Legislative Update: The ‘Big Lie’ and COVID-19: Catalyst for Election Reform
It is hard to look at the news, social media or television without seeing coverage about the “big lie” and the state of the election process. There is no doubt that the 2020 election has polarized the country around voting rights and access to fair elections. The polarization of this topic is only exacerbated by partisan politics that can leave people confused and disheartened about the state of law. Election reform takes the stage against the backdrop of a world reeling from the initial impact of the COVID-19 pandemic.
Since the start of 2021, states have enacted 84 new laws concerning voter access, according to the Brennan Center for Justice. Eighteen of these states enacted reforms that have made voting more difficult, while 25 states enacted provisions to expand voter access. To complicate things even more, some of these laws contain provisions that both expand and restrict voter access. With states enacting laws that restrict or expand or both, it is clear the states are scrambling to find the best method to administer elections for all levels of government.
New York, which has been considered a progressive state in the voting rights arena, has seen substantial changes in its election law since the Democratic Party took control of the Senate in November of 2018. Since that time, long- stymied election reforms, such as online voter registration, early voting and, most recently, the New York Automatic Voter Registration Act, have been enacted. While the state continues to work out many of the logistics of these reforms, that has not stopped lawmakers from pushing the (ballot) envelope.
In the 2021 state legislative session, 511 bills were introduced into the elections committees of the Assembly and Senate. Of those bills, 22 passed both houses. At the time of this writing, 16 of them have been enacted into law and six remain to be acted on by the governor. The legislation enacted thus far ranges from temporary measures in response to COVID-19 to statewide changes to the entire elections structure.
A number of laws were enacted in response to the COVID-19 pandemic to provide election boards and individuals with flexibility to ensure safe and fair elections. On a temporary basis, individuals are now able to request an absentee ballot through electronic means to minimize contact. Similarly, the requirement for a “wet signature” on an absentee ballot is temporarily suspended.
Election officials and candidates are also seeing changes in their operations. Board of Elections officials are prohibited from visiting or delivering ballots to nursing homes until January 2022, and poll workers now have the option for online training. Politicians similarly have seen relaxed requirements in campaigning. To minimize in-person petitioning, the number of signatures for various elections documents has been reduced.
These laws are scheduled to “sunset,” or automatically be repealed, on December 21, 2021 or January 1, 2022. However, with the rise of the delta variant, it is possible the Legislature will extend these provisions.
Access and Education
The number of individuals eligible to vote is about to increase significantly in September of 2021. Individuals who are awarded parole will now have their voting rights restored at the time of their release. According to the Department of Correction and Community Supervision website, approximately 15,000 individuals were released to community supervision in 2020. Facilities releasing individuals are also mandated to notify individuals of their rights, to provide them with a voter registration form and to assist individuals in transmitting their application to the Board of Elections should they wish.
Ease of access to voting also continues to see changes within the state. Although the implementation of the enacted Automatic Voter Registration Act of 2020 (a law aimed to expedite voter registration and ensure greater participation) was delayed to 2024, lawmakers passed a number of bills that make more modest changes to the laws. Specifically, requiring the Board of Elections to provide absentee ballots requested by mail to be received no later than 15 days before an election. This change will provide voters with an additional eight days to cast their vote.
For those mailing in their ballots, they will now have an additional day to get to the post office. Ballots postmarked on the day of the election will now be considered timely. The commonsense change conforms the deadline to mail in the ballot with those delivered by hand. For those who prefer the trip to the polls to cast their votes, a law was also enacted requiring the Board of Elections to leave postage signs at any old polling locations advising of the change and new address to vote.
Changes to the New York State Constitution may be on the horizon. The Legislature passed two resolutions that will appear on the November ballot that, if approved by the voters, would make lasting changes to the New York State Constitution and the election process. One resolution proposes to remove the 10-day requirement for voter registration. This amendment would open the door for same-day voter registration. The second resolution removes the narrow list of circumstances that allows an individual to apply for an absentee ballot and would allow “no-excuse” absentee ballots in any election.
Still awaiting action by the governor are proposals that would create a statewide online absentee ballot tracking system, an electronic absentee ballot application and transmittal system, as well as increased access to early voting. The governor has until January 2022 to take action on the remaining bills. NYSBA’s Department of Governmental Relations will be keeping a close eye on items on the governor’s desk.
Politics aside, it is undeniable that voting is the cornerstone of our country’s democracy and that it deserves considerable attention and study. NYSBA President T. Andrew Brown has assembled a blue-ribbon Task Force on Voting Rights and Democracy which will review the state of the election process across the country and make recommendations and provide expert analysis to lawyers, policymakers, legislators and journalists on how to safeguard the very foundation of this country’s democracy.
Cheyenne Burke is an associate in NYSBA’s Department of Governmental Relations advocating for policy changes on behalf of the membership. Prior to joining NYSBA, she served as counsel for the Codes and Corrections committees in the New York State Assembly drafting, analyzing, and negotiating legislation. She is a graduate of Pace University and Albany Law School.
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