committee action (e.g., referral to committee, a hearing since the beginning of 2023, or an amendment). Included in the number of moving bills are one in Oklahoma and one in Texas that have each passed both chambers of the legislature and are awaiting the respective governors’ approval. The Oklahoma bill would risk purging voters from the rolls based on unreliable information. footnote12_9lnr7zf 12 OK S.B. 377 was signed into law after the cutoff date of this report.  The Texas bill would increase the maximum number of voters that can be assigned to a polling place, which can burden election officials, increase the likelihood of long lines, and depress voter turnout, particularly for voters of color. footnote13_ln86l33 13 TX S.B. 924.  Among the other moving bills, more than half (22) would restrict access to mail voting, 7 would impose stricter voter ID requirements, and 6 would increase the risk of faulty voter purges.

At the same time, at least four states passed five election interference laws.

Two of these laws were enacted in Arkansas. One law makes it a crime for an election official to send an unsolicited mail ballot. footnote14_us48bft 14 AR H.B. 1411.  Another enables the partisan state board of elections to conduct an audit of voter registration and mail ballot fraud every two years in addition to the audits the counties conduct themselves. The law does not set standards for the audit, effectively granting the board discretion to target any county it chooses and opening the door to inaccurate audits motivated by partisanship. footnote15_xy7p5cj 15 AR S.B. 272.

Florida enacted a law enabling election crimes prosecutions instigated by Gov. Ron DeSantis’s new partisan election police unit to move forward. footnote16_epi3j1d 16 FL S.B. 4-B.  Last year, the governor announced that, at his behest, the Office of Statewide Prosecution had charged 20 people with alleged voter fraud, all of whom had past criminal convictions, for what appear to be honest mistakes about their voter eligibility. The state has made it nearly impossible for people with past convictions to determine their eligibility.

The apparent intent behind these prosecutions is to intimidate eligible voters. DeSantis turned to the statewide prosecution office to bring the cases after independent local prosecutors refused to bring charges in similar circumstances. After several state courts held that the office lacked jurisdiction to bring the charges, lawmakers sidestepped these holdings and passed this law during a special legislative session to clear the way for these prosecutions.

Georgia enacted a law that makes it a crime for election officials to accept private funding or anything else of value for election administration. footnote17_rab988i 17 GA S.B. 222.  The law does not define “anything else of value.” When public funding is insufficient, election officials could risk prosecution for accessing private funding or resources beneficial for election administration. 

South Dakota enacted a law that imposes criminal penalties on poll workers for both not making the process of canvassing mail ballots “open” to poll watcher observance and not keeping watchers at a reasonable distance from ballots and personally identifying information. footnote18_l13qrh4 18 SD H.B. 1165.  The law risks criminalizing subjective differences of opinion regarding where poll watchers can observe.

Overall, at least 78 election interference bills were introduced in 20 states. footnote19_p4gjdfa 19 Election interference legislation has been introduced in Arizona, Arkansas, Florida, Georgia, Kansas, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New York, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.  At least 10 are moving through four state legislatures. Of these, one Texas bill has been passed by the legislature and is awaiting the governor’s approval. footnote20_2yktk5c 20 TX S.B. 1933.  The bill would allow for unprecedented oversight over Harris County’s day-to-day election administration, including a requirement that the county official obtain the secretary of state’s approval of all policies and procedures. The other moving bills include four election interference bills that would impose new criminal or civil penalties on election officials for routine election administration or minor errors, footnote21_zti651p 21 AZ H.B. 2078, AZ H.B. 2325, NE L.B. 230, NE L.B. 742.  as well as three that would require hand-counts for all election results no matter how large the jurisdiction. footnote22_y3enpw7 22 AZ H.B. 2307, AZ H.B. 2232, SC H.B. 3162.  

Other legislatures have moved to expand voting access this year. In some states, legislatures are pushing restrictive and expansive voting bills at the same time. Between January 1 and May 29, at least 13 states enacted 19 expansive laws. footnote23_lclxiy4 23 AR H.B. 1512, AR S.B. 247, GA S.B. 129, KS S.B. 221, MD H.B. 410, MI S.B. 259, MN H.F. 3, MN H.F. 28, NM H.B. 4, NM S.B. 180, NY S.B. 1327, UT H.B. 37, UT S.B. 17, VA H.B. 1948, WA H.B. 1048, WA S.B. 5112, WA S.B. 5208, WV S.B. 631, WY H.B. 79. Utah passed two additional laws with expansive provisions substantively similar to UT H.B. 37, but those laws were superseded by UT H.B. 37.  The Minnesota and New Mexico legislatures, in particular, passed comprehensive legislation to improve voting access in their states. Both states enacted laws to establish automatic voter registration, a critical improvement in election procedures. footnote24_n9w9fa6 24 MN H.F. 3, NM H.B. 4.  With Minnesota and New Mexico, 22 states and Washington, DC, have now adopted this pro-voter policy. 

Minnesota and New Mexico also enacted laws that restore voting rights to people with past felony convictions who have completed their terms of incarceration. footnote25_q7qtt3j 25 MN H.F. 28, NM H.B. 4.  Such laws restore the franchise to thousands and have particularly strong benefits for Black and Latino citizens, who are disproportionately incarcerated for felony convictions. Previously, in both states, individuals would have had to complete parole, probation, or supervised release before regaining their ability to vote. With Minnesota and New Mexico, 22 states will now automatically restore voting rights upon release from prison, while two states and the District of Columbia never take voting rights away from people convicted of a crime.

Overall, at least 569 expansive bills were introduced in 49 states this year. footnote26_dbdl87y 26 Expansive legislation has been introduced in every state but Wisconsin.  Of these, at least 65 bills are moving through 17 state legislatures. footnote27_jld22wa 27 In Connecticut, one bill was signed into law and one resolution was passed by both chambers of the state legislature after the cutoff date of this report. The resolution, which would allow no-excuse mail voting, will appear on the general ballot for voter approval in 2024. An additional bill in Connecticut, as well as six in Nevada and one in Louisiana, passed both chambers of their state legislatures and are awaiting governors’ approval. And four bills in New York have passed both chambers of the state legislature and are awaiting transmittal to the governor.  A Colorado bill that sets drop box requirements for college campuses and provides opportunities for early in-person voting on tribal lands was passed by the legislature and is awaiting the governor’s signature. footnote28_8f13c1r 28 CO S.B. 276 was signed into law after the cutoff date of this report.  Three Texas bills awaiting the governor’s signature would create a procedure for voters to correct defects in their mail ballot applications, require every polling place to reserve a space for curbside voting with a visible telephone number or accessible intercom, and require counties with a population of less than 55,000 to offer extended early voting hours the final week before an election. footnote29_1ier02s 29 TX S.B. 1599, TX S.B. 477, TX H.B. 1217. TX H.B. 1217 was signed into law after the cutoff date of this report.  A third (26) of the moving bills would expand access to mail voting, 16 would expand opportunities for early voting, 8 would improve the processes for restoring voting rights to individuals with past felony convictions, and 6 would establish Election Day or same-day registration.

Across these legislative categories, the following trends have emerged so far this year.

Weakening Avenues for Direct Democracy

Arkansas, North Dakota, and Ohio approved legislation that would make it harder for citizens to initiate or pass ballot measures. A law passed in Arkansas raises the number of counties where registered voters must file an initiative petition from 15 to 50, making it harder for an initiative to reach the general ballot. footnote30_a1g83cy 30 AR H.B. 1419.  A resolution passed by the North Dakota legislature would increase the number of signatures required for a citizen-led initiative for a constitutional amendment to appear on the ballot from 4 percent to 5 percent of the state’s resident population. footnote31_aidxk9b 31 ND S.C.R. 4013.  The resolution would also require that such ballot measures be approved by a majority of voters in both a primary and general election in order to be implemented. Currently, voters need only approve a ballot measure by a simple majority in one election. Voters will have to approve the measure during the November 2024 election to be effective.

In Ohio, the state legislature passed OH S.J.R. 2, which could increase the approval threshold needed to pass a constitutional ballot measure from a simple majority to 60 percent. Voters will have to approve the measure before it can be implemented. The Ohio legislature — which passed legislation earlier this session banning August elections because of low turnout — scheduled a special election on the measure this August. At a moment when reproductive justice advocates are engaging the ballot initiative process to enshrine the right to an abortion in Ohio’s constitution, the resolution appears designed to undermine those efforts.

Ballot measures provide voters the opportunity to directly shape state law and policy. If approved by voters, these two measures will curtail a critical method of democratic policymaking. The measures continue a trend from the past few years in which state legislatures have attempted to restrict or undermine the ballot initiative process. In 2020, Florida raised the number of signatures required for an initiative petition to reach the general ballot from 10 percent to 25 percent. In 2022, Arizona voters approved a constitutional amendment passed by the legislature to raise the voter approval threshold for ballot initiatives that raise taxes from a simple majority to 60 percent.

Criminalizing Election-Related Activities

This year we’ve seen an increased focus in state legislatures on criminalizing election-related activities. Fueled by false claims of widespread voter fraud, a variety of bills would empower law enforcement to penalize voters, election officials, and volunteers for ordinary conduct and inadvertent errors.

In Texas, two bills that were passed by the state senate but are now dead would have removed the requirement that a prosecutor must prove that a person knew they were ineligible to vote for them to be guilty of illegal voting. footnote32_3puents 32 TX H.B. 1243, TX S.B. 2.  This would have made it easier to prosecute individuals for honest mistakes about their eligibility to vote, which risks intimidating eligible voters. The Texas house rejected this approach. footnote33_e5ijll2 33 The Texas house declined to pass TX S.B. 2 and rejected the senate’s amendment to TX H.B. 1243 adding this provision.

Some state legislatures have also moved to criminalize ordinary voter mobilization activity, although most attempts to do so failed to become law. Florida enacted a law that will drastically increase the financial penalties on voter registration organizations for human errors and impose a $50,000 fine on the organization if a person who is not a citizen collects voter registration forms on its behalf. footnote34_w5mo2tg 34 FL S.B. 7050.  Wyoming’s governor vetoed a bill that would have prohibited anyone except an election official from sending out an unsolicited mail ballot application, footnote35_sr5o1f9 35 WY S.F. 131.  while Arkansas enacted a law that makes it a crime for an election official to send out an unsolicited mail ballot application or mail ballot. footnote36_icrtz65 36 AR H.B. 1411.  And an Arizona bill that would have made it a felony to deliver a mail ballot without following the proper identification procedure was passed by the state senate but failed in the house. footnote37_ospa33n 37 AZ S.B. 1141.

This trend of proposing legislation that criminalizes election-related activity creates an atmosphere of fear around elections and can discourage participation by voters, election officials, and volunteers. At the same time, some state legislatures are politicizing law enforcement’s authority over election matters.

Florida and Texas have moved to expand the power of prosecutors to go after low-level election crimes — and circumvent the discretion of local prosecutors who decline to bring charges, often when the evidence indicates a lack of criminal intent. As noted above, Florida enacted a law that expands the authority of statewide prosecutors so they can continue the prosecutions of individuals for honest mistakes that the state’s election police have claimed are voter fraud. footnote38_95o83mr 38 FL S.B. 4-B.  And the Texas senate passed a bill, now dead, that would have authorized county and district attorneys to prosecute election offenses in adjoining counties or districts if that county’s attorneys declined to do so. footnote39_c1sncfy 39 TX S.B. 2208.  The Texas senate also approved a bill, now dead, that would have empowered the secretary of state to appoint “election marshals” tasked with investigating illegal voting and filing criminal charges. footnote40_eobt13w 40 TX S.B. 220.  This kind of legislation echoes laws enacted in Florida and Georgia in 2022.  

In a related trend, lawmakers in at least five other states have taken steps to create “election police” units. For example, Arkansas enacted a law that creates an “election integrity unit” in the attorney general’s office tasked with investigating violations of election law and referring them for prosecution. footnote41_sk5mf42 41 AR H.B. 1513.  At least four additional states introduced legislation this year to create similar units. footnote42_amd7e0f 42 OH S.B. 51, IL H.B. 2943, MO S.B. 350, NV A.B. 326, NV S.B. 325.  However, we do not classify this legislation as election interference, as it does not inappropriately transfer investigative or prosecutorial authority to political branches of government.

Texas Legislature’s Targeting of Harris County

Texas legislators introduced several bills this year that target election administration in Harris County (home to Houston), which is the third largest county in the country and has the greatest number of nonwhite eligible voters in the state. Such selective backlash against a single county is unusual, but in Texas, it’s not novel. footnote43_ljzjd71 43 The Brennan Center previously represented the Harris County elections administrator in Longoria v. Paxton, challenging a prohibition on election officials sending out unsolicited mail ballot applications.

The most blatant example of interference is a bill that would authorize the secretary of state, a political appointee, to exercise extreme, indefinite oversight over the day-to-day activities of Harris County elections, including a requirement that the county official obtain the secretary of state’s approval of all policies and procedures. That bill has passed both chambers of the legislature and is awaiting the governor’s signature. It originally would have applied to all counties, but in the last few days of the legislative session, it was amended to target Harris County alone. Such oversight could be triggered by unintentional errors in election administration. footnote44_e7oy2ps 44 TX S.B. 1933.

A similar bill, which died with the end of Texas’s legislative session, would have allowed the secretary of state to call for a new election in a county with a population of 2.7 million or higher if the secretary had good cause to believe that at least 2 percent of polling places ran out of usable ballots and did not receive supplemental ballots for one or more hours after requesting them — targeting the pattern of facts that took place in Harris County during the 2022 general election. footnote45_zb4acz4 45 TX S.B. 1933.  This bill would have empowered a partisan official to outright dismiss election results on the basis of technical difficulties.

The Texas legislature has focused on Harris County before. During the 2020 general election, the county’s elections administrator implemented innovative policies, including drive-thru voting and 24-hour voting, to give voters flexible, safe ways to cast their ballots during the pandemic. Additionally, the administrator had planned to send out mail ballot applications to all voters but was warned not to do so by the secretary of state. The Texas legislature responded in 2021 with the passage of S.B. 1, a restrictive voting bill that, among other things, prohibits drive-thru and 24-hour voting and criminalizes election officials who send out unsolicited mail ballots. Now the state legislature has provided the secretary of state the authority to intervene in Harris County’s elections in response to administrative complaints, in an apparent backlash to the county’s innovative voting policies and unintentional election errors. 

In fact, the backlash against the Harris County elections administrator is likely to go even further when the governor signs an additional bill passed by both chambers of the legislature that would eliminate the position altogether. footnote46_c4606w5 46 TX S.B. 1750.  While we do not categorize the bill as interference because it leaves election administration in the hands of other elected county officials, the bill would take the unprecedented step of denying this single county the authority to decide for itself whether its elections are operated by an election administrator or by the county clerk and assessor. Every other Texas county can make its own determination about which form of election administration it prefers. Additionally, the bill would effectively oust the election administrator two months before a local election this November.

Legal Protections for Election Workers

Existing federal and state laws protect voters from intimidation, but state laws have generally not addressed intimidation against election workers. According to Brennan Center research, in recent years, election officials have received death threats and online harassment, partisan interference with their jobs, and have been subjected to the risk of criminal prosecution for minor infractions imposed by new laws.

This year, several legislatures have proposed and passed legislation to counteract threats against election workers. At least five laws passed in Arkansas, Minnesota, New Mexico, North Dakota, and Oklahoma will prohibit anyone from intimidating election workers or interfering with their duties. footnote47_nir7136 47 AR H.B. 1457, MN H.F. 3, NM S.B. 43, ND S.B. 2292, OK S.B. 481. An additional law, NV S.B. 406, was signed by the governor after the cutoff date of this report. At least three similar bills are still moving through two other state legislatures.