The Markup: Weekly Election Legislation Update for Monday, August 21

by Liz Avore

August 21, 2023

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Today is Monday, August 21. We are tracking 1,886 bills so far this session across all 50 states, with 397 bills that restrict voter access or election administration and 898 bills that improve voter access or election administration. The rest are neutral, mixed, or unclear in their impact.

The Bad News: The North Carolina legislature passed omnibus legislation that restricts mail voting and same-day registration, among other provisions. Ohio’s new strict photo ID requirements are forcing election officials to reject ballots cast by qualified voters with expired photo IDs.

The Good News: In both Georgia and Texas, federal courts struck down mail ballot restrictions that each state enacted in 2021.

Looking Ahead: The Texas Supreme Court is expected to rule on the constitutionality of a 2023 bill eliminating the office of election administrator Harris County before the law takes effect on September 1. The Mississippi Secretary of State has requested a rehearing, en banc of a recent federal appellate decision striking down the state law permanently disenfranchising citizens with past felony convictions.

Here are the details:

North Carolina legislature passes omnibus legislation restricting mail voting, same-day registration. The North Carolina General Assembly last week amended and passed S.B. 747, which would require officials to reject ballots postmarked on or before Election Day, if they are not received by the close of polls. The bill would also require officials to reject same-day registrations based on a single undeliverable mailing; under current law the registrations are not rejected until two undeliverable mailings. In addition, the omnibus legislation would prohibit election administrators from tabulating ballots before Election Day and from accepting direct or in-kind private contributions for election administration, other than the use of space for polling places. Governor Cooper is expected to veto the bill, with a veto override then likely due to the partisan supermajority in the legislature that passed the bill.

Federal court blocks restrictions in Georgia’s 2021 elections omnibus. U.S. District Judge J.P. Boulee found that a provision in 2021 S.B. 202 that requires officials to reject mail ballots if the date of birth printed on the outer ballot envelope does not match the voter’s registration record violates the Civil Rights Act of 1964. The court also found that a provision criminalizing the distribution of water and food outside polling places violated the First Amendment of the U.S. Constitution.

State and federal courts strike down recently-passed Texas laws. A federal district court struck down mail ballot restrictions included in 2021 S.B. 1. The court determined that the provisions, which require a voter to provide a state ID number or the last four digits of their social security number to apply for and return a mail ballot, violate the Materiality Provision of the Civil Rights Act of 1964. Meanwhile, in a separate case, a Travis County state trial court issued a temporary injunction prohibiting the enforcement of S.B. 1750, a 2023 bill that would eliminate the office of election administrator in Harris County. Attorney General Ken Paxton’s office filed an expedited appeal directly to the Texas Supreme Court, which is expected to rule on the matter prior to the September 1 effective date of the bill.

Ohio’s new strict photo ID law leads to rejection of ballots cast by qualified voters. Members of the Lorain County Board of Elections are worried that the state’s strict photo ID law enacted in January is disenfranchising voters. In the August special election on Issue 1, the board was forced to reject 28 percent of the provisional ballots cast – over half of which were rejected because the voter was unable to provide an unexpired photo ID. The new law, enacted earlier this year, tightened voter ID requirements for most in-person and mail voters. Previous law allowed voters to prove their identity using utility bills, bank statements, paychecks, or other government documents containing the person’s name and address. Members of the board indicated that they intend to write a letter to Secretary of State Frank LaRose expressing their concerns. For more on how Ohio’s new law differs from the national norm, see our January Hot Policy Take.

Mississippi’s Secretary of State seeks rehearing to defend the state’s permanent disenfranchisement of citizens with past felony convictions. A recent decision by a three-judge panel from the 5th Circuit struck a Mississippi law that permanently disenfranchises citizens with past felony convictions. The Court found that the law violated the prohibition against “cruel and unusual punishment” outlined in the 8th Amendment of the U.S. Constitution. On August 18, facing a deadline, Secretary of State Michael Watson filed a petition for rehearing en banc, which, if granted, will allow the full 5th Circuit Court of Appeals to decide the constitutionality of the law. For the Court to grant a rehearing, Mississippi must show that the panel either did not follow U.S. Supreme Court or Fifth Circuit precedent, as it argues in its petition, or that the Court followed Fifth Circuit precedent that the state seeks to have overruled. Prior to the recent decision, Mississippi was one of just three states that did not automatically restore voting eligibility to citizens at some point following their conviction.

This update is powered by VRL’s State Voting Rights Tracker: