What Schoolhouse Rock! Left Out
We love a catchy song and animation as much as the next election nerd, but you don’t really want to know what happens in the process of passing a law. Here at the National Vote at Home Institute, we think voters should be aware of what’s going on behind the scenes of the election legislation that is passing (or not passing) this year.
The first version of an election bill rarely resembles its final form; from small, technical changes that make all the difference to the complete overhaul of a bill, amendments play a crucial role in the legislative process. Even once a bill has been meticulously edited and perfected, there’s no guarantee that it will pass. Sometimes logistics prevent a bill that appears destined for greatness from being signed into law. Why and how does that happen? Recent bills from Florida, Maryland, and Kentucky are great case studies to examine the hurdles that can be placed in a policy’s way.
Amendments (they giveth and they taketh away)
The amendment process is often overlooked as a key element of lawmaking. The introduced version of a law can be drastically different from the final product, which is due in large part to the amendment process. Sometimes amendments tweak specific lines to improve policy, usually as a result of consulting with experts and the stakeholders the law will impact. Other times, massive “strike below” amendments delete the bulk of the bill and replace it with an entirely new text. Strike below amendments were used liberally in Florida this year.
Though Florida was once a leader in voter-centric elections administration it has recently rolled back much of the progress it made. In 2021, the Florida House and Senate introduced HB7041 and S90, which, in their earliest iterations, would have made it far more difficult for voters to cast ballots, threatened the privacy of voter information, and invited partisan interference into the election process.
Florida then gave us legislative whiplash by prohibiting and reinstating dropboxes repeatedly, before finally allowing drop boxes again, but only at certain locations and times. Prohibitions on giving food and drink to voters in line followed a similar pattern. Still, other policies disappeared forever once removed, as was the case with a provision that would have required all voter signatures to be housed on a searchable online database so challengers could compare them to ballot envelopes.
All told, between S90 and HB7041, there were over 175 proposed amendments and 10 official versions of the bills. The final provisions aren’t exactly voter-centric, but we are grateful for the amendment process that allows groups like NVAHI to bring our expert technical expertise and help refine the worst parts of the bill.
Dying at the finish line
Another thing Schoolhouse Rock! left out is that when a bill passes, it doesn’t automatically become law. Sometimes, even when there’s the political will to pass a bill, it can still die. This happened in Maryland this year.
During the early days of the pandemic, Maryland moved mountains to expand voting by mail by improving their mail voting systems and even mailing all voters a ballot in the 2020 primary. There was political to maintain these changes, as shown by the wide variety of bills that passed. For example, HB1048, which expanded mail voting and made drop boxes permanent, passed and will become law in early June (barring any surprise vetoes by the Governor).
During a legislative session, experts provide legislators and staff with technical assistance and testimony during the amendment process to make sure the new laws fit. Even with the political will to pass legislation and no major hurdles, not all major bills will make it. For example, Maryland HB1047, an ambitious bill that would have codified a variety of pro-voter changes made in 2020 including ballot tracking, a cure process, and preprocessing, passed both chambers with bipartisan support and more than 70% of legislators voting in favor. Unfortunately, the legislature could not put together a conference committee to get the bill across the finish line. This was a huge missed opportunity for the Maryland legislature, but more importantly for Maryland voters and shows that even bills with active, engaged sponsors are not guaranteed to pass.
When it all comes together (with a lot of help along the way)
Sometimes (rarely) everything comes together and good bills get passed with bipartisan support and relatively little controversy, as was the case in Kentucky this year. After implementing sweeping changes during the 2020 election, Kentucky legislators passed a bill that expanded early voting, made drop boxes and vote centers permanent options for voters, and maintained an online absentee ballot request portal.
As with any good product, you have to start with the base, and HB574 had a good foundation, built using input from the Secretary of State and election officials. The amendment process is where the bill really shined. During this process, legislators reconciled technical edits from experts, such as NVAHI, on a variety of issues with the original bill language which resulted in amendments for mandating preprocessing, removing provisions that decreased the accessibility of absentee ballot requests, and decreasing red tape for counties.
When the bill ultimately went to the legislature some changes were made, not all of which NVAHI supported, but they were minimal. Eventually, the bill was passed by a Republican-controlled legislature and signed into law by a Democratic governor, making this bill a model example of bipartisan lawmaking. Kudos to Kentucky!
So, how does a bill become law?
Despite what Schoolhouse Rock! may have told us, there is more than one path for a bill to become a law. Sometimes, a poorly intentioned bill is written that has the votes to pass and all there is to do is work to ease its impact on election officials and voters. Other times, a bill is a genuine improvement to the law and has everything it needs to go far, but doesn’t quite make it into the books. In the best cases, bills will go through a bipartisan, collaborative process working together with local election officials and experts to create a positive way forward for voters. In short, Schoolhouse Rock! left quite a bit out of the process.