On this episode, we sat down with Amanda Zoch, an elections expert at NCSL, for a rundown on the trends in legislation affecting elections over the past few years. Zoch discusses how the pandemic affected access to early voting and voting by mail and what steps legislatures took once the most acute phase of the pandemic had passed. Legislation affecting election officials, including measures to keep them safe, were common in 2021 and 2022, Zoch says. She also explains the ballot measures voters supported that affected elections.
Ed: Hello and welcome to “Our American States," a podcast from the National Conference of State Legislatures. This podcast is all about legislatures, the people in them, the policies, process, and politics that shape them. I am your host, Ed Smith.
AZ: No state has repealed no excuse absentee voting or ah taken away you know if any of those permissions that had previously been granted in terms of access to voting by mail. Some temporary provisions were in place and then taken away, but again, no permanent policies were rolled back.
Ed: That was Amanda Zoch, an elections expert at NCSL and my guest on the podcast. We sat down to talk so that Zoch could give us a rundown on the trends of legislation affecting elections over the past few years. She discusses how the pandemic affected access to early voting and voting by mail and what steps legislatures took once the most acute phase of the pandemic had passed.
Legislation affecting election officials including measures to keep them safe were common in 2021 and 2022 Zoch says. She also explains the ballot measures voters supported that affected elections. Here is our discussion.
Mandy, thanks for coming on the podcast.
AZ: Thanks for having me Ed.
Ed: To start, Mandy, maybe you can talk a little bit about your role at NCSL and the scope of things you track in the election world.
AZ: I’m the elections project manager for NCSL’s elections and redistricting program which means that I work on the whole election side of things which is election administration which is big. It’s everything for how voters get registered to vote to how they cast a ballot and how those ballets get counted and those results get reported. So we track policies across the country, all the states, all the territories on those topics.
Ed: So, what we are here to talk about today is the state of election law. I think that even the most casual observer would know that there’s been an awful lot of activity, at least, a lot of talk about election laws over the last several years really, but certainly in the last couple of years. Two big topics were absentee voting and voting by mail, particularly in the context of the pandemic, there was certainly a change in a lot of states. I think it has changed back in some states. Can you talk about whether those are still hot topics in legislatures in 2022?
AZ: So, they stayed hot topics. They’ve been particularly contentious since 2020 with the pandemic. Everything around the presidential election, but I have to say things have really calmed down a bit in 2022. There is still a lot of legislation on absentee voting or voting by mail. They are very similar. But we are seeing just a little bit less of it. And part of that is because there’s usually less legislation in even number of years than in odd number of years. But it stayed big. It stayed important. I’ll note that Washington, DC, went all mail. That means that all active registered voters will be mailed a ballot before the election. Massachusetts established no excuse absentee voting so that means that there are now 27 states that offer no excuse absentee voting along with eight states that conduct elections entirely by mail.
Delaware also passed no excuse absentee voting. But if you were following the news, you may have seen that that legislation was overturned by the state supreme court and deemed unconstitutional.
In the aftermath of 2020, there were a lot of people pushing for more permanent expansion of absentee and mail voting and people were pushing to curtail it. And I think it is worth noting that we’ve seen a number of states take steps to expand their options around this and there has been a lot of fine tuning. And no state has repealed no excuse absentee voting or taken away any of those permissions that had previously been granted in terms of access to voting by mail. Some temporary provisions were entered in place and then taken away. But again, no permanent policies were rolled back.
I will also add that there were a number of states that did some fine tuning as well. So, several states made changes to when absentee enrolled processing can begin. Absentee and mail ballots just take more time to get processed because you have to check the signature identification on the outside of the envelope. You’ve got to open it. Take the ballot. Flatten it out. Those are all extra steps that add a lot of time. And so, a handful of states allow that processing, not counting, but that processing to begin before election day. New Jersey, Wyoming and South Carolina were those that did that. And then Rhode Island will let its processing start even further before election day. So those are some of the things that states were doing. They are looking at creating additional security parameters around this as well. So, Indiana and South Carolina both added additional identification requirements for absentee ballots. New Jersey added a permanent absentee mailing list so you can just sign up once and continue to get that ballot sent to you. It’s also known as a permanent sign on list. So, there are lots of policy pieces and choices around absentee and mail voting and we saw states acting in many different areas and I wouldn’t be surprised in this continues to be a big topic in 2023.
Ed: Well, it is remarkable how complicated a policy area it is. I think sometimes watching the news, it is represented as a far simpler proposition. But I think as you’ve just demonstrated, it’s both an area that’s quite complicated and there’s been an awful lot of activity. Another thing around elections that has been in the news is election officials. In many cases, I know there’s been concern for their security. There have been, as I understand it, quite a number of election officials who left their jobs because they found that this was not a something they wanted to continue to work in, in this atmosphere. And I wonder if you could talk a little bit about what kinds of legislations around election officials or legislatures took on in 2021 and how that compared to 2022, because I know there was quite a bit of activity in both of those areas.
AZ: You are absolutely right. In 2021, our attention and anyone who was paying attention to the news, it really kind of focused in on election officials especially local election officials. The changes that were occurring in their jobs. Maybe handling more public record requests, dealing with harassment. All of that. And that was true with legislation right. Not just with the news and the media. There was more legislation focused on election officials than we’ve really seen in the past. And in 2021, much of that legislation focused on penalties for not doing a part of their job and it also focused on defining the election official’s role. So, what they specifically should do. What they couldn’t do. Things like that. Legislators kept their attention on election officials in 2022, but this time the focus was more on protections. A number of states--Colorado, Maine, New Hampshire and Oregon--prohibited the intimidation of election officials in 2022. A couple of states also expanded address confidentiality programs to include election officials and allowed them to keep their home addresses private. Massachusetts allowed police officers at early voting sites for protection. That was at the discretion of the election officials so they could opt into having that available to them.
And then Maine passed legislation requiring election officials to attend de-escalation training. Maine also as part of that legislation required the secretary of state to record reports of threats and to share that information annually to the legislative committee in charge of elections to keep them up to date on what was happening with the election officials in their state.
Ed: De-escalation training. That’s one I had never heard of that before for election officials. I can see the logic in it.
AZ: It was a new one to me, too.
Ed: What were the other election trends you saw in 2022?
AZ: One really big one was voter registration list maintenance. So that’s how states keep their voter lists, or voter rolls are they are sometimes called, clean and as current and up to date as possible. This is hard to do because every day people turn 18. They die and they move out of state. They become ineligible for a variety of reasons including felony convictions. So, states are already, they already have processes in place to keep these lists clean. The last year we saw over two dozen enactments to make the clean up process more regular to find new ways to keep their lists clean. Sometimes that’s using jury lists or communicating with other states, joining in interstate compact, things like that. Another trend was early in-person voting. So, Missouri and South Carolina had previously not allowed voters to vote in person before election day unless they had an eligible excuse or were doing the absentee in person with an excuse. So, both of those states added it. And Connecticut passed a constitutional amendment that will pave the way for the legislature to establish early in-person voting.
And there was another trend around prohibitions I would say. Arizona prohibited automatic voter registration and election day registration. Neither of those policies are in place in Arizona so this was a proactive measure. We also saw Florida and Tennessee prohibit the use of rank choice voting in the state. There were a handful of states that have prohibited voting systems from being connected to the internet so that’s not particularly new, but it was noteworthy that there were quite a few that took that step. And then Missouri prohibited the use of ballot drop boxes. So, in addition to states saying we need to do this. They were also saying here are some things that we do not want to do that are not allowed.
Ed: Thanks Mandy. We will be back with the rest of our discussion right after this short break.
I’m back with Mandy Zoch from NCSL. Let me switch to statewide ballot measures. I think they are always interesting just for the inside about what voters are thinking. There were several high-profile election measures on the ballot in November. What did voters have to say about those?
MZ: So, voters had a lot to say and sometimes they were going in different directions on the same topic depending on the state. So, in terms of voter ID, voter identification requirements, Nebraskans voted to approve the use of voter ID for in-person voting. And in Arizona, voters rejected a measure that would have required additional identification information on mail ballots when they are returned. Of course, I mentioned Connecticut approving early in-person voting. That’s noteworthy because it would make Connecticut the 47th I think state to have early in-person voting so quite a national trend there. Nevada approved top five primaries and rank choice voting. No other state has top five primaries. Alaska uses top four. A couple others use top two. This is not yet in effect. It actually needs to pass again in 2024 and if voters approve it then, it will become law. And Michigan probably got the most attention. They passed a citizen initiated constitutional amendment that established quite a number of changes to the state’s voting policies. So, the measure would authorize drop boxes. Would establish nine days of early in-person voting and do a number of other things all in the realm of election administration.
And then the last one I want to note is it might seem like a small one, but it is actually pretty noteworthy. In Alabama, voters said yes to a measure that will require any election law changes to be implemented at least six months before the next general election. So, most people agree that changes too close to an election can confuse voters. Make just make election officials jobs harder so it was interesting to see this actually instituted in law in Alabama and have voters support it.
Ed: We did a podcast about rank choice voting in Alaska which I think was a citizen effort and then we had the opportunity to see that with both the special and the general election there so. That played out I think a little differently than maybe some people would have expected. Let me ask you about communication and information about elections. We talked about this earlier and I love this coinage about misinformation, disinformation and malformation and that all those things were out there. Got a lot of attention in the last election cycle. Do lawmakers have a role here? Is there something they can do to try to push against the tide of this?
AZ: Absolutely. So, lawmakers are important public figures. They are influencers really to use more of a millennial eugenics term. So, they can use their platforms to help ensure that voters get the best information possible and that they are getting it from trusted sources. That usually means directing voters to their local election officials and their local election officials’ websites when voters have questions about registering, figure out where they should vote, how they get a ballot. Things like that. There are a lot of organizations and groups in that space trying to help, but the local election official that office its really the best resource and lawmakers can help direct people there. And then also when it comes to questions about how elections are run. You know voters have those questions, but sometimes lawmakers have those questions too about their own state or other states. Especially when it’s about their own state I really encourage them to talk to their local election officials. See if they can get a tour of the office if they have time. I know time is always in short supply. But it can be really illuminating to actually see how ballots are handled. How they are accounted and processed and how voters are kind of move through a polling place. So local election officials, they are always you know one of the best resources for voters and for legislators.
Ed: Well Mandy you’ve done a great job bringing us up to date on the 2022 legislation and kind of where things stand now. We are now at the beginning of 2023 and of course as you mentioned the odd numbered years, the activity, the legislative activity tends to be hotter because people are coming into session. Talk a little bit about that. What do you see for this coming year?
AZ: Well so I think my first prediction is that actions on elections might be a little cooler than it has been in the past couple of years. We had record number of introductions in 2021. I don’t think we will see that in 2023 just because the temperature is just a little bit cooler and that’s a good thing. But in terms of topics, I would say I have a couple of predictions here. One is that I think we will see at least one state and that’s Connecticut at early in person voting so that’s a very safe prediction. Poll watchers were a hot topic last year. That concerns people who can watch and observe, but not really interfere with the election process. There wasn’t a lot of legislation on it in 2022. There were a lot of concerns around it. And so, this year might be the year that lawmakers go review those laws. We know that sometimes those laws have not necessarily kept up tot date with actual voter behavior. So as more voters opt for early in person voting or voting absentee or by mail, we know that watchers and observers often want access to those other parts of the process that state laws might not have included when everyone was voting in person on election day. So, it might be time to review those. We know some states are looking at it. I wouldn’t be surprised if post-election audits stayed a hot topic. That refers to the kind of statutorily defined audits that confirm that both tallies match essentially.
We saw a couple of states establish post-election audits last year. They will be trying them out this year and in coming years so that will be probably on some other states minds as well. And then lastly, I think we will see more around security. So, cybersecurity and physical security as it relates to election systems and maintaining ballots and safety for election workers, and everyone involved.
Ed: Well, some of the stories we read about attempted cybersecurity assaults on the election system were worrying enough. I hope that we are not reading stories about successful ones any time real soon, so I know that’s a big concern. Mandy thanks so much for walking us through all of this and we will look forward to talking to you in another year or so and find out how some of this stuff worked out. Take care.
Ed: I’ve been talking with Mandy Zoch from NCSL about legislative trends related to elections. Thanks for listening.
You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcast wherever you get your podcasts. Tim Storey, NCSL’s CEO, hosts Legislatures:The Inside Storey where he focuses on leadership and legislatures. The Our American States podcast dives into some of the most challenging public policy issues facing legislators. And Across the Aisle host Kelly Griffin tells stories of bipartisanship. Also check out our special series Building Democracy on the history of legislatures.