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The state of voting: Oct. 11, 2022

voting legislation updates
The Fulcrum
By The FulcrumOct 11, 2022
The Fulcrum
The Fulcrum staff.
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This weekly update summarizing legislative activity affecting voting and elections is powered by the Voting Rights Lab. Sign up for VRL’s weekly newsletter here.

The Voting Rights Lab is tracking 2,201 bills so far this session, with 580 bills that tighten voter access or election administration and 1,054 bills that expand the rules. The rest are neutral, mixed or unclear in their impact.

A U.S. Supreme Court decision issued Tuesday may result in the rejection of timely mail ballots cast by registered Pennsylvania voters who simply forgot to date their mail ballot envelopes. And the high court in Delaware ruled that new laws granting no-excuse mail voting and same-day voter registration violate the state’s Constitution.

Meanwhile, a Texas court ordered Bexar County – home to about 2 million people – to open over 100 more polling places than originally planned for the upcoming election. Michigan Gov. Gretchen Witmer signed an election reform package on Friday that includes legislation to allow clerks to start processing mail ballots prior to Election Day. The North Carolina Supreme Court ensured that voters who had their mail ballots witnessed or notarized will not also be subject to signature matching.

Following an appellate court order issued Monday, Wisconsin voters can still cancel their returned mail ballots prior to Election Day. And in Kentucky, the Louisville Metro Council is considering a resolution calling for a mail ballot drop box inside the local jail for inmates who have been charged – but not convicted – of a crime.

Looking ahead: A new lawsuit in Nye County, Nev., challenges hand count procedures, including a process that involves live-streaming the reading of ballots starting two weeks before Election Day.

Here are the details:

Supreme Court decision may result in the rejection of timely mail ballots cast by registered Pennsylvania voters who forgot to date their mail ballot envelopes. On Tuesday, the Supreme Court vacated an appellate court decision, and as a result Pennsylvania counties may be able to reject timely ballots cast by eligible, registered voters if the voter forgot to date their mail ballot envelopes. The 3ird U.S. Circuit Court of Appeals had ruled that counties cannot reject otherwise valid ballots simply because they are missing a date. The circuit court found that the date next to the signature is immaterial since it was not used to determine the timeliness of the ballot and the Voting Rights Act prohibits states from rejecting ballots for immaterial reasons.

Delaware high court invalidates election reforms. The Delaware Supreme Court struck down legislation enacted earlier this year establishing no-excuse mail voting and same-day voter registration. The court held that the state Constitution does not allow the General Assembly to institute these policies. Delaware will be one of 15 states where voters must provide a special reason – or “excuse” – to vote by mail this election, and one of 22 states where voters cannot register to vote and cast a ballot on the same day.

Texas county ordered to open more than 100 additional polling places than originally planned. A Texas court ordered Bexar County to open at least 388 polling places on Election Day, ruling that number to be the minimum required under state law. The county had planned to open as few as 259 voting locations. Bexar County is home to about 2 million people, three quarters of whom live in San Antonio.

Michigan governor signs election reform package, including legislation to allow clerks to start processing mail ballots before Election Day. Whitmer signed several bills to implement changes to the administration of mail voting for this November’s election. Most notably, H.B. 4491 will allow clerks in jurisdictions with at least 10,000 residents to begin processing and verifying mail ballots two days before Election Day. Prior to the enactment of the bill, election officials had to wait until the morning of Election Day to begin processing mail ballots. The bill also ensures that people who have died are removed from the voter registration list and clarifies rules about drop boxes. The bill passed with nearly unanimous support in both chambers of the Legislature and will be in place for the Nov. 8 general election. The governor also signed legislation to enable military voters to return their ballots electronically, beginning in 2024.

North Carolina Supreme Court rejects request for signature matching. The North Carolina Supreme Court rejected a request by the state’s Republican Party to allow counties to conduct signature matching on absentee ballots. The State Board of Elections issued a directive earlier this year stating that the law does not allow for signature matching. North Carolina law already requires that ballot envelopes be signed by two witnesses or a notary.

Nevada County sued to stop hand count procedures that include live-streaming the reading of ballots for two weeks before Election Day. The ACLU of Nevada sued Nye County because the announced hand count process involves live-streaming the reading of ballots starting on Oct. 25, two weeks before Election Day. Premature release of results is a crime. In addition, the suit challenges the county’s decision to limit who can use electronic voting machines to those whom election workers determine have “special needs.” Additionally, the process the county intends to use to match voters’ signatures on ballot certificates also allegedly violates state law. The suit seeks an order to stop these proposed practices.

Wisconsin voters can still cancel their returned mail ballots prior to Election Day. Under current law, Wisconsin voters may cancel or “spoil” their returned mail ballot before Election Day if they realize they made a mistake or change their mind about how they wish to vote. The Wisconsin Institute for Law and Liberty filed a lawsuit seeking to end this practice, and on Oct. 5 a Waukesha County judge granted a injunction that would temporarily ban it. However, on Monday the Wisconsin Court of Appeals granted a temporary stay to that decision, meaning the practice can continue this election.

Louisville Metro Council considers providing a mail ballot drop box in jail. In Kentucky, the Louisville Metro Council is considering a resolution calling for a mail ballot drop box inside Metro Corrections. The jail houses some inmates who are legally eligible to vote, including those who have been charged – but not convicted – of a crime. Kentucky law prohibits people from voting if they are incarcerated following a conviction, but those who have only been charged with a crime may still vote.


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What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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The deficit is politically attractive because it is simple and headline-friendly. It appears manageable on paper. Both parties have invoked it selectively for decades, celebrating short-term improvements while downplaying long-term drift. But the deeper fiscal story lies elsewhere.

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