The Unsettling Trends in 2021 Election Legislation

Introduction

Although the 2020 elections were riddled with many obstacles, our system worked. The election was without question, the most secure election in American history. Why? Because election officials, governors, and legislators worked together to ensure that each and every American had the opportunity to cast their ballot. Access to the ballot expanded through online voter registration, vote-by-mail, in-person early voting, and drop boxes. Despite the false narrative of vote-by-mail fraud, election audits revealed that the voting systems were secure. One might conclude that the success of the election, which was due in large part to the temporary measures that were implemented, would result in permanent changes to the electoral system. However, following the election where voter turnout reached 66.3%–the highest rate in over a century–we are seeing an unsettling trend of restrictive bills that actively roll back voter-centric policies.

Same Day Voter Registration

Same-day voter registration (SDVR) gives voters the opportunity to register to vote and cast their ballot on Election Day. Although each state differs in their exact policies, the basic requirements asked of those eligible to vote are proof residency and identity. One benefit of SDVR is that it increases voter turnout. According to Nonprofit VOTE’s end-of-year “America Goes to the Polls 2020” report, eight of the top ten states for voter turnout offered same-day voter registration. Traditionally, voter registration deadlines are a month or so before the election, preventing those who become engaged in voting closer to Election Day from being eligible to vote. It is also important to take into account that same-day registration allows voters to update their registration. Not only is same-day registration voter centric but the costs for states, if any, are minimal.

As of recently, 18 states have implemented a form of same-day voter registration for Election Day. In 2021, however, legislators in some (largely Republican) states are actively rolling back same-day voter registration. In March, Montana passed HB 176 ending same-day voter registration. The bill states that regular registration will close 30 days before any election, which is expected to have a disproportionate impact on voters in rural and Native communities. A recent poll showed that 57% of Montanans oppose repealing election day registration. Similarly, HB 86– a bill currently under consideration in New Hampshire–would eliminate same-day voter registration. Exhaustive research, namely a study conducted by Demos evaluating the impact of election day registration on voter fraud, found that allowing voters to register on election day did not lead to any significant increase in attempts of voter fraud.

Voter ID

Voter ID requirements typically require that voters present proof of age, residency, citizenship, etc. at various stages of the voting process. Eligibility to vote is determined during legislation and initially verified upon voter registration, but voter ID laws as we refer to them here seek to once again prove eligibility later in the process, such as when requesting an absentee ballot or casting a vote in person. Currently, 34 states have voter ID laws in place. Though this may sound simple, it can be quite complicated because each state differs in what they classify as valid identification. In some states, proof of residency is accepted, while other states may require a form of photo ID. Like those who advocate against SDVR, supporters of voter ID believe it is a necessary tool in preventing voter fraud, though the data disputes this.

Since the 2020 general election, legislators in Florida, Georgia, Montana, and others have proposed legislation that would expand voter ID laws, making it more difficult for people to vote. One of the many aspects of the recently passed Florida bill SB 90 is that it requires voters to provide a Florida identification number, or the last four digits of one’s social security number, with their absentee application. Similarly, SB 202 which was passed in Georgia requires voters to submit their driver’s license or state-ID number with their vote-by-mail application. If one does not have an ID number, they must send in a photocopy of another acceptable form of identification, such as a passport. In addition to HB 176, Montana passed SB 169 stating that eligible voters must provide proof of state-issued ID, or the last four digits of their social security number to register to vote. A military ID card, tribal photo identification card, U.S. passport, or Montana concealed carry permit are acceptable. School ID accompanied with proof of residency is also acceptable.

The effects of voter ID laws are complex and unclear. While recent studies suggest that any modest effects of strict ID laws are offset by party mobilization, there is consensus that strict voter ID requirements have no effect on perceived or actual levels of fraud. About 21 million eligible voters in the U.S. cannot participate in elections because they do not have a government-issued ID, particularly voters of color, youth voters, the elderly, and low-income individuals. Thus, key demographics are at risk being underrepresented in elections. Many Americans never have to think twice about obtaining an ID for the first time, so it can seem like a fairly easy process. In reality, it is not. Many people do not drive, or cannot afford a car, and in some cases they may not have access to a motor vehicle department within a reasonable distance. IDs can also often be expensive and require many documents some may not be able to obtain.

Permanent Absentee Ballot Lists

There are two types of voters who want to receive a mail ballot: those who want one once, and those who want one for a longer, potentially indefinite, period of time. Given that such a large portion of mail ballot users are repeat requesters, a permanent absentee ballot list, also known as “single sign up,” allows a voter to request a ballot be sent to them for all future elections. This streamlines the process for both voters and election officials (not to mention, it saves local governments a serious chunk of change on request forms alone). These lists have been successfully used in both “red” and “blue” states for years. But like other policies that put voters first, permanent absentee voter lists have been picked apart and weakened this cycle.

Florida, a state specifically applauded by former President Trump for its mail ballot system, has slashed its “permanent” list duration from two general election cycles to one in the recently signed S90. Nor could we tell you why Arizona has chosen to rename its permanent early voter list (PEVL) the “Active Early Voter List” in SB1485 and amend it in such a way that voters can more easily be removed from it. There has been no evidence provided to suggest that previous policies were harmful to elections and in need of change, but we are concerned that these changes will cost local elections offices a lot of money and will cause a significant amount of confusion for voters.

Curbside Voting

Forget big tech companies, election officials were the real innovators of 2020. Local election offices across the country were finding creative safe and secure ways to ensure that their voters could make their voices heard. Here at the National Vote at Home Institute, we were particularly supportive of drive-up and curbside voting, which allowed voters to cast a ballot from their personal vehicle. The implementation of this voting method is one that can and should have continued long after the November election, but some state legislatures are looking to prevent it from ever being used again.

Most recently, Alabama passed HB285, a bill that forbids curbside voting altogether. The Texas legislature has introduced multiple bills where a ban on curbside voting appears. Notably, as a curbside voting was particularly popular in Harris County, the most populous county in Texas and the heart of Houston. States like Vermont successfully implemented curbside voting in 2020 to the benefit of both Republicans and Democrats and have chosen to leave the door open for its use in future elections. We firmly believe in giving election officials and voters more options, rather than fewer and think that these limits are unnecessary and possibly harmful in the long run.

Limit Emergency Powers

One of the most popular responses to the pandemic was an increase in policies that made mail ballots more accessible. Specifically, quite a few states mailed all voters absentee ballot applications and some even mailed all voters an absentee ballot. Most of these changes came via executive action from state Governors and Secretaries of State, but backlash has been swift from legislatures this session.

Three states this year alone have passed legislation to limit their government’s ability to proactively mail voters absentee ballots and absentee ballot applications. SB202, the controversial omnibus election bill passed in Georgia, bans the mailing of absentee ballot applications to voters who have not requested them. Florida’s SB90, which was recently signed by Governor DeSantis, also prohibits counties, municipalities, and state agencies from sending vote-by-mail ballots to voters if they have not requested one. HB1715, passed in Arkansas in April, prohibits county clerks and election officials from proactively mailing absentee ballots and ballot applications if they have not requested.

An additional 3 states have taken more indirect aim at the governor’s emergency powers. Kentucky SB1, passed after Governor Beshear’s veto was overridden by the Republican supermajority. It limits the Governor and Secretary of State’s ability to change the manner in which elections are held. Similarly, HB2332 in Kansas puts enormous limits on a governor’s ability to alter election laws or procedures through executive order. Montana’s HB429 requires legislative oversight if a governor wishes to make changes to Montana’s election law. These bills, while less explicit in their intent, severely limit the power of the executive officers to respond to crises and modify elections to ensure participation by all citizens.

The Takeaway

There is a theme to these restrictive voting bills. While many legislators and elected officials do not endorse much of what is included in these bills, the aforementioned legislation was introduced, passed, and implemented by legislators and governors who inaccurately believe the 2020 election was not secure. When you dismiss that notion as fallacy, you see this legislation for what it truly is: an attack on the voter’s ability to make their voice heard at the ballot box. We at the National Vote at Home Institute know that you do not have to make it harder to vote to make elections secure, as the November election demonstrated.

And so, we will continue to advocate for policy that makes sure that every eligible American can vote by improving and expanding vote at home options in all 50 states. We look forward to our next report on all of the positive steps states took to expand options and access to voters.