Welcome to The Markup, our weekly insights and analysis of the latest in election law and policy.
We are tracking 1,791 bills so far this session across 44 states and D.C., with 313 bills that restrict voter access or election administration and 891 bills that improve voter access or election administration.
As a reminder: we are following a summer schedule. We’ll be publishing The Markup on the first and third Mondays of each month before resuming weekly updates after Labor Day.
Restrictions on Voter Access or Election Administration
Nebraska: Secretary of State Robert Evnen, in response to an opinion published by Attorney General Mike Hilgers, directed county officials not to implement recently enacted laws restoring the voting rights of citizens with past felony convictions. Voting rights advocates filed a lawsuit seeking adherence to the newly enacted law.
Georgia: A federal court left in place a new, earlier deadline for voters to submit mail ballot applications. While federal law requires that voters be able to request mail ballots up to seven days before an election, Georgia’s deadline is 11 days before. This earlier deadline was established by the omnibus bill S.B. 202 enacted in 2021.
Mississippi: The U.S. Court of Appeals for the Fifth Circuit upheld the permanent disenfranchisement of citizens with past felony convictions, reversing a previous decision that the policy violates the U.S. Constitution. Mississippi is one of only four states where the voting rights of citizens with past felony convictions are never automatically restored.
Arkansas: The State Board of Election Commissioners approved a proposed rule prohibiting the use of electronic signatures on voter registration forms. Arkansas is one of only seven states that does not offer online voter registration.
Improvements to Voter Access or Election Administration
Nevada & Mississippi: Federal district court judges rejected challenges to Nevada and Mississippi laws that allow mail ballots mailed on or before Election Day to be counted – even if they are not received until after Election Day. Eighteen states and D.C. rely on postmarks to determine the timeliness of mail ballots.
Arizona: The Ninth Circuit Court of Appeals reinstated a district court decision – which the court had temporarily paused – ensuring the state registers eligible citizens to vote in federal elections, regardless of whether they use the federal registration form or a state-specific form that must be accompanied by proof of U.S. citizenship.
Wisconsin: State courts issued two rulings that will help prevent mail ballots from being tossed out over technicalities. These rulings allow the use of standard mail ballot return envelopes for ballots requested online, without requiring additional paperwork, and direct clerks to count ballots where the voter’s witness failed to write their complete address on the ballot envelope.
Ohio: A federal court partially blocked enforcement of a 2023 law that makes it a felony for friends and neighbors to assist another voter in returning their mail ballot. The court ruled that applying this prohibition to assisting voters with disabilities would violate the federal Voting Rights Act.
Kansas: A state court temporarily blocked enforcement of a 2021 law, making it a crime to falsely represent oneself as an election official after civic organizations conducting voter-registration activities sued the state. The lawsuit claims that this law threatens their registration efforts by potentially criminalizing a misunderstanding from an individual receiving assistance. These groups will now resume voter registration drives.
On Our Radar
Georgia: The State Election Board is considering this week and later this month proposed rules that could threaten the certification of election results.
Michigan: The Republican National Committee and Trump campaign filed a lawsuit challenging voter registration efforts at the Department of Veterans Affairs and Small Business Administration.
California: The legislature will hold hearings this week on bills that would: allow the state to join the Electronic Registration Information Center – an interstate organization for keeping states’ voter rolls up to date; establish a pilot program for in-person voting at county jails; and more.
New York: Last week, the Court of Appeals – the state’s highest court – heard a challenge to the state’s 2023 law, which granted all of the state’s 13 million registered voters the option of requesting a mail ballot. New York is among 36 states and D.C. that offer all voters the option of voting by mail.
The Fine Print
Restrictions on Voter Access or Election Administration
Voting rights groups file lawsuit after Nebraska attorney general seeks to block restoration of voting rights to citizens with past felony convictions.
Voting rights advocates filed a lawsuit against Secretary of State Robert Evnen after Attorney General Mike Hilgers issued an opinion claiming that both L.B. 20 and the underlying statute it amended violate Nebraska’s constitution. These laws automatically restore voting rights to citizens with past felony convictions upon completion of their sentence. Hilgers claims that the state’s constitution grants the Board of Pardons with exclusive authority to restore civil rights following felony convictions. In response to Hilgers’ opinion, Secretary Evnen directed county election offices to stop registering citizens with past felony convictions who have not been pardoned. Evnen also indicated that he intends to ask the Board for permission to broadly grant restoration at its August 20 meeting.
Georgia court leaves in place mail ballot application deadline that conflicts with federal law.
A federal district court judge denied a request to temporarily block Georgia’s mail ballot application deadline of up to eleven days before Election Day despite a federal law allowing voters up to seven days before an election to apply in presidential elections. Georgia’s new, earlier deadline was imposed by the 2021 omnibus bill S.B. 202.
Federal courts uphold Mississippi’s permanent disenfranchisement of citizens with past felony convictions and reject effort to toss out mail ballots with timely postmarks.
The U.S. Court of Appeals for the 5th Circuit reversed a previous decision by a three-judge panel finding Mississippi’s permanent disenfranchisement of individuals convicted of certain enumerated felony convictions violated the U.S. Constitution. The full court decided that this change to Mississippi’s constitution must come from the state legislature rather than the courts. Mississippi remains one of only four states where the voting rights of citizens with past felony convictions are never automatically restored.
Arkansas state board approves rule banning electronic signatures for voter registration.
The State Board of Election Commissioners approved a proposed rule prohibiting the use of electronic signatures on voter registration forms. This decision made permanent a temporary rule issued in May of this year requiring residents to provide a “wet signature” on their applications by physically using a writing device. The new rule came after an Arkansas voter registration organization, Get Loud Arkansas, started using an online tool that collected digital signatures to register hundreds of voters earlier this year. Arkansas is one of only seven states that does not give residents the option of registering to vote online. Last month, voting rights advocates requested that a federal court in Arkansas enjoin the state from enforcing the new requirement.
Improvements to Voter Access or Election Administration
Courts reject efforts to toss out Nevada, Mississippi mail ballots with timely postmarks.
In both Nevada and Mississippi, federal judges dismissed lawsuits brought by the Republican National Committee seeking to have legitimate mail ballots tossed out this November. The lawsuits challenged policies in those states that allow mail ballots postmarked on or before Election Day to be counted even if they are received after Election Day. Nevada and Mississippi are among 18 states and D.C. that use postmarks to determine timeliness of mail ballots.
Court of Appeals reinstates decision eliminating barriers to voter registration in Arizona without documentary proof of citizenship.
Last week, the Ninth Circuit Court of Appeals ordered Arizona to register citizens to vote in federal elections when they submit a completed registration form, regardless of which form type the applicant uses. Following a 2013 U.S. Supreme Court decision, Arizona has maintained a bifurcated voter registration system: only voters who provide documentary proof of U.S. citizenship are eligible to vote in state elections while no documentary proof of citizenship is required to vote in federal elections. Since 2018, residents who submitted the state elections registration form without the required proof of citizenship were still registered to vote in federal elections. A 2022 law changed this policy, directing officials to reject outright state forms submitted without proof of citizenship, but this provision was struck down by a district court earlier this year. That decision was temporarily put on hold by the Ninth Circuit before being reinstated last week.
Wisconsin courts rule in favor of voters in two mail ballot cases.
State courts issued two rulings that will help prevent mail ballots from being tossed out over technicalities. First, an appeals court ruled that a mail ballot is to be counted even if the voter’s witness did not provide their full address on the ballot envelope so long as a clerk can determine how to reach the witness. Under state law, mail voters must have another individual witness them filling out their ballot, and that witness must provide their name and address on the ballot envelope. Additionally, a court dismissed a case challenging Wisconsin’s new mail ballot envelope design. The plaintiffs sought a court order that all mail ballots requested online be returned with a hard copy of the request form bearing the voter’s signature, arguing that the redesigned ballot envelope cannot itself fulfill the relevant legal requirements.
Federal court strikes down Ohio restrictions on providing assistance to voters with disabilities.
A federal judge blocked enforcement of portions of H.B. 458, a 2023 law that made it a felony offense for someone outside a voter’s family to assist them in returning their mail ballot. The court found that these restrictions – as applied to voters with disabilities – violate the Voting Rights Act’s guarantee that such voters have the right to receive assistance in voting from a person of their choosing.
Kansas court temporarily blocks law that threatened voter-registration efforts.
A state court temporarily blocked a provision of H.B. 2183, a 2021 law that criminalized engaging in conduct that gives the appearance of being an election official. Civic organizations that conduct voter-registration efforts argued that this law poses a risk to their outreach efforts because a person might mistakenly believe that their team members are election officials. Enforcement of the law will remain blocked until the court reaches a final decision on the legality of that provision of the bill.
On Our Radar
Georgia State Election Board set to consider rules that could threaten certification of results in November; grant intrusive access to poll watchers; require slow, inaccurate hand counts; and impose new burdens on in-person return of mail ballots.
The Georgia State Election Board is expected to vote tomorrow and later this month on several concerning changes to election regulations. One proposal would open the door for interference with the certification process by providing an opportunity for an unspecified “reasonable inquiry” of results before they are certified. Another petition would potentially expand the election processes that poll watchers can observe to include activities such as the mail ballot process, memory card transfers, and provisional ballot adjudications. Others would require the hand counting of ballots cast at early voting locations and require individuals returning ballots in person to certain locations to provide a photo ID.
The Republican National Committee and Trump campaign file lawsuit in Michigan to block voter registration at offices of the federal Department of Veteran Affairs and Small Business Administration.
Political groups filed a lawsuit against Governor Gretchen Whitmer, among others, alleging that the state violated the National Voter Registration Act by designating the federal Department of Veteran Affairs and Small Business Administration offices as voter registration agencies. The lawsuit further seeks to bar the governor from using executive orders to designate additional voter registration agencies.
California legislature to hold hearings on bills to allow in-person voting at select jails, expand voter registration opportunities, and more.
This week, the California legislature will hold hearings on eight bills that have already passed both chambers: A.B. 2050 (allows the state to join ERIC); A.B. 544 (establishes a pilot program for in-person voting at select jails); A.B. 2724 (expands voter registration opportunities for high school students); S.B. 1174 (prohibits local governments from imposing their own voter ID requirement); S.B. 1328 (expands the scope of felonies related to interference with voting machines and systems); S.B. 299 (alters automatic voter registration procedures); A.B. 884 (expands voting access for non-English speakers); and A.B. 2642 (prohibits threats based on someone’s voting, aiding others in voting, or administration of elections). Next, these bills will go to hearings with the appropriations committee and then to the governor.
New York’s highest court considers the future of mail voting for all registered voters.
The Court of Appeals – the state’s highest court – heard a challenge to the state’s 2023 law, which granted all of the state’s 13 million registered voters the option of requesting a mail ballot. A group of Republican Party organizations and elected officials claim that the state’s constitution only allows mail voting for those with specific excuses for why they cannot vote in person. New York is among 36 states and D.C. that offer all voters the option of voting by mail.
This update is powered by VRL’s State Voting Rights Tracker: tracker.votingrightslab.org