As we head into October, the 2022 general elections are officially upon us. Nearly every state in the country has changed its election law in some way since 2018, with many of these changes coming after – and sometimes in response to – the 2020 election and the many false claims made about it. Last month, as voters registered to vote and applied for mail ballots, and as states updated their voter lists, we examined changes made to voter registration, list maintenance, and mail ballot application processes that voters might experience this year. (1)
This month, with early voting underway in many states and millions of voters receiving their absentee ballots, we turn to changes to in-person early voting, the rules voters must follow to complete and return their mail ballots, and the ways officials will verify and count mail ballots.
The Context
In the leadup to the 2020 election, in the face of the global COVID-19 pandemic, many states amended their election rules so voters could cast a ballot without risking their health. Though the use of mail and early voting had been growing steadily prior to 2020, one outcome of these 2020 voting accomodations was a significant increase in the use of these two vote methods. National data analyzed by Voting Rights Lab shows that early and mail voting accounted for nearly two-thirds of the total vote in the 2020 presidential election.
In the aftermath of the 2020 election – and in conjunction with the rise of the Big Lie and other false claims about the security of mail voting – state lawmakers across the country began proposing changes to the laws governing early and mail voting. Our team has been documenting a stark divide between the states taking steps to make voting more accessible by increasing access to these voting methods, and the states making it more difficult.
Early voting has emerged as a bright spot, with states nearly universally working to expand access. Mail voting, on the other hand, showcases the growing divide between states on voting access. Depending on their zip code, voters will have very different experiences in 2022 when it comes to mail voting.
Let’s take a closer look at what’s changed since 2020.
Availability of In-Person Early Voting
Early voting has proved to be one of few issues on which a vast majority of states are headed in a positive direction. Before the 2020 election, seven states did not offer any in-person early voting. We are now poised to potentially see that number drop down to only three states in 2022 – remarkable progress over just two legislative sessions. Further, many states have made improvements to existing systems. Heading into the 2022 general election, voters in numerous states will have substantially more access to early voting versus 2018 in terms of days, hours, or locations offered.
In 2021, 16 states took action to expand or facilitate early voting. Kentucky created early voting for the first time, offering it on Thursday through Saturday before Election Day. New Jersey began offering “Election Day-style” early voting, in addition to the in-person absentee voting it already provided. Indiana authorized a third Saturday of early voting, and Virginia allowed early voting on Sundays. Louisiana granted registrars the discretion to open more than one early voting location and, for Presidential elections, added early voting days. Maryland and New York added early voting locations and hours, while Oklahoma added days and hours. Nevada mandated minimum numbers of early voting locations based on population, and Connecticut completed the legislative aspect of amending the state constitution to allow early voting; it will be on the ballot this November.
The trend of expanding in-person early voting continued in 2022. Missouri and South Carolina enacted laws creating early voting for the first time. Massachusetts expanded the election types that must include early voting, increased the number of early voting days, and added weekend early voting. Kentucky improved upon its new early voting law by requiring eight hours of voting on the Thursday, Friday, and Saturday before Election Day, between 6 a.m. and 8 p.m.
In Georgia and Texas, 2021 restrictive omnibus legislation also included some improvements to early voting. Georgia’s S.B. 202 expanded weekend early voting for general elections. However, the bill also sharply limited early voting for runoff elections, like the one that elected U.S. Senators Ossoff and Warnock in 2020. This change may be impactful this year. Texas’ S.B. 1 expanded early voting access by increasing the number of counties required to offer additional hours and mandatory weekend days, but additionally restricted it by putting a ceiling on the number of hours of early voting a county could choose to offer. This new restriction will block Harris County from offering its popular 24-hour voting again.
Iowa is the only state to exclusively restrict early voting since 2020. In 2021, the state shortened its early voting period by nine days and made it harder for voters to petition for an early voting site.
Completing and Returning Mail Ballots
Ballot Completion Rules: IDs, ID Numbers, Witnesses, and Notaries
To vote by mail, people must do more than fill out the ballot – they must also complete a certificate on the ballot envelope in which they attest to their identity and eligibility to vote. Rules for these certificates vary widely, and in 2021 and 2022, some states added new restrictions that have resulted in disenfranchising registered voters.
Texas’ S.B. 1, which took effect this year, requires voters to put their driver’s license number, state ID number, or the last four digits of their Social Security number (SSN4) on their ballot envelope – whichever the voter has on file. If a voter fails to include their number, supplies a number different than what their election official has on file, or makes a mistake writing in their number, the voter’s ballot is rejected. So far, over 24,000 Texas voters have been disenfranchised by this rule. It’s been reported that in the state’s largest county, Harris County, ballot rejections disproportionately affected Black voters.
Georgia’s S.B. 202 also imposed a new requirement that voters provide a state-issued ID number (if they have one) or their SSN4 on their ballot return envelope. Voters who do not have either must enclose a copy of alternative ID with their ballot. Arkansas tightened their mail ballot return ID requirements in 2021. The Arizona legislature put a ballot ID measure on the November ballot that will, if passed, require voters to put an ID number on their ballot return envelope. Pennsylvania began the process of amending its constitution to require an ID number as well.
This year, Rhode Island went the other direction, making it less likely that registered voters will be disenfranchised by eliminating the requirement that voters have their ballot certificate signature witnessed or notarized.
Drop Boxes
Secure drop boxes provide a safe and convenient way for voters to return mail ballots. While states are divided on the issue, in both 2021 and 2022, more states expanded drop box access than restricted it. In 2021, 13 states enacted legislation authorizing, requiring, and/or expanding drop boxes or other ballot return options, while five states restricted it. In 2022, four states expanded drop box availability, while four other states restricted it.
Good news in 2021 included Virginia requiring drop boxes at election offices and voting locations, while also authorizing them elsewhere. Kentucky required one per jurisdiction and authorized more. In 2022, highlights include Massachusetts authorizing drop boxes for the first time, and Utah requiring officials to offer at least one in their jurisdictions and allowing more.
Though many states did expand access to drop boxes, others severely restricted it. Missouri, Arkansas, and South Carolina have all enacted drop box bans since 2020. Wisconsin voters, who used drop boxes across the state in 2020, will not have them this year because of litigation last summer.
In other states, new legislation restricts drop boxes, without fully prohibiting them. For example, Georgia S.B. 202 prohibits drop boxes unless they are located inside early voting locations, open only while early voting is taking place, and under constant surveillance. Florida enacted restrictions in both 2021 and 2022, limiting where drop boxes could be placed and the days and hours they could be open. Florida’s restrictions also require all drop box locations to be staffed, and impose a $25,000 penalty on election officials who offer drop boxes outside of the rules.
Who Can Return a Ballot
While many voters simply appreciate having the option to ask a spouse, friend, or agent to return their ballot for them, for disabled voters, not having assistance with ballot return can lead to disenfranchisement. When litigation in Wisconsin prohibited anyone from returning a ballot for a voter, voters with disabilities successfully sued to enforce their federal right to voting assistance under the Voting Rights Act, including assistance with returning their ballot. This recent decision only applies to voters with disabilities – all other Wisconsin voters head into November having lost access to this useful assistance.
Other states have codified restrictions on ballot return. In 2021, nine states enacted legislation restricting who a voter could choose to return their ballot or how many ballots a person could return for voters, or imposed other requirements on people returning ballots for voters. This year, South Carolina imposed several restrictions, while Florida increased criminal penalties for people who return more than two ballots for people outside their immediate family or household.
In contrast, a few states did expand voters’ ability to choose someone to return their ballot for them. In 2021, as part of adopting vote-by-mail elections, Nevada expressly allowed voters this choice, while Indiana allowed voters to choose family members in addition to household members and attorneys-in-fact. Iowa expanded the definition of “immediate family” to increase voters’ choices.
Ballot Return Deadlines
The most basic mail voting rule is the return deadline. In 2021, Arkansas shortened the ballot return deadline from the close of polls to the Friday before Election Day. Iowa required ballots to be returned by close of polls, whereas previous law required ballots be delivered in person by close of polls, or postmarked on or before the day before Election Day and received by the Monday after Election Day.
Indiana and Oregon went the other direction in 2021, giving voters more time to return their ballots.
In 2022, no state has changed when a voter must return their ballot.
Curing Errors on Ballot Certificates
If a ballot is rejected because the voter made an error on their ballot certificate, such as forgetting to sign it or forgetting to include an ID number, some states will notify the voter and give them an opportunity to fix or “cure” the mistake so their ballot may count.
Ballot curing is one mail voting issue where we’ve seen near-exclusive positive progress nationwide. No state has newly-eliminated cure in the last two years. The only state to revert on this issue is Wisconsin, where litigation recently eliminated a discretionary process that municipal clerks often used to complete missing witness address details and ensure affected ballots were counted. Because the process was discretionary, not required, Wisconsin never had a statewide cure process. Nonetheless, more voters will now risk disenfranchisement due to this litigation.
In 2021, nine states created or improved cure processes. In 2022 Louisiana mandated a uniform, statewide process, improving on the procedures in place. The Arizona ballot initiative that would require an ID number on the ballot envelope would also expand the state’s existing cure process to address ID numbers.
This November, more voters than ever before will be able to ensure their votes are counted if they make a mistake on their ballot. However, it is important to note that 19 states offer no cure, continuing to deny their voters a chance to fix these issues.
Conclusion
With early voting and mail voting underway for the 2022 general election, millions of voters across the country will have a different experience than they did in 2018 – and for some, where they live will largely determine whether voting has become more accessible or more burdensome. While some voters will have new opportunities to vote and/or ensure their vote counts, others will face new barriers or face greater risk of disenfranchisement. Our team will be monitoring how new laws governing mail and early voting – and the options for returning a completed ballot – may impact voters across the country in the coming weeks.
Footnotes
(1) In our August post, we described a new Delaware law creating no-excuse mail voting and Montana law restricting same-day registration. Since then, litigation has restored same-day registration on Election Day in Montana, while a Delaware judge blocked no-excuse mail voting, holding the state constitution requires voters to provide an excuse in order to vote by mail. The decision is being appealed, and election officials have been allowed to continue preparing to mail ballots to those who have applied for them while the appeal pends. Ballots cannot be mailed, however, unless the state Supreme Court reverses the decision. The appeal will be argued before that court on October 8.