Voting Laws Roundup: February 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 three states, and state lawmakers have introduced hundreds of bills aimed at election procedures and voter access — vastly exceeding the number of voting bills introduced by roughly 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 well over four times the number of bills to restrict voting access as compared to roughly this time last year. Thirty-three states have introduced, prefiled, or carried over 165 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-seven states have introduced, prefiled, or carried over 541 bills to expand voting access (dwarfing the 188 expansive bills that were filed in twenty-nine states as of February 3, 2020). Notably 125 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 six of the forty-four states that have introduced election bills have not proposed policies to alter absentee voting procedures in some way.

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

Overview of Restrictive Bills

Thus far this year, thirty-three states have introduced, prefiled, or carried over 165 bills to restrict voting access. These proposals primarily seek to: (1) limit mail voting access; (2) impose stricter voter ID requirements; (3) slash voter registration opportunities; 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.

Arizona leads the nation in proposed voter suppression legislation in 2021, with 19 restrictive bills. Pennsylvania comes in second with 14 restrictive policy proposals, followed by Georgia (11 bills), and New Hampshire (10 bills).

1. Restrictions on Mail Voting

Nearly half 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: Fourteen bills in nine states footnote1_3h8yg8o 1 AZ, GA, MO, MS, ND, OK, PA, SC, WA.  would make the “excuse” requirement more stringent for absentee voting or eliminate “no excuse” mail voting. A Missouri bill, for example, would eliminate Covid-19 concerns as an excuse (MO SB 282), while four different proposals in Pennsylvania seek to eliminate no-excuse mail voting, a policy just adopted with bipartisan support in 2019. Lawmakers in Arizona, Georgia, North Dakota, and Oklahoma also seek to eliminate no-excuse absentee voting. footnote2_sbz8bxa 2 AZ HB 2701, GA HB 267, GA SB 71, ND HB 1312, OK SJR 19.

Making it harder to obtain ballots: Arizona (AZ HB 2370) and Pennsylvania have introduced bills that would eliminate the permanent early voter list. Bills in Arizona (AZ SB 1678), Hawaii (HI HB 1262), and New Jersey (NJ SB 3391) would eliminate permanent absentee voting lists, and Florida (FL SB 90) would reduce the length of time a voter could remain on the absentee list without having to reapply.

Six bills in New Jersey and Arizona would make it easier for officials to remove voters from the permanent absentee list. footnote3_1yxxlyb 3 AZ SB 1069, AZ HB 2798, AZ HB 2560, NJ AB 4626, NJ SB 2547, NJ AB 3591.

Nine proposals in seven states footnote4_8ykshh4 4 AZ, CT, NJ, NY, OK, PA, WA.  would restrict election officials’ ability to send absentee ballots to voters without a specific request. Arizona’s proposal (HB 2792) would make it a felony to affirmatively send an absentee ballot to anyone not on the permanent early voter list. Oklahoma’s bill proposes an amendment to the U.S. Constitution to prohibit delivery of an absentee ballot to anyone who has not submitted an application notarized or signed by two witnesses (OK SJR 25).

In addition, four states are considering bills to prevent the affirmative sending of absentee ballot applications to voters without a specific request. footnote5_arnxklx 5 CT, ND, SD, TX.  Bills in Connecticut (CT SB 798) and New York (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 eight other states footnote6_qcujifz 6 AK, CT, KS, KY, MD, MN, NY, OK.  have proposed bills to impose or increase strict limits on 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 footnote7_faq1dky 7 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 two Virginia bills 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). Minnesota’s bill (MN HF 293) would impose a new witness requirement. As noted above, an Oklahoma bill seeks to mandate a nationwide witness and notary requirement.
• Limitations on absentee ballot return options: Several other states footnote8_dxod1q3 8 See, e.g., AZ, GA, PA, MO, NH, VA.  would further restrict ballot return options. Arizona’s bill (AZ SB 1503) would prohibit mail return, requiring all absentee voters to return their ballots in person. Proposals from lawmakers in Georgia (GA SB 68), Pennsylvania, and Virginia (VA SB 1459) would prohibit the use of ballot drop boxes. Missouri and New Hampshire would newly require voters to present identification when returning absentee ballots in person.

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 (SC HB 3525). Likewise, in Pennsylvania — where the state supreme court ruled that ballots could not be rejected based solely based on mismatched signatures — two proposals would require rejection of absentee ballots on that basis unless the perceived mismatch is cured within six days of notification. A Connecticut bill (CT HB 5042) would also create a signature matching requirement.
• Ballot receipt & postmark deadlines. Two states (KS, PA) have introduced bills that would require that mail ballots be received earlier in order to be counted. The 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, two proposals would require all ballots not received by election day to be rejected. Bills in two additional states (AZ & IA) would impose or advance postmark deadlines. In Iowa, where absentee ballots currently 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). Similarly, in Arizona, which does not currently have a postmark requirement, a new bill would reject any ballot postmarked later than Thursday before election day, even if the ballot is received by the election day deadline (AZ SB 1593). footnote9_twbfh8n 9 In addition to these bills listed as restrictive, at least seven states (AZ, HI, GA, NH, NY, PA, TX) have introduced legislation to increase poll watcher access to absentee ballot processing and canvassing activities. For example, New Hampshire’s bill would require that members of the general public be permitted to observe “without obstruction” (NH HB 406). Similarly, Georgia’s bill directs that restrictions on watchers “should be as minimal as possible” (GA SB 74). These bills are not included in our count of bills with restrictive measures.

2. Stricter Voter ID

Legislators in eighteen states have introduced 40 bills to impose new or more stringent voter ID requirements for in-person or mail voting. footnote10_5106zq4 10 AR, AZ, CT, FL, GA, ME, MN, MS, MO, NE, NH, NJ, NY, OK, PA, TX, VA, WY.

• In ten states that do not require voters to present photo ID at the polls to cast a regular ballot, legislators have introduced bills to impose an ID requirement. footnote11_h1cspzp 11 CT, ME, MN, NE, NJ, NY, PA, VA, WA, WY.
• Six bills in Arizona, Missouri and New Hampshire would institute stricter voter ID requirements for early in-person voting. footnote12_obs43ml 12 AZ SB 1713, MO SB 14, MO SB 282, MO HB 334, MO HB 738, NH HB 327.  Missouri would also make their ID requirement stricter for election day voting (MO HB 815).
• 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 and Georgia have introduced bills 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, GA SB 29). A separate Georgia bill would require a voter to include their date of birth and state ID number, or photocopy of their ID with an absentee ballot application (GA HB 227, GA SB 67). An Arizona bill would require a photo ID in order to join the permanent absentee voting list (AZ HB 2798)

3. Slashing Voter Registration Opportunities

• Legislators in Arizona, Indiana, Mississippi, and New York have introduced bills requiring voters to produce proof of citizenship in order to register to vote. footnote13_udwqzck 13 AZ HB2701, IN SB 353, MS SB 2254, NY SB 1853.  Meanwhile, Texas lawmakers 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).
• Ten bills have been introduced to cut back on opportunities for election day registration, with legislators in five states introducing bills to eliminate election day registration entirely. footnote14_u4jmr85 14 CT, HI, MT, NH, VA.
• Alaska and Georgia legislators have introduced bills to eliminate automatic voter registration. footnote15_fdkllr4 15 AK SB 39, AK HB 23, GA SB 69.  Arizona has introduced a bill to prohibit automatic voter registration, a policy that the state does not have (AZ HB 2793). A New Jersey bill (NJ SB 3025) would suspend automatic voter registration pending implementation of fraud prevention standards and procedures.

4. More Aggressive Voter Purge Practices

Twelve states have introduced 21 different bills that would expand voter roll purges or adopt flawed practices that would risk improper purges. footnote16_nli8wu4 16 AL, AZ, HI, MI, MS, NH, NJ, PA, SC, SD, TX, UT.  For example, 3 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 forty-one states with new election bills, thirty-seven states have introduced expansive policies, for a total of 541 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 87 expansive bills) and New Jersey (with 38). But a significant number of these proposals have been introduced in states with histories of voter suppression, including Mississippi (38 bills), Missouri (26 bills), and Texas (67 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.

• Thirty-three bills in eleven states would permit all voters to vote by mail in all elections (eliminating the excuse requirement). footnote17_cqokn56 17 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-three bills in twelve states would create or reform the notice and cure process to ensure that voters who make technical mistakes on their mail ballots get a chance to remedy those errors. footnote18_t0458px 18 AR, AZ, CT, KY, MO, MS, NJ, NY, OK, TX, VT, VA.
• Seventeen bills in twelve states affirmatively authorize or require local officials to provide mail ballot drop boxes. footnote19_0cgsorz 19 AZ, GA, HI, IN, KY, MD, MN, 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.
• Thirteen bills in nine states would extend the mail ballot receipt or postmark deadline. footnote20_dwdurqt 20 AR, FL, HI, MD, NJ, NY, OR, TX, UT.
• Twenty-five bills in fourteen states would allow election officials to start processing mail ballots before election day, which would speed up initial reporting of election results. footnote21_xdi5xc8 21 AR, CT, HI, 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 18 states have proposed expansions to early voting, which would ease election day burdens on voters and election administrators alike. footnote22_9co5d50 22 AL, AZ, CT, GA, IN, KY, MD, MN, MO, MS, NJ, NY, OK, PA, SC, TN, TX, VA.

• Twenty-five bills would implement early voting for the first time. footnote23_kf6cnzp 23 AL, CT, KY, MO, MN, MS, PA, SC.
• Fifteen bills would enlarge an existing early voting period. footnote24_7fhp5i8 24 AZ, IN, MD, NY, OK, TX, VA.
• Twelve bills would increase the number of early voting sites. footnote25_djbrgg7 25 IN, MD, NY, TN.

3. Easing Voter Registration

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

• Fifteen 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. footnote26_fxatf4d 26 AK, AZ, DE, FL, GA, 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. Fifteen states have introduced bills this year that, if enacted, would enable them to join this group. footnote27_9y7q3lj 27 AZ, FL, HI, IA, ID, IN, KY, MN, MO, MS, NE, NM, OK, PA, TX.
• Five states have introduced new legislation to allow voters to register to vote online. footnote28_wlp7aom 28 MS, NH, OK, SD, TX.

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, 19 states have introduced policies to restore voting rights or ease current restrictions for people with past convictions. footnote29_5difw2r 29 AL, AZ, CT, GA, IA, KY, MD, MN, MS, MO, NE, NM, NY, OR, SC, 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% 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.

Eight 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). And a bill in Arizona would permit the state legislature to retain authority over the selection of presidential electors and to revoke an elector’s certification by majority vote any time before the Presidential inauguration — regardless of whether the legislature is in session at the time (AZ HB 2720).

Fourteen 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. footnote30_s6e16n8 30 AZ, GA, IA, FL, KS, MS, MN, MO, OK, PA, SC, TX, VA, UT.  The agreement would go into effect only if participating states represent an absolute majority of electoral college votes. Connecticut and Maryland have introduced bills to remove themselves from the compact (CT SB 802, MD HB 544).