Where the Rubber Meets the Road: How Virginia and New Jersey Are Putting Recent Voting Law Changes into Effect

by Elizabeth Grossman

September 28, 2021

State legislatures have been working overtime to pass voting laws this year, with 2,661 bills introduced and 226 bills in 45 states enacted so far. Most states won’t hold statewide elections until 2022, and we’ll be eagerly watching to see how these new laws shape those elections. But for two states – Virginia and New Jersey – we don’t have to wait quite so long since both states are conducting elections on November 2, 2021, with state legislators, the governor, and other statewide offices on the ballot. Both states have passed consequential voting changes that expand voting access this year.1

Virginia

With the entire 100-member House of Delegates on the ballot, as well as statewide offices for governor, lieutenant governor, and attorney general, this is an important election year in the Commonwealth of Virginia. Virginia has gone through a lot of changes in how they cast their ballots over the last five years. In fact, according to a ranking from researchers at Northern Illinois University, Virginia has gone from one of the hardest states to vote in, in 2016, to one of the easiest in 2020. And the trend continues. This year, Virginia voters have more options than they have ever had to cast a ballot. 

While many legislatures in other states have pushed to tighten voting rules, Virginia lawmakers and Governor Ralph Northam have enacted 14 bills this past session to increase voter access, whether they choose to vote by mail, early and in person, or on Election Day. Voting in Virginia is already underway for the November election since Virginia provides early voting starting 45 days before Election Day. 

The changes that are new this election cycle include:

Better access to mail ballots. In 2020, the first election in which Virginia offered no-excuse absentee voting, a whopping 22 percent of voters requested mail ballots. Changes to elections laws in 2021 make it easier for voters to exercise this option for voting. 

  • Permanent absentee list: Virginia voters now have the option to sign up to automatically receive a mail ballot before every election rather than applying each time separately. Sixteen other states give voters this option (or just automatically send ballots to active voters before every election with no signup required). 
  • Lifting barrier on first-time voters: First-time Virginia voters who registered by mail are no longer required to vote in person and may choose to vote by mail. 
  • Improved access for voters with disabilities: Voters with visual impairments or print disability will be able to electronically receive and mark an absentee ballot using a screen-assisted ballot making tool provided by the Department of Elections. 
  • Emergency absentee ballots: Voters who are unexpectedly incapacitated on Election Day due to an emergency are now eligible to request an Emergency Absentee Ballot through a designated representative. 

Improved mail ballot return options. In addition to easing the process to receive a mail ballot, Virginia is also making it easier to return mail ballots. 

  • Drop Boxes: Local election officials are required to place secure drop boxes for voters to return completed, sealed mail ballots at every registrar’s office and each early voting and Election Day voting location. They may provide additional drop-off locations at their discretion. 
  • Prepaid return postage: Additionally, election officials are required to provide prepaid return postage for mail ballots.

Ensuring mail ballots are counted. Easing witness requirement during states of emergency: For elections held during a public health state of emergency, failure to have a witness sign the absentee ballot return form is no longer grounds for having a mail ballot rejected. This is an area where Virginia law can be improved: The witness requirement is an unnecessarily strict barrier to voters exercising their freedom to vote by mail. Only 11 other states2 have such a requirement. 

Notice and cure. Virginia instituted a statewide process requiring that election officials notify voters of errors on their mail ballots that could lead to the ballots’ rejection and to provide those voters an opportunity to cure the errors and have their votes counted. 

Eliminates rejection for technical errors: The new law also eliminates ballot rejection for technical errors that have no bearing on ballot security, such as omitting a middle initial from the ballot signature. 

Early processing of mail ballots. New Virginia law requires that election officials begin processing mail ballots on receipt from the voter. This provision gives election officials additional time to complete verification and counting accurately, to report results quickly, and to provide voters notice of issues with their mail ballots.

Early voting on Sundays. For the first time, local election officials are now permitted to offer early voting on Sundays. In areas that choose to participate, this could allow churches to implement the kind of “Souls to the Polls” program that has been popular in states like Georgia and instrumental in increasing turnout among Black voters.

Curbside voting on Election Day. The Virginia legislature expanded a provision normally reserved for elderly voters or voters with disabilities to allow all voters to be able to vote outside their polling place during a declared state of emergency related to a communicable disease of public health threat. That means all voters concerned about COVID-19 have the option of voting curbside on Election Day.

New Jersey

New Jersey is the only state with both legislative chambers up for re-election this year, which includes 80 members of the General Assembly and 40 state senators. Voters will also choose their governor and lieutenant governor. Additionally, there are two constitutional amendments on the ballot this year.

The biggest change in the Garden State is that this is the first election with Election Day-style early voting, thanks to the passage of S.B. 3203. Much like they would on Election Day, voters go to voting centers or polling places and fill out their ballot on a machine as they would on Election Day, and typically place it directly in a ballot scanner. In contrast, in-person absentee voting takes place at the county clerk’s office during regular office hours and the voter must first fill out an absentee ballot application before receiving a ballot. The ballot is then placed in a secure envelope and set aside to be processed and tabulated later.

Election Day-style early voting requires less paperwork for clerks, and minimizes opportunities for ballots to be rejected because of errors on paperwork. Twenty-one states, more than half of those offering early voting, offer in-person early voting.

New Jersey has also expanded secure drop box availability for mail voting this year.

Early voting. All counties are required to offer Election Day-style early voting 10 days before the general election, to end two days before Election Day. Counties must provide between three and ten locations for early voting, depending on their population size, and may provide additional early voting locations at their discretion. Counties are required to consider geography and population density when selecting early voting locations, but voters may also vote early at any location in the county, regardless of their registered address.

Early voting must be available Monday-Saturday 10 a.m. to 8 p.m. and Sunday 10 a.m. to 6 p.m. Previously, voters in New Jersey did not have an option to vote early on weekends or evenings. Election officials must send information about the days, hours, and locations for early voting along with notices of elections and sample ballots that are mailed to voters.

Early voters, just like voters on Election Day, are not required to show identification or fill out any paperwork. In-person absentee voters are not required to show identification, but they are required to fill out an application.

In addition to the new availability of Election Day-style early voting, voters are still able to request and fill out an absentee ballot at the county clerk’s office beginning 45 days before Election Day, until 3 p.m. the day before Election Day, as they could in previous years. Typically, early voting in this manner is available during the regular hours of the clerk’s office, and the voter would wait in line along with those conducting other business at the clerk’s office.

Drop boxes. A.B. 5373 makes changes to New Jersey’s pre-existing drop box requirement. In 2020, some criticized secure drop box placements for their inequitable distribution. This year, counties are required to consider criteria like travel time, proximity to voting locations, and commuter traffic patterns when determining secure drop box placement. Drop boxes must be provided in any municipality with an average or per capita income at or below 250% of the federal poverty guideline whenever possible, and two drop boxes should not be less than 2,000 feet apart. Finally, counties must post the location of drop boxes on the county’s website, at least 45 days before an election, and provide a list of locations with the vote-by-mail ballot materials sent to voters, so that voters can easily access them.

Notes

[1] For more on which states are expanding voting access and which are restricting it, see our report analyzing our divided democracy.

[2] Alaska, Alabama, Louisiana, Minnesota, Missouri, Mississippi, North Carolina, Oklahoma, Rhode Island, South Carolina, Wisconsin.

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