How the 4 early primary states have overhauled their election systems
This is the fourth in a series of articles examining changes to voting laws in every state. Sara Swann contributed research and reporting for this installment.
The ongoing election evolution in the United States, while in large part catalyzed by the Covid-19 pandemic, has been building momentum for years.
Many states were already undergoing major overhauls to their election systems leading up to the 2020 election, even before the pandemic gripped the nation. And in the aftermath of the presidential contest, states have doubled down on voting reforms.
To provide a comprehensive analysis of the voting law changes in every state and Washington, D.C., since 2019, The Fulcrum compiled data from the Voting Rights Lab, the National Conference for State Legislatures, the Brennan Center for Justice, and state statutes and constitutions. This fourth installment focuses on the four early primary and caucus states.
In Iowa, the GOP-majority Legislature and Republican governor enacted major election overhauls that tighten voting access. Conversely, Nevada, where Democrats control the governor's office and both legislative chambers, approved several laws that ease the voting process. The other two early primary states, New Hampshire and South Carolina, saw only minor changes to their election systems in recent years.
The chart below provides an overview of how voting practices have changed or remained the same in these four early primary states over the past two years. A more detailed explanation of each state's changes follows.
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During Iowa's 2020 caucus, much attention was drawn to questioning the extent to which representation and access can be achieved under this structure. Results were delayed for days, and Democratic presidential candidates Pete Buttigieg and Bernie Sanders were shown to be neck and neck. Ultimately, Buttigieg came out ahead by merely one-tenth of a percentage point.
While Iowa's six Electoral College votes went to Barack Obama in 2008 and 2012, the state flipped red for Donald Trump in the past two presidential elections. Most of the recent voting law changes have been made this year with Republicans in control of the governorship and Legislature. Many of the new provisions curtail voter flexibility and access, including an earlier voter registration deadline and the absentee voting period being shortened by nine days.
A behemoth election bill passed in March makes a number of changes to mail voting, including:
- Photo identification is now required for early in-person absentee voting.
- Absentee ballots must be received by the close of polls on Election Day, or the return envelope cannot be postmarked later than the day before the election. Previously, mail ballots were considered timely if they were received by Election Day, or if they were postmarked by the day before an election and received within a week.
- The time voters have to apply for an absentee ballot was cut in half, from the previous 110-day period to a 55-day period.
- Commissioners are required to notify voters one to two weeks before an election if their absentee ballot request cannot be processed and provide them instructions for other ways to vote.
- Election officials are barred from pre-filling any fields on absentee ballot applications other than the date and type of election.
- Election officials are prohibited from sending voters an absentee ballot application, unless they request one.
- Ballot drop boxes are allowed but not required, and only one drop box per county is authorized. There were previously no regulations around drop boxes.
- The state commissioner is required to establish a website for tracking absentee ballots and issue daily reports during the absentee voting period on the number of mail ballot applications, ballots issued and ballots returned.
- County election commissioners cannot establish satellite absentee voting locations at their discretion; they can only petition to establish locations.
The March omnibus bill also requires polling places to close at 8 p.m. for all elections and modifies the rules around third-party ballot return. Designated third parties are now limited to immediate family members, household members and caretakers. Additionally, the new law specifies that third parties who return a voter's ballot to a drop box now must do so within 72 hours of retrieving the ballot or at the close of the polls, whichever is earlier.
Several new rules modifying voter list maintenance were also included in the bill. The state registrar is now required to annually verify the registration status of the state's 2.2 million voters. Election officials must also participate in the National Change of Address Program, which requires them to send notices and mark as inactive any voter who may have moved and did not vote in the most recent general election. Local officials are required to submit an annual report to the state registrar stating the number of registrations deemed inactive or canceled. The state registrar is required to regularly audit voter registration maintenance procedures and refer violations to the county attorney or state attorney general.
New election crimes have also been created, including a felony offense for election officials who failed to perform official duties and an aggravated misdemeanor offense for failing to perform required voter list maintenance. It's now a misdemeanor offense for local election officials to interfere with a person authorized to be at a polling place. The state attorney general or a county attorney is required to investigate allegations of election misconduct reported to them and submit the results of the investigation to the state commissioner, explaining whether they will pursue charges.
The March omnibus bill created a new specification that a ballot affidavit is only "incomplete" if the voter's signature is missing. Voters whose mail ballots are flagged as incomplete can cast a valid vote by either voting a provisional ballot, voting in person on Election Day or providing their signature at the commissioner's office by the close of polls on Election Day.
Then in June, the Iowa Legislature passed another voting bill that included the following changes:
- County commissioners are now directed not to send address confirmation notices to voters who did not vote in the last general election because they were not yet 18 years old.
- The definition of "immediate family" was modified to include relatives to the fourth degree (such as great-great grandparents or some cousins), expanding who can return absentee ballots on behalf of a voter.
- Caregivers cannot return absentee ballots, further modifying who can be designated for third party ballot return from the March bill. (Previously, caregivers were permitted.) Disabled and blind voters must designate delivery agents through a form prescribed by election officials. Delivery agents cannot return more than two ballots and are required to deliver ballots in person to the county elections office, present ID and sign an affidavit.
- Voters can validate provisional ballots at their local elections office until the Monday following Election Day or by the time the results are canvassed, whichever is earlier.
Last year, the Iowa Legislature passed a bill limiting the powers of the secretary of state by mandating that election-related decisions made using emergency powers be approved by state lawmakers. This change has potentially wide-ranging consequences for limiting the secretary of state's discretion to make voting rules.
Also in 2020, GOP Gov. Kim Reynolds signed an executive order restoring the voting rights of felons once they have completed their sentences, including probation or parole, but excluding certain felony convictions for homicide and sexual abuse crimes from automatic restoration.
Other recent voting changes include:
- County auditors are barred from updating an absentee ballot if it contains incorrect or incomplete information. They also cannot use the voter registration system to obtain any necessary information. Instead, officials must contact voters by phone, email or mail to correct discrepancies. Before this change, county auditors could update the ballot "by the best means available," which often meant checking their voting database.
- A quota has been set for the number of polling places that can be open on Election Day, specifying that polling places should be equitably distributed throughout the county.
Bernie Sanders won Nevada's 2020 caucus by a significant margin, reflecting the state's young, diverse voting population. For the first time, Nevada allowed people to cast their votes early in the caucus through a ranked-choice voting system.
Over the past few years, Nevada has seen a number of changes significantly expanding access to voting. The state recently instituted an automatic voter registration system, passed through a 2018 ballot measure. Two years ago, same-day voter registration was enacted and lawmakers granted immediate voting rights restoration for people with felony convictions upon release from incarceration.
This year, Nevada made permanent many of the expansive voting laws passed as state-of-emergency measures during the Covid-19 pandemic. Election officials are now directed to automatically send mail-in ballots to all active registered voters for every election, unless they opt out, transitioning the state to a primarily vote-by-mail system. The Nevada Legislature also set a minimum number of polling places for early voting and Election Day voting, which is determined by county population. And any third party authorized by a voter may return a mail ballot to a drop box, by mail or to the proper election clerk.
In 2019, Nevada made other changes to early voting and mail voting, including:
- The deadline to request an absentee ballot was moved up to two weeks before an election. (Previously, voters could request a ballot as late as one week before an election.)
- An absentee ballot must be delivered in person to local election officials before polls close or mailed to a local election office and postmarked on or before Election Day and received by officials within a week.
- Nevadans can register to vote in person at a polling place during the early voting period.
- County clerks are allowed to extend early voting hours after the initial set of hours have been published.
- In-person early voting hours have been revised: On weekdays polling places must be open for at least eight hours, and on Saturdays they must be open for at least four hours.
In the same year, Nevada also streamlined voting with provisional ballots to make the option easier and more accessible. And the in-person voter registration deadline was changed to the fourth Tuesday preceding an election, the same deadline for registering by mail.
The signature verification process for absentee ballots was modified so that voters will be contacted if two more election officials raise an issue with the ballot signature. Officials must also contact voters who neglect to sign the return envelope of their absentee ballot.
A registered voter can now use certain authorized methods to update their registration information after the deadline has passed. An election official can also require a voter to cast a provisional ballot if the official has reasonable cause to believe it's necessary.
Other voting changes enacted this year include:
- A local clerk cannot cancel a person's voter registration because they have requested to change their party affiliation. (Previously, clerks would cancel a person's registration and allow the person to re-register under the new party affiliation.)
- The deadline for online voter registration has been extended to Election Day.
- The following were added as automatic voter registration agencies: the Department of Health and Human Services, any agency that accepts applications for Medicaid, the state Health Insurance Exchange and any other state or tribal agency designated by the governor. County clerks are required to send notices to people whose information is transmitted by an AVR agency and give them an opportunity to opt out of registration.
- Voters covered by the Uniformed and Overseas Citizens Absentee Voting Act — which now also includes disabled voters — are permitted to register, request an absentee ballot and return their ballot electronically through the close of polls on Election Day.
- The receipt deadline for mailed ballots has been moved forward from seven days after Election Day to four days after Election Day. Ballots without postmarks that are received by noon on the third day after Election Day will be accepted.
- Counties are required to provide a drop box at every polling place in the county, as well as additional locations.
- Voters are allowed to "cure," or fix, signature mismatches on their absentee ballot by answering identifying questions, such as date of birth, or by providing proof of ID.
- The deadline for voters to cure their absentee ballots was moved up one day, from seven days after Election Day to 5 p.m. on the sixth day after an election.
- Electronic signature matching technologies are allowed and require accuracy testing. (Previously, election officials conducted signature comparisons manually.)
- Voters who receive mail ballots and choose to vote in person are required to "spoil" their mail ballot by surrendering it or signing an affidavit.
- Responsibility for maintaining voter registration and preregistration records has been shifted from county officials to the secretary of state.
- A felony offense has been created for an authorized third party failing to return a ballot on behalf of the voter.
- The secretary of state must develop a pilot program to carry out a risk-limiting audit for the 2022 general election results.
- The maximum number of active registered voters that can be assigned to an Election Day precinct has been increased from 3,000 to 5,000.
New Hampshire's first-in-the-nation primary status commands significant political weight in presidential elections, often predicting which candidate is likely to win the major party nomination. New Hampshire enacted several changes to its election system this year.
A law enacted in August requires voters who register using a qualified voter affidavit prior to Election Day or a sworn statement on Election Day — rather than a qualifying ID — have their picture taken by an election official to complete their registration. Another related provision specifies that when a voter does not have a qualifying ID, the clerk may attach this registration photo to their challenged voter affidavit.
The legislature also approved new rules around absentee voting. Incarceration for a misdemeanor offense, or prior to a trial, has now been added to the list of qualifying excuses for voting by absentee ballot. In addition, the secretary of state is required to update the absentee voter list at least twice a week during the four weeks before an election and at least once a week prior to that. Information compiled in the statewide absentee voter list has been expanded to include the ballot return date, as well as the voter's name, voter ID and the mail ballot request date.
A number of voter list maintenance changes were enacted in July, including:
- The secretary of state is required to provide information on possible matches between death records and voter registrations to town clerks for investigation where there is not a full match.
- The division of motor vehicles is required to transmit address changes on vehicle registrations to municipal clerks in both the origin and destination locations.
- Clerks are now instructed not to remove potentially deceased voters from the rolls unless there is a full match, rather than a possible one, with a death notice.
- The secretary of state is required to verify that all registrations of voters sharing a place and date of birth and a substantially similar name are, in fact, unique voters. The secretary must forward any apparently duplicative registrations to municipal clerks, who will then investigate and inform the secretary of the outcome. Should the investigation show that an individual voted more than once in any election, such information must be forwarded to the attorney general for further investigation or prosecution.
- The secretary of state is required to use the National Change of Address program annually and provide relevant records to municipal clerks.
- Supervisors of voter checklists are required to transmit previous-address information received on voter registration forms to the chief elections officer in whichever state the applicant was previously registered. Prior to the change, this was only required for voters formerly registered in Connecticut, Maine, Massachusetts, Rhode Island or Vermont.
A bill also passed this summer specifies that if the For the People Act becomes federal law, New Hampshire will continue to follow its state laws and not the new federal rules.
South Carolina joined the early primary cohort in 2007 and has emerged as an important state for Democratic candidates hoping to garner support from its large Black voting population.
While South Carolina enacted new voting rules during last year's pandemic-era election, such as allowing no-excuse absentee voting, these changes were temporary.
Over the past two years, South Carolina has not enacted new, permanent voting laws, besides a 2019 measure that requires poll managers to be a resident and registered voter of the county, or adjoining county, they are appointed to work in.
During this year's legislative session, lawmakers had considered expansive voting bills, including allowing any voter to cast an absentee ballot, removing the witness signature requirement for mail ballots and adopting same-day voter registration. But ultimately, those measures were not enacted.
Another bill considered this year would have extended the early voting period by two weeks, while also limiting who can vote by mail. Additionally, the bill would have banned ballot drop boxes and maintained the state's 30-day voter registration deadline prior to an election.
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