Elections & Campaigns
FEC Ruling Clarifies When the Federal Election Campaign Act Regulates Ballot Initiatives, But Controversy Remains
November 19, 2021 | David Frulla, Katrina Hatahet, Kelley Drye & Warren
The COVID-19 pandemic coincided with a major election in 2020, which left states scrambling to amend voting laws — particularly around absentee/mailed ballots — to allow electors to cast their ballots safely. Balancing access to the ballot with security concerns is a major issue for state policymakers before the 2022 elections. This is the second installment of a three-part series covering current election laws and recent legislation to amend these laws. Read our first installment: How Do States Address Voting Registration and Eligibility? This series pairs with MultiState's State Voting and Election Laws Landing Page and Dashboard, where we’ll be keeping track of this vital issue moving forward.
Last week we examined: Who is eligible to vote? And how can eligible voters register for upcoming elections? This week, the questions we’ll tackle while examining voting and election laws in the states are: Who is eligible to vote by absentee/mailed ballots? And what are the rules surrounding absentee/mailed ballots? So far, state lawmakers have introduced over 500 bills addressing absentee voting and over 300 bills on mail-in voting.
Voting through an absentee/mailed ballot became a huge issue during the 2020 elections in response to the COVID-19 pandemic. States temporarily expanded the availability of absentee/mailed ballots in 2020 in order to avoid large crowds on election day that could spread COVID-19. But now that a majority of the country is vaccinated and the COVID-19 case numbers have dropped significantly, states must decide whether to keep or expand any of these temporary absentee/mailed ballot rules for their next set of elections. This is why we expect absentee/mailed ballots to be one of the biggest trends in voting and election legislation in the states over the next few years. Below, we review current law and recent legislative changes in the states on six specific absentee/mailed ballot issue areas.
Even before the pandemic hit, five states ran their electoral system almost entirely through mail ballots. Every registered voter in Washington, Oregon, Hawaii, Utah, and Colorado receives a mail-in ballot by default. Voters then submit completed ballots by mail or deposit them at designated drop sites.
Yesterday, Nevada Governor Steve Sisolak signed legislation into law (AB 321) to enact all-mail voting in Nevada. The law requires registered voters in the state to opt-out if they do not wish to receive a mail-in ballot. Similar to other all-mail voting states, electors may still choose to vote in person on election day if they prefer. When the law goes into effect in 2022, Nevada will become the sixth all-mail voting state.
Currently, 34 states allow electors to vote by absentee/mail-in ballot without additional qualifications or excuses to do so. The remaining states require a reason for a voter to cast a ballot by mail instead of in person.
State lawmakers have introduced dozens of bills during this year’s legislative sessions that would either enact no-excuse absentee/mailed ballots or repeal current no-excuse absentee/mailed ballot laws. So far, as many legislative sessions come to an end, none of these bills have become enacted into law.
This year, lawmakers in Connecticut tried to pass a proposed constitutional amendment (HJ 58) that would allow the legislature to decide on absentee ballot rules such as allowing no-excuse absentee/mailed ballots. Currently, rules for absentee voting are enshrined in the state constitution. If the proposed constitutional amendment had passed, which required a supermajority of ¾ of lawmakers, the referendum would have gone to the voters for their approval in 2022. Alternatively, lawmakers may pass the proposed constitutional amendment by a simple majority in two successive legislatures (e.g., 2021 and 2023) and then put the question before the voters (e.g., in 2024 at the earliest).
Eligible electors that wish to submit an absentee/mail ballot must submit a request to receive an absentee/ballot by a certain date. This deadline varies by state but is generally in the 7-14 day range.
Georgia enacted a law (SB 202) in 2021 that changes the deadline to request an absentee before election day from four days to eleven. The law also shortens the amount of time voters have to request absentee ballots from six months before the election to three months before.
This year, Florida passed legislation (SB 90) that requires an elector, in order to request an absentee ballot, to provide the elector’s Florida driver license number, the elector’s Florida identification card number, or the last four digits of the elector’s social security number. The law also requires voters to request an absentee ballot for each two-year election cycle, rather than every four years, under the previous law.
Iowa lawmakers passed legislation (SF 413) that shortens the time period that applications for absentee ballots may begin from 120 days before the election to only 70 days before the election. The deadline for absentee ballot applications remained the same at 10 days before the election.
In order to return an absentee/mail ballot, some states require one, or some combination of, a copy of a voter identification that meets defined requirements, the signature of a witness, or the signature of a licensed notary. A majority of states verify identity through signature-matching or by asking for a driver's license or other identification number.
Among other provisions, Georgia’s 2021 election law (SB 202) requires electors returning an absentee ballot to, in addition to swearing an oath printed on the absentee ballot envelope, include either the elector’s driver's license number, state ID number or, if the elector does not have any of those documents, a copy of an acceptable voter ID.
Montana lawmakers enacted a law (SB 169) this year that requires electors returning an absentee ballot to provide either the elector's Montana driver's license number, Montana state identification card number, or the last four digits of the applicant's social security number.
This year, Arkansas lawmakers enacted a law (SB 643) that requires signatures on absentee ballots to be compared to and match the signatures on voters’ original registration certificates. Idaho lawmakers passed a law in 2021 (HB 290) that requires the county clerk to verify the signature of an absentee ballot matches the signature from the elector's voter registration. Kansas enacted a similar measure this year (HB 2183).
Most states require that absentee/mailed ballots be received by the time polls close on election day (although hours vary). However, a handful of states will accept absentee/mailed ballots if they are postmarked by election day and received for a limited number of days after the election. A smaller number of states will accept absentee/mailed ballots received for a limited number of days but only if they are postmarked by the day prior to the election.
Indiana enacted a law this year (SB 398) that extends the time that absentee ballots must be received from noon to 6:00 pm on the day of the election. Indiana does not accept postmarked ballots that arrive after election day.
Iowa lawmakers passed a bill (SF 413) this legislative session that requires absentee ballots be received by the time the polls close on the day of the election. Previously, Iowa law allowed absentee ballots to be postmarked by the day before election day and received no later than the Monday following election day. Under the new law, Iowa will no longer accept postmarked ballots that arrive after election day.
Under the all-mail voting system that Nevada will implement in 2022 after passing legislation this week (AB 321), mailed ballots must be received by 5:00 pm on the fourth day following an election. Under the current system, absentee ballots must be postmarked by election day and received no later than 5:00 pm 7 days after the election.
In response to the COVID-19 pandemic, many states allowed temporary use of ballot drop boxes located throughout the state. Several states have already enacted statutes or rules allowing drop boxes in future elections and rules surrounding drop box security. We anticipate this being an active legislative issue before the next major election in many states.
While many states may implicitly allow ballot drop boxes following the 2020 pandemic year elections, a little over a dozen states have passed legislation in 2021 to explicitly allow ballot drop boxes. A key difference here is whether a state simply allows a county to use drop boxes or requires drop box use. Some states explicitly limit the number of drop boxes that may be used per jurisdiction (e.g., Iowa and Georgia) while others set a minimum number of drop boxes that must be used per jurisdiction (e.g., Colorado and Kentucky).
Next week’s third and final installment of MultiState’s election laws blog post series will cover legislation around in-person voting. In the meantime, check out MultiState's State Voting and Election Laws Landing Page and Dashboard, where we’ll be keeping track of this vital issue moving forward.
November 19, 2021 | David Frulla, Katrina Hatahet, Kelley Drye & Warren
November 4, 2021 | Bill Kramer
November 1, 2021 | Max Rieper