Since 2020, nearly every state in the country has made some change to their election laws. Now with midterms underway, election administrators and voters alike find themselves navigating complex changes to the voting process. 

New laws that restrict access carry serious consequences – unnecessary burdens and barriers at the ballot box prevent voters from participating in our democracy. Beyond the policy impact of any given legislation, it’s also critical that states take time to get the implementation of any new election policy right. Effective implementation can be the difference between a voter’s ballot being counted or tossed out.

This year, the Texas primaries served as a prime example of the repercussions of poor election law implementation. Ultimately, those who suffer from burdensome and carelessly-implemented election policies are often those already historically disenfranchised, such as Black and brown voters, low-income voters, and voters with disabilities.

Here is a look back at what happened in Texas, as well as some potential implementation issues to monitor in the upcoming August primaries in Arizona, Michigan, Missouri, Wisconsin, and Florida. You can also read about this issue in our recent report, The State of State Election Law: 2022 Mid-Year Review

TEXAS: A CAUTIONARY TALE

This year, Texas served as the chief cautionary tale not only concerning the impact of restrictive policies on voters, but on the manner in which new voting legislation can disrupt elections when poorly written and hastily implemented.

After passing S.B. 1 last year, Texas was the first state to conduct statewide primaries this year on March 1, with runoffs following on May 24. The most significant change from S.B. 1 was the requirement for mail ballot voters to provide a specific number – either their driver’s license, state ID, or Social Security number – with their ballot application and their ballot carrier envelope when returning their ballot.

The new requirements caused implementation challenges throughout the spring election cycle. Early reports around the state indicated that roughly 40% of all mail ballot applications were being rejected. While those application rejection rates seemed to improve closer to Election Day, ballot rejection rates nonetheless soared during the March primary. Over 12% of all mail ballots cast (roughly 24,000 votes) were thrown out, largely due to issues with new ID requirements. This ballot rejection rate vastly exceeded the previous rate of roughly 1% in 2020. Anecdotal data from counties for the May 24 runoff suggest the ID requirement continues to lead to high rates of rejection.

Heading into the November 2022 general election, we will monitor the impact of several other S.B. 1 provisions. The new law greatly reduced checks on poll watchers and could lead to unruly watchers disrupting election procedures in the fall. It also increased restrictions on the types of assistance individuals can give voters casting ballots in person or by mail and added criminal penalties to enforce those restrictions. The possible vote deterrent effect of these provisions will be more apparent with increased general election turnout.

ARIZONA: AUGUST 2

When they head to the polls for statewide primaries on August 2, Arizona voters will experience several election changes prompted by legislation passed in 2021. H.B. 2569 banned the use of private contributions for election administration. S.B. 1485 changed the previous “permanent early voter list” to an “active early voter list.” Voters who fail to cast ballots in each election for two consecutive election cycles now face removal from the list. Additionally, H.B. 2905 banned county recorders from sending mail ballots to voters who do not first request them, unless the voter is on the active early voter list.

Most bills enacted in 2022 so far will not be in effect for the August primary but will take effect in time for the November general election. One bill will make it easier for some individuals convicted of felonies to restore their eligibility to vote. Another will create access to mail ballots that visually-impaired voters have the option to cast remotely. Implementation of the new requirements for proof of citizenship and residency for voter registration under H.B. 2492 was delayed until December 31 by subsequent legislation.

MICHIGAN: AUGUST 2

Though Michigan’s Republican-controlled legislature advanced several bills related to elections in 2021 and 2022, to date Governor Whitmer has vetoed all that have reached her desk. 

Legislative efforts are underway to allow for earlier pre-processing of mail ballots. If they are not successful, we may see delays in election results reporting again. Existing Michigan law does not allow election officials to begin processing mail ballots in preparation for tabulation until the morning of Election Day – despite the fact that mail ballot usage has skyrocketed in Michigan. The expansion of mail ballot eligibility to all voters with passage of Proposition 3 in 2018 contributed to the massive increase in the use of mail ballots in 2020, with over 3.1 million Michigan voters casting absentee ballots in the November election. 

The secretary of state’s office has issued guidance to local election officials concerning drop boxes, signature verification, and ballot envelope cure. Attempts to formalize this guidance through the administrative rules process have stalled in the legislature and are not expected to advance before the November general election. Local officials will likely have to deal with uncertainty concerning the effect of the secretary of state’s guidance as partisan actors continue to dispute the provisions.

MISSOURI: AUGUST 2

The new photo ID and early voting provisions in elections omnibus H.B. 1878 will not be effective during the August 2 statewide primaries, but they will be in effect for voters in the November general election. For the first time, all registered voters will have an opportunity to cast their ballot in person in the last two weeks before Election Day. However, those voters will be subject to new, stricter requirements concerning voter ID than in recent elections, as non-photo options will no longer be acceptable. Voters without photo ID will be required to cast a provisional ballot and will need to return to the polling place with valid photo ID before polls close or have their ballot validated by signature comparison.

Beginning with 2022 elections and heading into 2024, Missouri voters will also notice that all jurisdictions will use paper ballots (except for voters needing assistive equipment to complete their ballots) and will benefit from the additional confidence provided by new requirements for mandatory cybersecurity testing of election equipment.

WISCONSIN: AUGUST 9

This year, Wisconsin has been facing critical questions around the use of drop boxes for absentee voting; the ability of voters to have someone else return their completed, sealed absentee ballot; and whether clerks can add missing witness address details to enable otherwise valid ballots to be counted. 

Drop boxes had been used by some Wisconsin localities for many years, but they saw widespread use in 2020 as voters sought safe ways to vote during the COVID-19 pandemic, with many voters opting to vote by mail. As a result of litigation filed in 2021, drop boxes and third party return were prohibited for the 2022 spring election. In a decision issued July 8, the Wisconsin Supreme Court rejected Wisconsin Election Commission’s drop box guidance, and held that ballots must be returned by mail or by the voter to the clerk at either the clerk’s office or a designated alternative site.

The decision invalidating drop boxes and assistance returning ballots seems to assert that voters – including those with disabilities – cannot be assisted when returning their completed ballot to a municipal clerk. On July 22, voters with disabilities sued to ensure they could exercise their federal rights (which entitle them to assistance in voting) in the upcoming August 9 primary and thereafter. Voters have recently won similar litigation in North Carolina.

Wisconsin voters are also at risk of having their mail ballots rejected over minor omissions in the August election, such as a missing zip code for their ballot’s witness. Wisconsin is one of a small number of states that requires voters to fill out their mail ballots in front of a witness, who must then write their signature and address on the certificate envelope. In accordance with guidance issued by the Wisconsin Election Commission in 2016, election officials may fill in missing witness address information in certain circumstances. In response to a lawsuit seeking to invalidate that policy, the Wisconsin Election Commission codified that guidance as a rule and filed it with the Legislature’s committee that reviews administrative rules. The committee rejected it on July 20. Between the litigation and the rejection of the codified guidance, municipal clerks may be unwilling to rely on the guidance to help voters make their ballots count in the August 9 primary. 

FLORIDA: AUGUST 23

Florida’s August 23 primary will be the first statewide election affected by the implementation of 2021’s S.B. 90 and 2022’s S.B. 524. Voters applying for a mail ballot – as nearly 5 million Florida voters did in 2020 – will now be required to provide their Florida driver’s license number, state ID number, or the last four digits of their Social Security number for the application to be accepted. County supervisors across Florida are reaching out to thousands of voters who will have to update their voter registration records to include the necessary ID numbers to be eligible to receive mail ballots moving forward. Implementation of similar requirements in Texas earlier this year led to a major surge in rejected applications. Florida voters will also need to complete an application twice as often as before to continue to receive mail ballots for each election.

Mail ballot return will also face new restrictions. Drop boxes must be staffed by an employee of a county’s election supervisor’s office, and drop boxes at early voting locations will only be available during the early voting period. Limitations on the number of ballots a person may return on behalf of others created by last year’s S.B. 90 were enhanced this year by S.B. 524, which adds felony penalties for violations of these limitations.

Voters casting ballots in person are also likely to face changes. County election supervisors are now prohibited from accepting private monetary donations to assist election administration, which may increase administrative challenges at polling locations. Also, S.B. 90 contains vague language to prohibit “influencing” voters, which many interpret as a ban on certain forms of assistance, including the provision of food or water to voters waiting in line on Election Day.

S.B. 524’s newly-created Office of Election Crimes and Security could have a major impact on Florida elections moving forward, depending on its implementation. Governor DeSantis recently appointed a new secretary of state, Cord Byrd, who is known to have previously cast doubts on the legitimacy of the 2020 election. DeSantis also recently tapped Peter Antonacci, a former prosecutor and Broward Supervisor of Elections, to head the new office. Many observers have concerns that the office could be used to harass or intimidate voters or election officials.

Provisions in both S.B. 90 and S.B. 524 currently face legal challenges. A federal district court judge issued a ruling enjoining the enforcement of S.B. 90’s provisions that restrict drop boxes, limit third party voter registration, and prohibit “influencing” voters at polling places. The 11th Circuit Court of Appeals has stayed the effect of that ruling pending appeal, leaving the challenged provisions in effect at the publication of this report.