Two weeks ago, Senate Democrats tried and failed to end the legislative filibuster so they could pass the most radical “voting rights” reform in our nation’s history. Even President Biden, a purported moderate and Senate institutionalist, endorsed this proposal. If that proposal had passed, it would have ended state-run elections in the United States as we know it.
Under our Constitution, states are given the duty to prescribe the time, place, and manner of electing Representatives and Senators. See U.S. Const. art. I, §4, cl. 1. However, that clause also empowers Congress to “make or alter” a state’s regulations “at any time.” Id. In other words, elections are run and administered by states subject to laws passed by Congress. This power was vested in Congress because at the founding, there was a real chance that states would refuse to hold elections for federal office, thereby leaving the power and existence of the federal government in the hands of the states. See Arizona v. Inter Tribal Council of Arizona, Inc. (2013) at page 5.
Now that a new year is upon us, many state legislatures are officially back in session. While in many states it is still early in the session, election integrity reforms are being proposed and debated. At this stage, some states show more promise than others.
In May 2021, Governor DeSantis signed SB90, a very strong election integrity measure, into law. Among the most important changes, the law limits the number of drop boxes and requires them to be monitored by an election worker; limits who can collect and return an absentee ballot to only family members; and requires voters requesting an absentee ballot to provide their driver’s license number, or last four digits of their Social Security number. The law also prohibits partisan political activists from engaging in any activity with the intent to influence or effect of influencing a voter within 150 feet of a polling location or drop box. Importantly, this provision does not apply to family members, caregivers, volunteers, or election workers who are providing non-partisan assistance. Put another way, food, water, or other items can be given to voters standing in line to vote unless the person providing it is a partisan political activist.
SB90 is currently in litigation in Federal District Court in the Northern District of Florida. A bench trial is scheduled in the near future. (See pages 39-40).
In November 2021, Governor DeSantis announced a new voter integrity proposal. It creates an Office of Election Crimes and Security to investigate election crimes and fraud, the crime of ballot harvesting would become a third-degree felony, election supervisors would have a deadline to clean the voter rolls of ineligible voters before the election, and it imposes strict penalties for officials that allow droboxes to go unmonitored. The DeSantis proposal is important because many local prosecutors ignore or do not prosecute election crimes. However, Speaker of the Florida House Chris Sprowls and President of the Florida Senate Wilton Simpson are not excited about the proposal. In fact, the proposal does not have bill text or a sponsor in either chamber.
In March 2021, Governor Kemp signed S.B. 202, a very strong voter integrity measure into law. Among the major changes to absentee ballots, the law prevents local governments from sending unsolicited ballots, allows only the voter or the voter’s immediate family to return a ballot, requires those who fill out a ballot to provide their driver’s license number instead of requiring the voter to sign the ballot, and makes the deadline to request a ballot eleven weeks prior to the election as opposed to 180 days. The law also expands early voting to seventeen days, including two Saturdays before the general election and primaries, and disqualifies ballots cast in the wrong precinct, except in extraordinary circumstances. Finally, like Florida’s law, the law prohibits soliciting voters with money or gifts within 150 feet of a polling place. However, the law allows poll workers to make self-service water available to voters standing in line.
Last week, the Georgia Senate considered amending the Georgia Constitution to provide that “[o]nly individuals who are citizens of the United States…” could vote in Georgia elections. The amendment failed to get the two-thirds vote needed for ratification. The Senate might reconsider the amendment later in the session. The Georgia Constitution currently provides that “[e]very person who is a citizen of the United States…shall be entitled to vote at any election by the people.” See Ga. Const. art. II, § I, para. II.
Speaker of the House David Ralston proposed creating an Election Law Enforcement Division in the Georgia Bureau of Investigation to investigate election crimes. Former Senator David Perdue, who is running against Governor Brian Kemp in the Republican gubernatorial primary, has echoed Speaker Ralston’s idea. Today, the Secretary of State’s office investigates election crimes. So far, Speaker Ralston’s bill does not have a bill text or committee hearing date.
Contrary to popular belief, S.B. 202 did not ban drop boxes. The law requires every county to have at least one drop box, and counties can add an additional one per 100,000 voters. Moreover, drop boxes can only be placed inside polling places, and they must be monitored by election officials or licensed security guards at all times. President Pro Tempore of the Georgia Senate Butch Miller introduced S.B. 325 that would ban drop boxes in Georgia. The bill has not received a committee hearing or vote.
The biggest problem standing in the way of election reform in Georgia this session looks to be Governor Brian Kemp. After signing S.B. 202 into law last year, Kemp does not seem open to amending S.B. 202 or considering any other election changes.
In July 2021, the Supreme Court upheld a series of strong voter integrity measures passed by the Arizona legislature in Brnovich v. Democratic National Committee (2021). The laws that were upheld provide for no-excuse early voting by mail or in person for 27 days before election day; limits the people who can collect an absentee ballot to postal workers, election officials, and a voter’s caregiver or family member; allows voters to request to be put on an automatic absentee voting list; and requires voters who vote on election day to vote in their assigned precinct. If a voter goes to the wrong precinct on election day, poll workers are trained to direct the voter to the right location. If the voter believes he or she is at the correct precinct, a provisional ballot can be cast. If it turns out later the voter’s address is in the precinct, the vote is counted; if not, the vote is not counted.
In 2021, Governor Doug Ducey signed three strong voter integrity measures into law. HB2054 signed last March requires the Arizona Department of Health Services to send the Secretary of State a monthly report listing every resident who died within the previous month. The Secretary then has a duty to compare the death records against voter registration and remove all the deceased from the voter rolls. HB2569 signed last April prohibits any public body that conducts or administers elections from receiving or expending private dollars to prepare for an election or conduct an election, including registering voters. Finally, SB1485 requires voters who are on the permanent absentee ballot list to be removed from the list if the voter fails to vote by mail in a primary or general election for two consecutive election cycles, and fails to respond within ninety days after receiving a notice from the county recorder.
The Arizona Senate Government Committee has passed a series of election integrity measures that go toward things other than photo identification (id), drop boxes, or limiting absentee voting. SB1012 requires the Secretary of State (SOS) to give access to the statewide voter registration database to a legislative representative and the Attorney General of Arizona (AG) to assess compliance with federal law regarding voters who are registered as eligible to vote only for federal officers. The AG and county attorneys are given authority to investigate and prosecute those who knowingly register to vote if they are ineligible. SB1054 requires the SOS to appoint a committee of three people to investigate and test voting machines with a focus on the software and other systems used in the most recent general election. That committee must then provide a review to the committees with jurisdiction in the Arizona legislature. Finally, SB1120 requires 19 different specified fraud countermeasures on every paper ballot beginning in the 2022 general election.
The Arizona House Committee on Government & Elections has also passed a series of strong election integrity bills. HB2170 requires any official election document ranging from voter registration application or early ballot request to have the words “not from a government agency” if the forms are delivered by a nongovernmental person or entity. HB2237 repeals same-day or election-day voter registration and adds criminal penalties for election officers that violate the provision. HB2238 prohibits the use of unmonitored drop boxes to receive early ballots. However, the bill was adopted with an amendment that stipulates the prohibition does not apply when the drop box is in a polling place, voting center, or other location where election staff is present. Finally, HB2243 mandates that voter registration forms contain a statement notifying the voter that if the voter moves to a different state, the voter’s registration is canceled in Arizona.
In November 2021, the voters of Virginia spoke loudly by electing Glenn Youngkin as their next governor. Governor Youngkin is the first republican governor of Virginia in over ten years. However, Governor Youngkin’s ability to sign strong election integrity measures into law will be severely hindered by divided government. Unfortunately, Democrats are in control of the Virginia Senate and Republicans are in control of the House of Delegates.
The Virginia Senate Committee on Privileges and Elections has rejected a series of serious election integrity measures. SB118 required photo id to vote, required the Department of Motor Vehicles (DMV) to provide free id, and for those voters who do not have id to cast a provisional ballot. SB127 and SB168 do the same thing as SB118, but they do not require the DMV to provide free id. SB167 and SB235 repeal Virginia’s same-day voter registration law except for members of the military on active duty, persons residing outside of the United States, or the spouse or dependent of either person. SB133 requires every ballot used in a state or federal election to have a unique bar code or quick response code so the voter could track his or her ballot as it is processed.
SB162 requires election registrars to check the name, date of birth, and Social Security number of every active voter and every person who registers to vote against the Social Security Administration’s database, or another database chosen by the State Board of Elections. Voters who failed that check would need to complete certain steps before being able to vote in future elections. SB234 repeals no-excuse absentee voting and removes the ability of a voter to stay on the absentee voting list permanently, and SB236 repeals a voter’s ability to return an absentee ballot at a drop box. Finally, SB552 ends no-excuse absentee voting, requires a voter voting absentee to open his ballot in the presence of a notary who must sign the ballot return envelope, and requires the general registrar to match the signature of the voter on an absentee return envelope to the signature that the general registrar has on file before processing the ballot. All the above bills failed in committee.
While the nine above strong voter integrity measures failed in committee, the committee passed a state constitutional amendment under the false notion of expanding “voting rights.” Under SB21 felons would have the right to vote upon immediate release from prison. For the amendment to be properly ratified, it must be passed by a majority in the House and Senate, passed by a majority in the House and Senate in the succeeding legislature, and then approved by a majority of the voters in the next election as a ballot initiative. See Va. Const. art. XII, § 1.
Unlike the Senate committee, the Virginia House Committee on Privileges and Elections is controlled by Republicans. The committee passed HB185 that contains provisions similar to SB167 and SB235. Perhaps recognizing that photo id proposals have little chance in the Senate, the committee also passed HB544 that allows voters to opt in to being required to show a valid photo id when they go to vote. Because most voters will not intentionally opt in to showing a photo id to vote, this compromise legislation is largely meaningless. The better legislation would require voters to opt out of the requirement.
Finally, HB46 passed out of the subcommittee and has not yet been considered by the full committee. That bill requires a photo id to vote, but allows voters without one to cast a provisional ballot after they sign a statement indicating who they are, subject to criminal penalties. Moreover, the bill repeals the permanent absentee voter list where any registered voter can apply to vote absentee in every future election until the voter requests in writing to be removed from the list.
In April 2020, the Wisconsin Election Commission (WEC) recommended to election officials throughout the state that they maximize the use of drop boxes. Moreover, the commission recommended to state election directors that they seek ways to expand voting in the 2020 federal election cycle through the use of Coronavirus Aid, Relief and Economic Security (CARES) Act Grants. Now, the Wisconsin Supreme Court has agreed to hear arguments over whether WEC’s directives authorizing drop boxes is consistent with Wisconsin law. The plaintiffs argue that the use of drop boxes in Wisconsin is illegal because the law authorizes ballots to be returned only in person or by mail.
Last week, the Wisconsin Senate adopted a constitutional amendment that provides “[o]nly a United States citizen age 18 or older…may vote in an election…” The Wisconsin Constitution’s current language is the same as Georgia’s; it begins with “[e]very United States citizen age 18 or older…may vote in an election…” See Wis. Const. art. III, § 1. Finally, the constitutional amendment process works the same way in Wisconsin as it does in Virginia. See Id. art. XII, § 1.
Pennsylvania and Wisconsin both suffer from the same divided government problem. Both states have a legislature controlled by Republicans, but a governor that is a Democrat. As a result, any strong election integrity measure that gets through the legislature is ultimately vetoed by Governor Tom Wolf.
The Pennsylvania House of Representatives has been scheduled to vote on a series of election integrity reforms for weeks. House Bill 1482 creates a Bureau of Election Audits inside the Office of the Attorney General and requires each county in Pennsylvania to implement a post-election audit using an approved auditing method. House Bill 1800 requires district attorneys to designate a prosecutor as a county election integrity officer, provides $3 million to operate the Bureau of Election Audits, requires absentee and mail-in ballots received before election day to be counted by 9pm election night, requires election offices to compute all returns by no later than 6am the day after the election, gives counties the ability to use secure drop boxes monitored by election workers, strengthens voter id requirements for in-person voting, requires voter id for absentee ballots, repeals the permanent absentee voter list, requires regular election audits, bans ballot harvesting, moves the deadline to register to vote from 15 days to 30 days before the election, and moves the deadline for mail-in and absentee ballots from 8 days before the election to 15. Finally, House Bill 2163 allows for poll watchers to be a poll watcher in any county, not only the county they reside in.
Like the House, the Pennsylvania Senate has a few election integrity reforms on the calendar, but it is unclear when they will vote on them. Senate Bill 573 is similar to House Bill 2163. Senate Bill 322 allows more people to observe pre-canvassing and canvassing of ballots and requires them to have a clear line of sight to view and hear the proceedings. Moreover, the bill allows only ballots received by 8pm on election day to be counted. This language is to overcome the Pennsylvania Supreme Court’s decision that allowed ballots received up to three days after the election to be counted. Finally, if the board of elections is not satisfied with a signature on a mail-in or absentee ballot, it must notify the voter to give them an opportunity to fix the problem.
Last but not least, some very good news came out of the Pennsylvania Commonwealth Court. The court held that Pennsylvania’s no-excuse absentee voting law was unconstitutional under the Pennsylvania Constitution. Governor Wolf has already pledged to appeal the ruling to the Pennsylvania Supreme Court. While on appeal, the lower court’s ruling will be put on hold.