State legislatures across the country are contemplating sweeping changes to the way elections are administered after a tumultuous presidential contest, one that ended with both the highest voter turnout in American history and the outgoing president baselessly calling its integrity into question.
In its wake, election rules have become the hottest topic for state legislatures, especially in presidential battleground states.
Lawmakers in a handful of states have begun introducing legislation in so-called pre-filing periods, windows that open before a session begins that enable lawmakers to propose bills. At least 60 election-related bills have been introduced in Texas, 26 are pending in New Hampshire and 41 in Montana, according to a count compiled by the National Conference of State Legislatures (NCSL).
“We can expect a busier than ever elections agenda for the states in 2021,” said Wendy Underhill, director of the NCSL’s elections and redistricting programs.
In some states, legislators plan to make permanent access to absentee and mail-in voting that were temporarily expanded by the coronavirus pandemic, while others are looking to enact new restrictions on how people can vote.
Legislators in several Northeastern and New England states, where voting by mail has never been adopted by wide swaths of voters, are considering adopting no-excuse absentee voting that is already widely practiced in Western states.
“When we expanded access to the ballot, whether that was early voting or loosening the restrictions for applying and utilizing an absentee ballot, we saw a significant increase in voter participation. And we need to continue on that path,” said New York state Sen. Zellnor Myrie (D), who chairs the state Senate Elections Committee. “It has been a source of embarrassment that we have some of the lowest voter participation rates in the country.”
Myrie plans a hearing in early January that will investigate New York’s election administration, where votes took weeks to count and where local boards of election were criticized for errors and lapses. One race, between Rep. Anthony Brindisi (D) and ex-Rep. Claudia Tenney (R), remains undecided.
“Had we been a swing state, had the presidential election been decided on New York’s vote, this would have been a national scandal,” Myrie said.
In other states, legislators are contemplating rules that would place new restrictions on how a voter might obtain and return a ballot. Legislators in Republican-controlled states like Georgia, Pennsylvania and Ohio are considering ending no-excuse absentee voting altogether. Wisconsin legislators will consider whether to curtail in-person early voting.
“We have an election administration system that by and large does pretty well,” said Robin Vos, the Republican Speaker of the Wisconsin Assembly. “There’s always ways that we can work better to ensure the system is as foolproof as possible.”
But some voting rights advocates see different motivations behind the proposals, placing them on par with voter identification rules or changes to the locations of polling places that have taken place in the last decade.
“What we’re seeing in a number of states are clear attempts to either roll back expansions of access to the ballot or add more suppressive measures,” said Sylvia Albert, who runs the voting and elections program at Common Cause.
Several Republican legislators said they wanted to tighten rules around when ballots are returned to facilitate faster results, in order to foster public confidence in the outcome.
“The elections in Arizona are just embarrassingly slow,” said Arizona state Sen. Michelle Ugenti-Rita (R), who heads the Government and Elections Committee. “You’ve got the public who, because of the absence of a winner, because a lot of races are becoming more competitive, they start to question what’s taking so long. That’s not healthy. We need to have timely election results.”
Ugenti-Rita said she will introduce legislation to prohibit voters from dropping off mail-in ballots at polling places. The signatures on those ballots must be checked after polls close, delaying counts by hours or days. She also plans to address a list of voters who are permanently registered to vote by mail by eliminating those who do not vote in four successive elections.
In other states, legislators are taking steps that will allow a closer inspection of the 2020 election results, in a more direct response to President Trump’s baseless claims. Michigan House Speaker Lee Chatfield (R) said Wednesday the state House will give subpoena power to its oversight committee in hopes of investigating an election that President-elect Joe Biden won by nearly 3 percentage points.
Legislators in Pennsylvania, Georgia and Arizona have already held meetings to hear complaints about alleged fraud alongside Rudy Giuliani, Trump’s attorney. Giuliani has falsely claimed widespread fraud, though he has proven none and offered no evidence.
“What’s happening here is legislatures using propaganda to make changes to election law. Changes to election law should be made very deliberately in concert with election officials in the states, with election experts, with nonpartisan advocacy groups, with security experts,” Albert said. “They are using the president’s rhetoric and all of the undermining of the election as an excuse, and I say excuse because there are no facts to back up what they are saying.”
Election rules have become a partisan flashpoint in recent years, and especially since the Supreme Court struck down Section 5 of the Voting Rights Act in 2013. That ruling freed some states from a requirement to clear changes to election administration or voting rights rules with the Justice Department.
Legislators said the fallout from November’s elections, which Trump has continually tried to undermine with baseless tweets and false statements, are spurring a renewed focus.
“We kick the can, we don’t deal with the problems in a prospective way, we wait until things blow up and the public’s unhappy and then we go in and fix it,” Ugenti-Rita said. “The public is losing confidence.”