Welcome to The Markup, our weekly insights and analysis of the latest in election law and policy.
We are tracking 1,792 bills so far this session across 44 states and D.C., with 314 bills that restrict voter access or election administration and 891 bills that improve voter access or election administration.
Restrictions on Voter Access or Election Administration
Arizona: The U.S. Supreme Court upheld a new law requiring counties to toss out voter registration forms that are not accompanied by proof of citizenship, even though such proof is not required to vote in federal elections. Under the new law, applicants who do not provide proof of citizenship will have to use the federal-election-only form or have their applications rejected.
Georgia: The State Election Board adopted a rule that prohibits county election boards from counting results that don’t meet certain requirements. The rule also requires county election boards to meet to begin the canvass before the ballot cure period ends.
Improvements to Voter Access or Election Administration
Alabama: A law expanding the types of felony convictions that disenfranchise citizens will not go into effect until after the November 2024 general election.
Arkansas: A federal judge in Arkansas has temporarily blocked implementation of a rule that bans the use of electronic signatures on voter registration forms. The rule, approved by the Arkansas Legislative Council, was originally set to become permanent on September 1.
Illinois: The U.S. Court of Appeals for the 7th Circuit upheld a lower court’s dismissal of a lawsuit challenging Illinois’s extended deadline for acceptance of mail ballots.
Mississippi: Legislators in Mississippi held a joint committee hearing to discuss in-person early voting and online voter registration. During the most recent legislative session, the state senate advanced a bill that would have created early voting starting 15 days before Election Day. Mississippi is one of only a few states that does not offer either option to voters.
New York: The Court of Appeals upheld a decision by a lower court, allowing the state’s no-excuse mail voting law to remain in place. Prior to this law, voters could only apply for and receive mail ballots in limited circumstances.
North Carolina: The State Board of Elections approved the use of the University of North Carolina’s digital student ID for the purposes of voter ID.
On Our Radar
Georgia: The Democratic National Committee and the Democratic Party of Georgia filed a lawsuit against Georgia’s State Election Board, seeking to invalidate recent rules that have the potential to interfere with the certification of election results.
New Hampshire: The New Hampshire legislature has yet to send H.B. 1569 – a bill that would require registrants to provide proof of citizenship and eliminate exceptions to voter ID requirements – to Governor Sununu’s desk. The governor has expressed concerns that implementing the bill in time for the November election could confuse voters.
Nevada: The state supreme court declined to provide guidance on whether county election officials have the authority to refuse to certify election results.
Pennsylvania: A set of court rulings in Pennsylvania will impact mail voting processes in the state. The Pennsylvania Commonwealth Court blocked officials in Philadelphia and Allegheny County from enforcing the provisions of a state law requiring officials reject misdated and undated mail ballots. Another decision will allow counties to continue offering drop boxes and drop off sites. A third decision allows Butler County to reject mail ballots that are missing the inner secrecy envelope without providing an opportunity to cure.
The Fine Print
Restrictions on Voter Access or Election Administration
U.S. Supreme Court upholds a new law that could result in rejection of voter registration applications from citizens in Arizona. The Supreme Court issued a temporary order with mixed effects on a 2022 Arizona law. The order requires individuals registering to vote to show documentary proof of citizenship. The Supreme Court ordered that those registering to vote without submitting documentary proof of citizenship could only do so using a federal registration form – meaning that voters who submit the state registration form without this documentation will have their applications rejected. Prior to the passage of the 2022 law, voters could use either form and applicants who did not provide sufficient documentation for registration in state elections were registered to vote in federal elections only.
The Supreme Court declined to reinstate a provision of the law that would prohibit voters who have not provided documentary proof of citizenship from voting for the office of president. Applicants submitting the federal form must still swear under penalty of perjury that they are U.S. citizens, and are subject to other forms of verification. A recent study found that most federal-only voters are college-aged voters without easy access to their citizenship documents.
Georgia board adopts rule that could delay election results as election officials call on board to stop changing rules ahead of Election Day. The Georgia State Election Board adopted a rule that prohibits local boards from counting votes from precincts where there is a discrepancy between the number of ballots cast and the total number of unique voter ID numbers; requires county election boards to meet to begin the canvass before the ballot cure period ends; and allows for examination of election documents prior to certification of results. The new rules create a risk that local officials could delay the counting or certification process. A rule expanding poll watcher access to various additional election processes will move forward to a final vote this month along with debate over a proposal to hand count ballots during early voting. The Georgia Association of Voter Registration and Election Officials (GAVREO) urged the board to stop implementation of any additional rule changes ahead of the November election.
Improvements to Voter Access or Election Administration
Alabama state court delays new law expanding the types of felony convictions that disenfranchise citizens until after November election. A new law that expands the categories of felony convictions that result in disenfranchisement of citizens will not go into effect until after the November election. In dismissing as moot a challenge to the application of the law to this year’s general election, a state court judge noted that the state government has said they will not attempt to implement this change before the November election, leaving in place the impacted population’s voting rights. Plaintiffs in the lawsuit argued that an October 1 effective date for the new law would lead to fear and confusion ahead of the election, especially since some voters who were eligible to vote in the primary would be ineligible for the general election.
Federal judge temporarily blocks rule in Arkansas banning electronic signatures for voter registration. A federal judge in Arkansas temporarily blocked implementation of a rule banning the use of electronic signatures on voter registration forms. The plaintiffs in the case argue that the “wet signature” requirement is a violation of provision of the Civil Rights Act of 1964. The rule was set to become permanent this month after the Arkansas Legislative Council approved the temporary rule put in place earlier this year by the Arkansas Board of Election Commissioners. Arkansas remains one of only seven states without any form of online voter registration. Litigation is ongoing in the case.
Federal appeals court dismisses lawsuit challenging Illinois’s extended deadline for mail ballots. The U.S. Court of Appeals for the 7th Circuit upheld a lower court’s dismissal of a lawsuit challenging Illinois’s extended deadline for acceptance of mail ballots. Under the state’s law, election officials can count a mail ballot received up to two weeks after Election Day if postmarked by the day of the election.
Mississippi legislators hold hearing on early voting and online voter registration. Members of the Mississippi legislature held a joint committee hearing on early voting and online voter registration. The discussion on in-person early voting comes after the Mississippi Senate passed S.B. 2580 during the legislative session earlier this year, but the House failed to take up the bill. It would have created in-person early voting for all voters beginning 15 days before Election Day. Mississippi is one of just three states without early voting. Former Republican Secretary of State for Kentucky Trey Grayson also advised the lawmakers that online voter registration is a cheaper method that reduces errors. Mississippi is one of only a few states without online voter registration.
New York’s highest court allows no-excuse mail voting law to remain intact. The New York Court of Appeals upheld a lower court ruling that the state’s no-excuse mail voting law does not violate the state constitution. The New York Early Mail Voter Act, enacted by the legislature last year, allows all voters to request and cast a mail ballot during the early voting period. The law had been challenged by various partisan elected officials and party organizations seeking to reimpose a previous restrictive law that limited mail voting to voters who met certain criteria.
University of North Carolina students may use digital student ID to vote. The North Carolina State Board of Elections approved the use of the University of North Carolina’s Mobile One Card, the school’s digital student ID, as a form of voter ID. State law requires voters to show an approved voter ID and permits the state board to approve student identification documents on a case-by-case basis. This is the first non-physical form of ID to be approved. The decision is likely to be challenged in court.
On Our Radar
Democratic Party groups file lawsuit challenging recent Georgia rules that threaten the timely certification of election results. A state lawsuit by the Democratic National Committee and the Democratic Party of Georgia challenges certification-related rules recently passed by the Georgia State Election Board. One rule allows for an unspecified “reasonable inquiry” by prior to certification of results, and the other rule authorizes county officials to “examine all election related documentation” prior to certification. The plaintiffs are requesting that the court declare the rules invalid and declare that the duty of election superintendents to certify election results is mandatory and cannot be delayed.
Deadline approaches for New Hampshire proof of citizenship and strict voter ID bill. The New Hampshire legislature has yet to send H.B. 1569 to Governor Sununu’s desk, despite the bill having passed both chambers in July. The governor has expressed concerns about whether the bill – which would repeal existing law that permits residents to attest to their qualifications under penalty of perjury during the registration and voting process rather than providing documentation – would cause confusion if enacted before the November election. The bill would take effect 60 days after being signed by the governor, so it would not impact this year’s election if signed after this coming weekend.
Nevada Supreme Court denies a request to clarify whether counties can refuse to certify election results. Despite a petition from Secretary of State Cisco Aguilar and Attorney General Aaron Ford, the Nevada Supreme Court declined to address whether county election officials have authority to refuse to certify election results. The request follows an incident in the June primary when Washoe County initially voted against certification and later re-voted to certify the election results. The high court determined that the issue is moot in this instance but stated that it may consider issuing an opinion if the topic becomes a “matter of widespread importance capable of repetition.”
Court rulings in Pennsylvania block enforcement of law requiring rejection of misdated ballots in two counties, allow counties to continue using drop boxes, and prevent Butler County voters from curing “naked” mail ballots. The Pennsylvania Commonwealth Court blocked officials in Philadelphia and Allegheny Counties from enforcing the provisions of a state law requiring officials to reject misdated and undated mail ballots. Another decision by the court will allow counties to continue to offer drop boxes or drop off sites for voters to return their mail ballots. Additionally, a state court judge ruled that officials in Butler County can reject mail ballots that are missing the inner secrecy envelope (known as “naked ballots”) without providing an opportunity for voters to cure the defect. The court stated that the burden is on the voter to ensure they have completed all necessary steps to have their ballot counted. The case is expected to be appealed. Pennsylvania remains one of only 18 states without a statewide cure process.
This update is powered by VRL’s State Voting Rights Tracker: tracker.votingrightslab.org