We’re living through an extraordinary era in election law – and we have the data to prove it. Since 2020, well over 5,000 election bills have been introduced, reshaping the conversation – and well over 500 new laws have been enacted that have cumulatively transformed the voting and elections policy landscape.
These sweeping changes will certainly impact both voters and election workers in the 2024 presidential election. But even before then, much is on the line for voting rights this fall. In this month’s Hot Policy Take, we examine what’s new and what’s at stake heading into the 2023 elections in five states: Kentucky, Louisiana, Mississippi, New Jersey, and Virginia.
Five Major Off-Cycle Elections Happening This Fall
This fall will see new election policies take effect in five states holding off-year elections, with governors, attorneys general, and/or state legislators up for election in Kentucky, Louisiana, Mississippi, New Jersey, and Virginia.
New rules will impact the ability of the 18 million registered voters in these states to cast their ballots, making all five of them important elections to watch.
The outcomes will be of significant consequence for election policy. For example, senators in Virginia who blocked draconian restrictions on voter access passed by the House from becoming law are up for reelection. A Kentucky policy that restored voting rights to 200,000 citizens is at risk. An attorney general election in Mississippi could influence the direction of a groundbreaking voting rights lawsuit in the state. And whether the governor continues to be a backstop to blatant attacks on federal voting law in Louisiana is in question.
Here’s a rundown of what election policies have changed and what impacts will come from the elections this fall.
Kentucky
What’s Changed: A 2021 omnibus law significantly changed voting access in Kentucky, expanding it in some ways and restricting it in others. Most significantly, the law improved voting access by establishing in-person early voting for the first time, but it also restricted access by allowing counties to consolidate neighborhood polling places. In 2022, some counties’ aggressive consolidation led to long wait times and calls for change. As a result, the legislature passed a law in 2023 to protect against this kind of overconsolidation of polling places by giving the secretary of state the power to veto consolidation decisions.
Another major policy change happened on December 12, 2019, when Governor Andy Beshear signed Executive Order 2019-003, restoring voting rights to nearly 200,000 citizens who had previously been convicted of non-violent felonies. Under the order, their voting eligibility is automatically restored once they have completed all the non-monetary terms of their sentences.
What to Watch: This election will be a test of whether the 2023 law will be effective in protecting against the kind of overconsolidation of neighborhood polling places that we saw in 2022.
The election could also determine whether or not citizens with past non-violent felony convictions can vote. Governor Beshear is running for reelection, and his opponent, Attorney General Daniel Cameron, will not commit to leaving Executive Order 2019-003 in place. Under the Kentucky Constitution, citizens lose their right to vote following a felony conviction – and the right can only be restored by the governor. If Daniel Cameron is elected governor and rescinds Governor Beshear’s order – like Governor Matthew Bevin did following the 2015 election – Kentucky would join Alabama and Virginia as the only states where voting eligibility is never automatically restored.[1]
Louisiana
What’s Changed: Some Louisiana voters will have an easier time voting early in person this fall due to a 2021 bill that allows for more early voting locations. Those returning mail ballots may find it more difficult due to a 2022 law limiting how they can do so.
However, the story in Louisiana is less about what has changed and more about what hasn’t. Governor John Bel Edwards, who is term limited, has vetoed 10 problematic voting bills since the 2020 election.
Vetoed bills included a number of harmful provisions, including but not limited to: interfering with election officials’ compliance with federal law; restricting the use of federal funding for elections; expanding potentially biased and intimidating poll observation; canceling valid voter registrations, and making it more difficult to vote by mail.
What to Watch: Depending on who wins the gubernatorial election, the proposed bills undermining nonpartisan election administration and voting access that were vetoed in recent legislative sessions could become law next year.
Also on the ballot in Louisiana this fall is a proposed state constitutional amendment referred by the legislature that would prohibit private grant funding of elections – the first private funding ban in the country to go before voters.
Mississippi
What’s Changed: The biggest change in Mississippi was not legislative. On August 4, 2023, a federal court struck down the Mississippi law that permanently disenfranchised citizens with past felony convictions. The court order restored voting rights to citizens who completed all terms of their sentence.
According to a 2022 Sentencing Project report, 10.7% of otherwise eligible Mississippians were disenfranchised prior to the federal court’s decision, the highest in the nation, including 15.7% of Black citizens. In total, 239,209 Mississippeans were disenfranchised prior to the recent decision – and 180,810 had completed their sentences.
What to Watch: Over 180,000 formerly disenfranchised citizens will have the right to vote in this election. However, their right to vote in future elections is uncertain. The state has petitioned for the full federal appeals court to rehear the case. If the petition is granted, the full court could reinstate the Mississippi law that permanently disenfranchises people with past felony convictions, unless the legislature holds a vote that pertains specifically to each individual and two-thirds of each chamber votes to restore their right to vote. If attorney general candidate Greta Kemp Martin – who is facing Mississippi’s incumbent attorney general in the fall election – is elected, she has indicated she would be likely to end the office’s defense of the policy case.
New Jersey
What’s Changed: New Jersey has seen 14 election-related laws enacted since 2020, the vast majority of which improve voter access and election administration. Of particular note, voters will have an easier time voting early in person at early vote centers open seven days a week and will be able to request a mail ballot online for the first time. Election administrators should also have an easier time canvassing mail ballots this election, thanks to a 2022 law that allows them to start doing so five days before Election Day.
What to Watch: It will be interesting to track how the various expansions to voter access impact voter behavior and turnout. This election may serve as a test to identify any complications in the implementation of the new policies.
Virginia
What’s Changed: Virginia saw more than a dozen election-related enactments since 2020 – many of them bills that passed in the last year of former Governor Ralph Northam’s term that expand voter access or improve election administration.
Significantly, in 2021, the legislature passed a State Voting Rights Act that created the first state-level preclearance system, modeled on the federal Voting Rights Act’s system that was rendered toothless by the U.S. Supreme Court. The law created requirements and procedures designed to prevent localities from changing voting rules in a way that discriminates based on race, color, or membership in a language minority group.
Other legislation enacted in 2021 and 2023 significantly improved mail voting access by making it easier for voters to return mail ballots and less likely that valid mail ballots are rejected. A separate 2021 law authorized counties to offer in-person early voting on Sundays.
What to Watch: The state legislative election in Virginia will be a very meaningful one. Fifteen restrictive election bills passed the Virginia House in the 2022-23 session, but were blocked by the Virginia Senate. These bills could become law depending on the outcome of state legislative elections.
Some of the threats to voting access that passed the House – and that loom large today, depending on the makeup of the legislature following this election – include eliminating same-day voter registration and automatic voter registration; dramatically shortening the in-person early voting period; prohibiting drop boxes; and creating a new photo ID requirement.
Conclusion
While most eyes may already be on the upcoming elections in 2024, those held in 2023 should not be ignored. Just weeks away, this fall’s elections will have important lessons to offer on the impact and implementation of current voting laws. The results of these elections could have serious repercussions on the policies and practices that shape elections to come – for better or for worse.
Our team at the Voting Rights Lab will be closely observing the impacts of new policies on voting and election administration as we head into 2023’s voting season. As always, you can take a look at existing election law and pending legislation across all 50 states and D.C. with our State Voting Rights Tracker.
[1] Mississippi’s permanent disenfranchisement law has been blocked by a federal court but is undergoing appeals.