Latest NCSL Canvass Looks Back at 2017 Election Legislation

[Image via NCSL]

The January 2018 edition of the National Conference of State Legislatures’ Canvass newsletter is out with an overview of election legislation across the nation in 2017:

Now that everyone has had a chance to ring in the new year and clear their heads, it’s time to take a sober look back at 2017 election administration legislation …

This past year tracked similarly to other years this decade both in the total number of bills introduced (2,373) and in the total number enacted (267). Every state and the District of Columbia introduced at least one elections bill, and 42 states enacted at least one. [The online version has a nice graphic here. – DMCj] Seen from this perspective, America’s representative democracy is steady and stable.

Summary of 2017 Action

In 2017, security concerns dominated—no surprise when election cybersecurity grabbed headlines in and after the 2016 election, and in turn grabbed the attention of legislators as the top election-related issue of the year.

While “security” includes obvious issues such as funding for elections equipment and technology, post-election auditing and management of voter registration lists, it touches nearly every aspect of elections. Second, the voter experience, or how we vote, matters. In 2017 states enacted legislation in the key areas of voter registration, absentee voting, voter ID, and the voting rights of felons. We’ll address below each of these topics one by one, offering highlights as we see ‘em. For more complete details, check out NCSL’s new page on 2017 election legislation… 

Elections Equipment, Technology and Funding

A total of 10 states enacted 19 bills on elections technology and equipment. Many were minor. Rhode Island passed five clean-up bills and Arkansas set deadlines to conduct logic and accuracy testing.

Potentially more significant was New Mexico’s move to establish procedures for visually impaired voters to use remote ballot marking—essentially preparing their ballots and sending them back electronically. New Mexico’s fiscal impact report on the bill tells more. 

Arguably the biggest trend in elections technology legislation was an uptick in states providing state funding. Michigan’s legislature appropriated $10 million as part of an $40 million package that also includes leftover funds from the 2002 Help American Vote Act and county dollars.

Nevada appropriated $8 million for voting technology replacement. Minnesota dedicated $7 million as part of a grant program to fund 75 percent of the cost of electronic poll books and 50 percent for voting equipment. Utah appropriated $275,000, with the distribution to counties based on its number of active voters.

Iowa has created a loan fund for counties to draw on, although funds have not yet been appropriated. Funding measures in North Dakota and Nebraska failed; perhaps the decline in the prices of natural gas and corn had something to do with it.

Audits

Post-election audits also garnered attention and support from state legislatures. Iowa, Rhode Island, Virginia, and Washington passed bills in this area. Most notable from this group, however, is Rhode Island and Virginiawhich both authorized risk-limiting audits.

The two states follow Colorado, which became the first state to require this kind of audit for use throughout the state, and New Mexico and North Carolina with similar requirements for audits based on differing numbers of ballots to be audited, depending on the margin of victory. As part of a comprehensive bill that included voter ID, Iowa created a post-election audit requirement too, with details to be worked out by state election officials.

Washington enhanced its reconciliation reports and required them to be posted publicly online. And as part of a much larger elections bill, Mississippi included a section on ballot accounting reports which are to be prepared by poll managers and placed into a sealed, tamper-evident ballot box.

Voter Registration Lists

Joining interstate compacts such as Electronic Registration Information Center (ERIC) was a trend in recent years, but not so much in 2017. No states adopted online voter registration, and only New Hampshire passed a bill addressing interstate data matching by requiring its secretary of state to investigate matches resulting from interstate comparisons.

Without legislation, Arizona joined ERIC in 2017, and since Jan. 1 Missouri has joined, making a total of 23 member-states.

Instead, registration list maintenance, aside from interstate data matching, was hot, and so were bills addressing the use of voter lists. In terms of maintenance, 119 bills were introduced (the most of any topic) with 21 enactments in 16 states. 

For the use, distribution and sale of lists, 46 bills were introduced, with six enactments in five states. Several were introduced in reaction to the information requests made by the now-dissolved Presidential Advisory Commission on Election Integrity. Only Washington D.C. enacted legislation that directly challenged requests made by the Presidential Advisory Commission on Election Integrity (PACEI). The PACEI requests came late in the legislative season. Whether 2018 will see more bills aimed at the question of who can get voter rolls, and how much information can be provided, is yet to be seen.

In other list-use news, South Dakota enacted legislation that clarified how its voter lists may be used, adding that the information is not to be posted online for unlimited access, and increasing penalties for violating the law.

Bills in Texas and Utah dealt with removing people from the rolls. The Texas bill has the secretary of state withhold payments from county registrars if they are not registering voters and maintaining voter lists as required. In Utah’s bill, officials must now remove a voter’s name within five days of receiving confirmation of a voter’s death, down from the previous 21-day limit.  The National Association of Secretaries of State has an excellent new resource on list maintenance in all the states.

Voter Registration Itself

The voter experience usually starts with registration. The big trend of the past was online voter registration, which got no traction in 2017. Instead, automatic voter registration moved ahead, with Illinois and Rhode Island passing automatic voter registration, and Colorado doing so administratively. (NCSL is still wrestling with what’s automatic voter registration and what’s an automated transfer of data between motor vehicle agencies and registration agencies. Opinions are welcome.)

Meanwhile, Indiana made the registration process easier, requiring motor vehicle bureau or department workers to ask whether an individual would like to also register to vote via a paper application. Oklahoma made changes in a similar vein so that a change of address for a driver’s license or state ID card submitted by a registered voter also changes their address for voter registration purposes.

California now allows military members who are required to move under official active duty to register after the close of registration. Delaware has eliminated a requirement that election officials mail something to a new registrant and wait 10 days to see if the mail returns as undeliverable before adding that person to the list, reducing an administrative burden. The state also updated its code to clarify  that voters can register at any county department of elections regardless of the county of actual residence. (Delaware has just three counties.)

Preregistration continued its march forward. Nevada will allow 17-year-olds to preregister, and Oregon will allow 16-year-olds to preregister. In Iowa, if an eligible voter will be least 18 years old by the date of the respective general election or city election, then they may vote in a primary election.  California now requires election officials to confirm receipt of registration for preregistered voters via text message or email.

Mail and Absentee Ballots

As pre-Election Day voting continues to increase, everything related to the mechanics of the policy  received increased attention in 2017—especially when it comes to absentee or mail ballots. In Montana, residents can become a permanent absentee voter if they keep the same address; this is already true in seven other states and the District of Columbia.

And Arizona passed a bill ensuring that ballot envelopes do not reveal vote selections.

In Delaware, lawmakers removed the requirement that an absentee ballot be notarized. Three states address what happens if an absentee ballot is rejected. Florida now requires immediate notification if there is a problem with the signature so the voter can fix the problem. Similarly, in Utah a voter must now be given the reason why their absentee ballot was rejected so they can submit a new, correct ballot if there is enough time before Election Day. Arkansas added to its statute the requirement that voters be alerted if their absentee ballot has been rejected.

Voter ID

Voter identification continued to generate lots of legislation last year, with 113 bills in 37 states, and six enactments. Iowa stole the show by enacting voter identification (HF 516), which included mailing free voter identification cards to people who were registered to vote, but did not have a driver’s license or state-issued ID card.

Texas alone considered 22 bills on the subject. It enacted SB 5, which is expected to be in effect for this year’s elections. After originally enacting its own voter ID law in 2013 and amending it 2015, North Dakota has amended it once again this past year. Arkansas got a second bite at the apple, after enacting a voter ID bill in 2013 that was struck down in state court. The new law requires that a voter provide verification of voter registration when voting. And finally, while not strictly on voter ID, New Hampshire now requires the secretary of state to investigate when letters that are sent to registered voters that are returned as undeliverable…

Felon Voting Rights

The voting rights of felons generated 67 bills across 23 states, with six enactments. All six moved in the direction of returning the right to vote earlier in the process—even in the case of Mississippi, where it’s bill restored the voting rights of a single individual. Alabama clarified its “moral turpitude” clause by identifying 47 crimes that constitute moral turpitude. The change gained some attention during the recent U.S. Senate special election.

In California, the Department of Corrections and Rehabilitation as well as county probation departments must now establish and maintain websites regarding the voting rights for people with a criminal history. Nevada’s new law provides that a probationer, parolee or person who completed their sentence and was released from prison is, with certain exceptions, immediately restored the right to vote. Those with a category B felony conviction (that did not result in substantial bodily harm) will have their right to vote restored two years after their discharge from probation, discharge from parole or release from prison. And finally, Wyoming will now automatically restore the voting rights of non-violent felony offenders. 

And 2018?

If the past is prologue, then 2017 bills may give some indications on what will be coming from legislatures in 2018.  More on voter list maintenance? Cybersecurity? Fine-tuning voting procedures? See NCSL’s elections legislation database for the first 800 or so bills introduced this year. And for round-ups for earlier years check these resources: 20142015 and 2016.

Wendy Underhill and her colleagues at NCSL perform an incredibly valuable service for the election community by giving us all a window into state capitols across the nation. Thanks to them for their work keeping abreast of legislative developments across America … stay tuned!

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