Lawmakers Push to Preserve Pandemic Voting Access

By: - December 3, 2020 12:00 am

A Clark County, Nevada, election worker scans mail-in ballots in Las Vegas. Several states already are working to expand their mail-in and early voting systems through new legislation. John Locher/The Associated Press

Bolstered by a presidential election with the highest voter turnout in more than a century, state election officials and lawmakers—mostly Democrats, but also some Republicans—are working to codify many of the pandemic-specific changes that broadened ballot access over the past year.

But officials who want to permanently expand mail-in voting and other changes still face an uphill battle in conservative-leaning states where many Republican lawmakers, already hostile to expanding voting access, are parroting President Donald Trump’s false claims of election fraud.

Since Election Day, Democratic and Republican lawmakers in at least seven states have introduced legislation to expand ballot access by improving mail-in and early voting systems, according to an analysis by Stateline. Legislators in at least eight other states have said they plan to introduce similar bills.

In three states, lawmakers have introduced measures to restrict mail-in voting.

California Secretary of State Alex Padilla, a Democrat and one of the frontrunners to replace Vice President-elect Kamala Harris in the U.S. Senate, said in an interview with Stateline that he hopes many of these temporary changes will be made permanent nationwide.

“We saw how successful the election was in all the states,” he said. “I’m hoping that is proof to the wisdom of these changes.”

Amber McReynolds, the CEO of the National Vote at Home Institute, spent much of the past year guiding state lawmakers and local election officials with the mail-in voting best practices she learned during her 13-year tenure as Denver’s director of elections. State lawmakers across the country already are consulting with her over how to expand the use of drop boxes, develop ballot tracking software and improve ballot design.

After an election in which 65 million Americans voted by mail—higher than the number of people who voted in person on Election Day—there’s new political pressure to maintain and improve mail-in voting systems that were hastily built during a pandemic.

“Legislators can’t really shy away from that,” McReynolds said.

But lawmakers may have other priorities during legislative sessions still marred by COVID-19, as they face safety concerns, budget shortfalls and less urgency to immediately tackle election policies in states that do not have major statewide races in 2021.

Many of the measures that states likely will address in the coming months will be technical fixes and incremental expansions of their mail-in voting systems, she said. For example, delays in election results in swing states such as Michigan, Pennsylvania and Wisconsin were caused by statutes that did not allow officials to begin processing the flood of mail-in ballots until Election Day. Those statutes can be adjusted, she said.

In New Jersey, Democratic state Sen. Vin Gopal is proposing several measures to expand the state’s voting systems, including creating a task force to find improvements in the state’s vote-by-mail process and provide money for counties to purchase better ballot-counting equipment.

“It’s really a variety of clean-up items,” he said, “but also we want to see what we can do to make voting easier and gives the public full confidence.”

But other states are looking to fundamentally change the way they have voted since the 18th century.

‘The Genie is a Bit Out of the Bottle’

In the months leading up to the presidential election, several governors used the emergency powers granted to them during the pandemic to expand mail-in and early, in-person voting to avoid a potentially dangerous bottleneck of voters flooding to polling places on Election Day.

State election officials and lawmakers in 37 states made changes to voting laws this year, according to a count by Ballotpedia, a Wisconsin-based nonprofit that tracks state legislation and elections. Five states for the first time sent mail-in ballots to all eligible voters, 11 states sent mail-in ballot applications to all eligible voters and 12 states expanded eligibility for mail-in voting.

In Maryland, Republican Gov. Larry Hogan used his emergency powers to send mail-in ballot applications to every registered voter and to drastically reduce the number of traditional polling places in favor of larger vote centers. While state and local election officials lauded the changes, crediting them for a relatively successful election last month, they expire when the COVID-19 state of emergency ends.

Maryland Del. Eric Luedtke, the Democratic majority leader, wants to change that.

In the upcoming January session, Luedtke said the Democratic-controlled legislature will try to pass measures that would create a permanent absentee list, where voters automatically would be sent a mail-in ballot in future elections. State lawmakers also will explore expanding early voting periods and voter registration drives, while also establishing drop boxes as a permanent way to return mail-in ballots.

“The pandemic made clear just how much voters appreciate having choices in casting a ballot,” he said.

But for other states, permanently expanding mail-in and early voting access will be much more difficult.

For the past decade, Connecticut Secretary of State Denise Merrill has been trying unsuccessfully to amend her state’s constitution to allow for no-excuse absentee and early voting. The provision written into the state constitution in 1932 is a relic, she said, giving her and the legislature little flexibility to expand ballot access. Connecticut is one of just six states that require an excuse to vote absentee.

The proposed amendments require the support of three-quarters of both legislative chambers to make it onto the ballot for voters to decide, a high bar. While previous efforts earned a majority of lawmakers’ support, including one last year that would have allowed early voting, near-unanimous opposition from Republicans worried about fraud prevented the amendments from passing.

But now, Merrill is feeling more confident. The day after Election Day, she announced she would again propose amending the state constitution to allow for no-excuse absentee voting. The pandemic, she told Stateline in an interview, may prove key to the amendment’s success.

In July, the Democratic-controlled legislature passed a measure that allowed voters to use concern for COVID-19 as a legitimate excuse to vote absentee. Building on that legislation, Merrill then mailed absentee ballot request forms to every active, registered voter. Nearly 660,000 voters in the state voted absentee—a record. Merrill believes Connecticut voters will demand that these changes be made permanent.

“The genie is a bit out of the bottle,” she said. “People are not going to want to go backward.”

A Bipartisan Approach

In more conservative states, trying to expand voter access remains a challenge.

In her experience as a Republican official in “a very blue state,” Washington Secretary of State Kim Wyman said the best election laws and procedures implemented there in recent years to develop a mail-in voting system were bipartisan, emphasizing both security and access.

“If we do it in a straight partisan line, it’s a disservice to our constituents,” she said. “We have to approach this from that balanced perspective. Let’s stop talking about it in those partisan terms.”

That was the model in Kentucky this year.

When the pandemic struck, the Kentucky legislature granted flexibility to Democratic Gov. Andy Beshear and Republican Secretary of State Michael Adams to make changes, including allowing early voting and no-excuse absentee voting for the first time.

Adams never expected those changes would last past the pandemic, but after hearing feedback from voters and local election officials, he now wants to codify these temporary changes into state law.

Working with the state legislature this year, Adams is proposing measures that would establish an online absentee ballot request portal, create a process to fix mistakes on absentee ballots, replace the state’s precinct-level polling places with fewer but larger vote centers, and make early voting permanent. He met with the governor and leaders in the legislature this week to discuss the proposals and said there’s already support among GOP leaders.

“It never occurred to me to make it permanent,” Adams said. “But I’ve gotten a lot of legislators and local officials who like it. When you make the rules outcome-neutral, voters on both sides love that.”

Since Election Day, Republican state Sen. Jimmy Higdon has spoken with the three Republican and two Democratic county election clerks within his district, all of whom he said want to keep early voting.

“When you talk about the election process, there is some common ground and both sides of the aisle can come to an agreement,” he said. “We did something out of necessity, and it wasn’t as bad as we feared it would be.”

But not all Republicans in Kentucky agree. GOP state Sen. Damon Thayer generally opposes early voting and other expansions to the commonwealth’s voting laws, worried that it exposes the election system to fraud and delays. But more practically, Thayer said, the legislature won’t have the time to fully debate these measures in the upcoming 30-day legislative session that will be dominated by budget talks.

“I fail to see the urgency to make these changes in a year in which we don’t have any elections,” he said. “We’ve got time to let this settle and look at some possible minor changes. I’m not going to [support] three weeks of early voting. We did it to deal with a pandemic.”

In Texas, six Republican lawmakers have filed a series of bills that would, in part, prevent counties from sending unsolicited absentee ballot applications to all registered voters.

State Sen. Paul Bettencourt, one of the authors, said he wanted to codify recent Texas Supreme Court rulings and opinions by Republican Attorney General Ken Paxton that rejected the effort in Harris County, which includes Houston, to send mail-in ballot applications to all voters. This measure, he said, would prevent confusion among voters and save taxpayer money.

In a statement last month he added, “This bill … is about making sure all votes in Texas are counted legally.”

Democratic lawmakers in Texas, for their part, have filed around 50 election-related bills for the upcoming January session in Austin, some of which would allow online voter registration, ease voter ID restrictions and make Election Day a state holiday.

Fundamentally changing a state’s election laws takes time and must be done carefully, said Vermont Secretary of State Jim Condos, a Democrat.

Coming off record voter turnout in the Green Mountain State, Condos is planning to meet with a group of town clerks in the next couple weeks to see what worked. Vermont allowed several pandemic-related accommodations in 2020, such as mailing a ballot to every active registered voter with prepaid postage. But the authority the legislature granted to Condos to make those changes was only temporary.

If Vermont moves to a universal vote-by-mail model, which Condos feels it should, the state may have to rewrite the entire election statute, he said, because of so many intertwined policies around post-election audits, ballot processing timelines and decentralized ballot-counting. With no statewide elections in 2021, the upcoming legislative session—which typically runs from January to May—would give the state enough time to properly implement any substantial changes to elections before 2022.

“I want to do things right,” he said. “I don’t want to do things fast.”

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Matt Vasilogambros
Matt Vasilogambros

Matt Vasilogambros covers voting rights, gun laws and Western climate policy for Stateline. He lives in San Diego, California.