As we wrap up the 2021 legislative sessions in most states, let’s take stock of our movement’s victories. Voting rights advocates and organizers successfully ensured that some of the most restrictive policies failed. They also moved forward reforms across the country that expanded voter access – in red and blue states alike.
Stopping the Worst
Sunday Voting. Bills introduced in Georgia and Texas this year would have restricted early voting on Sunday. Sunday is a popular day for “Souls to the Polls” events, in which congregants at predominantly Black churches go together to vote after services.
In Georgia, H.B. 531, as introduced, prohibited Sunday voting outright. After outcry from voting rights advocates, legislators amended this provision to allow county election administrators to choose to offer either Saturday or Sunday voting. Legislators specifically noted the influence of testimony in favor of Sunday voting as prompting the amendments. H.B. 531 did not pass this session, thanks in large part to the advocacy in opposition, which rendered the bill politically toxic. Ultimately, a new bill, S.B. 202, became the omnibus bill that did pass in Georgia. S.B. 202 allows counties to offer early voting on the second and/or third Sunday before Election Day in most elections.
In Texas, during the regular legislative session, lawmakers introduced a provision in S.B. 7 that would have banned early voting earlier than 1 PM on Sundays. The immediate outcry led to legislators changing this provision. Some lawmakers even stated that it was an inadvertent typo (though floor debate belies this claim). S.B. 7 was the legislature’s chief omnibus bill during regular session, and many of its provisions were folded into S.B. 1, the major elections bill that passed during special session. S.B. 1 included no such restriction on Sunday morning voting and required counties of a certain size to provide six hours of early voting on Sundays. This is a small bright spot in the otherwise overwhelmingly anti-voter bill, but it is one that the voting rights coalition in Texas can certainly count as a victory.
Protecting Sunday voting is important. According to the Atlanta Journal-Constitution, over 71,000 Georgians voted on Sundays in 2020. Restrictions on Sunday voting are unnecessary and clearly intended to target Black voters. Indeed, North Carolina legislators admitted as such during their own attempt to restrict Sunday voting in 2016, noting, “Counties with Sunday voting in 2014 were disproportionately black” when deciding to take away one of two Sunday voting days. In striking down that law, the Fourth Circuit Court of Appeals noted this was essentially “a smoking gun.”
Drop boxes. Drop boxes were available in at least 32 states in the 2020 general election and more than 1 in 5 mail ballots in 2020 was returned in a drop box – more than 14 million ballots. Despite their popularity with voters, some legislators attempted to limit voters’ freedom to choose to deposit their ballot in a secure drop box rather than returning in person or by mail.
In Florida, an early version of the omnibus election bill S.B. 90 would have eliminated drop boxes outright. Voting rights advocates lobbied and testified in support of drop boxes, and ultimately they were saved. While the enacted version S.B. 90 still allows drop boxes, it now requires them to be staffed and eliminates the possibility of mobile drop boxes, popular in 2020. Approximately 1.5 million Floridians used secure drop boxes in the 2020 General Election.
In Wisconsin, legislators attempted to severely restrict the use of drop boxes by limiting where ballots can be returned to the clerk’s office, an early voting site, a ballot collection event, or a polling place. Existing law does not address drop boxes, but standalone drop boxes sited for voter convenience were used at a small scale in Wisconsin for years and became widespread in 2020, with clerks relying on the Wisconsin Election Commission’s interpretation of existing statutes. This bill passed both legislative chambers, but – with the support of pro-voter advocates – Governor Tony Evers vetoed it.
In Pennsylvania, H.B. 1300 would have restricted the use of drop boxes by requiring them to be staffed by at least one paid inspector of elections from each of the two political parties with the highest number of voters in the state and by requiring them to be monitored by video during all hours of operation (with recordings retained for two years). Current law does not require staffing or video monitoring for drop boxes, and drop boxes were widely used in 2020. Governor Tom Wolf vetoed this legislation. (Legislators have introduced a new elections bill, H.B. 1800, with these same provisions. It is likely to meet the same fate.)
Enacting Much Good
Early voting. 2021 has been a banner year for expanding early voting in states across the political spectrum. 2020 saw a record number of voters take advantage of early in-person voting – 30.6 percent of the total ballots cast were done so in person before Election Day. Many states expanded early voting temporarily in 2020 to reduce the pressure on Election Day voting and facilitate safer voting options during the pandemic. Voters took advantage of these expanded options, and a number of states responded this session by making permanent expansions to early voting availability. For example:
- Kentucky, one of the few states with no early voting opportunities before 2020, passed H.B. 574, creating three days of early voting throughout the Bluegrass State.
- Texas expanded mandatory weekend early voting hours in S.B. 1. Now counties with a population of at least 55,000 – previously the cutoff was 100,000 – are required to have 12 hours of Saturday voting and 6 hours of Sunday voting.
- Oklahoma expanded early voting hours for major election years.
- New Jersey enacted a law creating Election-Day style early voting.
- Connecticut got one big step closer to offering early voting: Its legislature passed a resolution proposing a constitutional amendment that would abolish the constitutional restriction on in-person early voting. This constitutional amendment will be put to the voters in November 2022. If adopted, the legislature would then be able to establish in-person early voting, which is likely to happen.
Ballot tracking. One thing that both Texas and California agree on is that allowing voters to track their ballots online helps increase voter confidence that their mail ballot has been received and is counted. Eight states from across the political spectrum enacted laws requiring, expanding, or permitting ballot tracking this year.
Ballot cure. Twelve states enacted legislation that improves voters’ ability to correct errors with the paperwork accompanying their mail ballots. This includes expanded requirements to notify voters about errors that may prevent their ballots from being counted, as well as additional options for voters to fix these errors. In Indiana, for example, the new cure provisions codified a court-ordered process. Some other notable legislation expanding voters’ ability to have their ballots counted include:
- Iowa extended the time period in which a voter can complete an affidavit to cure a missing signature on their ballot envelope, allowing voters until the close of polls on Election Day – rather than cutting off cure time the day before Election Day.
- Kentucky mandated notice and opportunity to cure for voters whose signatures are flagged as mismatches. Previously, the law required comparison between the signature on the voter’s ballot envelope and their voter registration card, and did not require notice of a mismatch or the opportunity to cure.
- Maine created a mandatory cure process which includes a requirement that voters be notified of a defect within one business day of the defect’s detection.
- Texas created a mandatory cure process in which election officials must provide notice and an opportunity to cure small errors or add missing information to their ballot envelope. Prior law provided no opportunity to correct errors.
All told, there is a lot to celebrate and be proud of from the 2021 legislative sessions. If you want to spread the word and share the good news, please consider sending this post around to your colleagues and networks – or sharing it on LinkedIn, Facebook, or Twitter.