This November will mark the first federal general election since 2020. In just two short years, much has changed in the ways our elections are run and the ways that voters are able to cast their ballots in states around the country.
In some states, measures implemented in 2020 that expanded voting access have been codified into law, or even further expanded. In other states, however, the 2020 election – and the subsequent rise of the Big Lie – have cast a long, dark shadow, driving significant voting restrictions and fueling attacks on election officials and election workers.
This Hot Policy Take focuses on changes to voter registration, voter list maintenance, and mail ballot application processes that voters will experience this year as a direct result of the 2020 election and the many false claims made about it.
The 2020 Context
During the 2020 primaries and other pre-November elections, states confronted the question of how to offer opportunities to cast a ballot during the COVID-19 pandemic without needlessly putting the health of voters at risk. States took two basic approaches: easing access to mail voting and offering early, in-person voting.
For example, New York, Indiana (primary only), and West Virginia eliminated their requirement that a voter provide an excuse in order to vote by mail. California, Maryland (primary only), and Montana decided to send every voter a ballot without requiring an application. As a result of these changes, an unprecedented number of Americans chose to vote by mail in 2020.
As the general election approached, mail voting suddenly became controversial largely due to former President Trump’s false claims linking mail voting to voter fraud. As these falsehoods spread, voting by mail took a new partisan lean in the November election, with more Democrats than Republicans choosing this vote method – even in states where historically more Republicans voted by mail than Democrats, like Florida. Nonetheless, nationally, the surge in mail voting’s popularity continued.
In the wake of President Biden’s win, Trump began spreading additional false claims about fraud through several lawsuits and public statements, including renewing perennial claims of dead people and non-citizens voting, and lodging new ones involving manipulation of voting machines, tabulators, and the chains of custody of ballots.
For the next two years, these claims, along with efforts to discredit mail voting, would shape legislative agendas in key swing states such as Arizona, Georgia, and Wisconsin, and other states like Florida and Texas. Many of the bills inspired by these claims became law. This November will be the first federal election with those laws in effect.
In recognition of National Voter Registration Day on September 20, and as voters begin to check their status and register for the November election, we present this review of post-2020 changes to voter registration and voter list maintenance.
Post-2020 Changes to Voter Registration and List Maintenance
Proof of Citizenship Requirements and Searching for Non-Citizens
One troubling legislative trend that has been on the rise since the 2020 election is proof of citizen requirements – a barrier to voting access found unconstitutional and in violation of federal law by multiple courts.
In 2021, Texas enacted new requirements to search for non-citizens on the voter registration list using data from driver’s license records, and to punish election officials who did not follow the mandate. The state has tried implementing this approach since 2019, but it has consistently flagged U.S. citizens for registration cancellation, leading to a settlement of litigation by voting rights advocates and the resignation of Texas’s Secretary of State.
In 2021, Arizona enacted a requirement that the Attorney General and others investigate the voter rolls for non-citizens, but the provisions were stripped out by the state’s supreme court as improperly added to a budget bill. In 2022, Arizona enacted these same basic provisions while adding new requirements that voters provide documentary proof of citizenship, and restricting any voter who doesn’t provide this to voting in person in Congressional races. Arizona also enacted another bill to hunt for noncitizens, empowering clerks to potentially cancel registrations if the clerk has “reason to believe” the voter is not a citizen, without defining what such reasons might be. This bill empowers clerks to use myriad databases, including motor vehicle records, to search for noncitizens. Notably, the Arizona law does not include protections against using old data, and thus is potentially more likely than the Texas law to flag as non-citizens people who naturalized after interacting with the DMV. Both of these 2022 laws are being challenged in court.
This year, Arizona also enacted a bill to try to add documentary proof of citizenship requirements to the federal voter registration form, re-enacting another provision stripped from the 2021 budget bill by the state supreme court. Tennessee enacted a law authorizing the use of jury duty summonses and the federal SAVE database to search the voter registration list for non-citizens. Lastly, Florida required the Department of State to use citizenship data from the DMV to hunt for non-citizens on the voter roll, also without safeguards against stale data.
Voter Registration Restrictions and List Maintenance Procedures
Separate from proof of citizenship requirements, some states have made changes that restrict voter registration access or impose new list maintenance procedures. Arizona passed bills to prohibit two pro-access policies the state does not offer – same day voter registration and automatic voter registration. In 2021, Florida required some voter registration changes to include a driver’s license or Social Security number. Montana, which does offer same-day voter registration, in 2021 stopped offering it on Election Day, limiting it to early voting only. That law is being litigated. A new Missouri law also authorizes the secretary of state to audit the list of registered voters for accuracy and counties’ compliance with prescribed list maintenance procedures. In New Hampshire, new legislation requires Election Day registrants to cast a provisional ballot if they do not provide the required identification.
Voter Registration Improvements
Simultaneously, several states improved access to voter registration. Delaware enacted automatic voter registration at DMVs and same-day registration at polling places on Election Day. Massachusetts moved the registration deadline from the 20th day before an election to the 10th day before.
Additionally, states have newly joined or reinvigorated their participation in the Electronic Registration Information Center (“ERIC”), a coalition of states that share voter registration information in order to improve accuracy. New states that have joined since the 2020 election include Massachusetts and New Jersey. Oklahoma enacted legislation to join ERIC or some other interstate system in 2021, but currently is not listed as an ERIC member state. Georgia, although already an ERIC member since 2019, enacted a requirement that the secretary of state request and use the data offered by the system. The only state to stop using ERIC since the 2020 election is Louisiana, although it remains listed as a member by ERIC.
Post-2020 Changes to Mail Ballot Access
Restrictions to Mail Ballot Access
While state legislators invoked unproven fraud claims to justify new voter registration limitations enacted in 2021 and 2022, changes to mail voting are further-reaching and more tightly tied to the aftermath of the 2020 election. While newly-enacted policies impact every aspect of mail voting, this month we look specifically at the laws impacting the beginning of the process – how a voter receives their ballot.
This November, because of legislation enacted in 2021, voters in Florida and Texas must put a driver’s license or Social Security number on their mail ballot applications, which must match the number in their registration record. In both states, hundreds of thousands of voters did not have such identification numbers in their records, and they can no longer vote by mail unless they add one. Some counties have made efforts to have voters update their records, but it is hard to imagine all voters successfully updating their records by November. Having an identification number on file is no guarantee of mail ballot application success, however, as the voter must use the same one contained in their registration record. Georgia also enacted a requirement that voters seeking a mail ballot must include a state ID number on their application, or if they do not have one, enclose a copy of a different photo ID.
In 2022, Delaware and Oklahoma also required voters to include an ID number on their applications for mail ballots, although Delaware continues to allow voters with certain qualifying excuses to cast absentee ballots without an ID number on their application or ballot envelope. The Oklahoma law recognizes that a substantial number of voters do not have an ID number in their registration record and requires election officials to accept such voters’ mail ballot applications without it, if the voter applies in person or by mail. South Carolina expanded its existing requirement that people applying for a mail ballot online include the last four digits of their Social Security number to cover all application methods. In none of these six states was any empirical link made between the previous version of the ballot application and voter fraud.
Arizona voters have a long tradition of voting by mail. However, in the wake of the 2020 election, the legislature has made myriad efforts to restrict the practice. Last year, Arizona prohibited mailing a ballot without application, a practice that was already illegal. Another 2021 law will remove voters from the list of people who are automatically mailed a ballot each election if they fail to vote for four years. Although the start date of the removal practice is ambiguous, it’s possible voters will be removed starting after the November election. An analysis by the Brennan Center found that the voters threatened with removal disproportionately come from Latino, Indigenous, and other communities of color.
Expanded Mail Ballot Access
Not all states moved to restrict access to mail ballots in the wake of 2020. As a result of 2021 legislation, for the November general election, all voters in California, Nevada, and Vermont voters will receive a ballot automatically, without having to apply for it, as voters in Utah, Colorado, Washington, and Hawaii do.
Automatically mailing all voters a ballot is not the only way states expanded access to mail ballots. In 2022, Delaware and Rhode Island eliminated the requirement that voters have an excuse to vote by mail. New York functionally created no-excuse absentee voting for the 2022 election by defining the state’s illness excuse in a way that allows any voter to invoke the risks posed by the ongoing pandemic. Massachusetts expanded no-excuse mail voting to all elections.
These changes to voter registration, list maintenance, and voters’ ability to receive a mail ballot are just some of the changes to state election law driven by the 2020 election and its aftermath. Our team will continue to monitor the impact of these changes on voters’ ability to register, apply for mail ballots, and more in the lead up to November.