State legislatures to start 2021 with focus on election procedures
After the president's and his allies’ failed attempts to overturn the 2020 presidential election in courtrooms and statehouses across the battleground states, state legislatures are now setting their sights on the 2021 session to attempt to roll back expanded access to the polls.
The 2020 expansion coincided with record-breaking turnout in the Nov. 3 election. More than 155 million people cast their ballots in the presidential election, either through in-person early voting, voting by mail or voting in-person on Election Day. The election, lauded by experts and officials as extremely secure and well-run, also produced an unprecedented number of votes for President-elect Joe Biden, as well as President Donald Trump.
Some of those votes can be attributed to expanded access to absentee voting that Americans in almost every state were given due to concerns about the coronavirus. In 45 states plus the District of Columbia, provisions, some temporary and some permanent, allowed voting by mail without an excuse and other changes were also made to make voting easier.
And while Republicans had plenty to celebrate other than the presidential race in November, in battleground states like Pennsylvania, Georgia, Michigan, Arizona and Texas, Republican state lawmakers are taking the baseless claims of fraud and lack of election integrity often promoted by the president and repeated by their constituents, into the 2021 session as arguments for changing election law.
“Republican lawmakers in a variety of states are using the president's lies as justification for making voting harder and suppressing the vote,” Sylvia Albert, the director of voting and elections at the nonpartisan voting rights group Common Cause, told ABC News.
“Obviously we saw record turnout everywhere and part of that was because access to the ballot was expanded. And obviously nothing is perfect. We would want improvements and improvements should be made, with consultation with election officials and election security experts and advocates in the community, but that's not what we're seeing. What we're seeing is legislatures adopting the president's lies about there being problems with the election,” Albert added, referring to unsubstantiated claims about voting machines changing votes, fraudulent signature matching processes and other baseless claims promoted by the president.
Overall, Trump and his allies filed nearly 60 lawsuits as part of the efforts to overturn the results of the election, most of which were short lived in courts across the country and were tossed out, often with sharply worded rulings. A number of lingering cases still remain, such as one against Vice President Mike Pence, asking him to grant alternate electors when certifying election results in Congress on Wednesdsay. Secretaries of state across the country told ABC News last month that there was no evidence of widespread election fraud, while post-election audits of voting machines returned miniscule differences in the vote count.
But Republicans across the country are still using fraud claims as justification for proposed legislation that would undo some provisions, some implemented during the coronavirus, such as the use of ballot drop boxes and no-excuse absentee voting.
“We have totally lost confidence in our election system this year,” state Senate Republican Whip Steve Gooch of Georgia said during a committee hearing about the election. “I’m here on behalf of those citizens. I have a duty to let you know that this issue isn’t going to go away unless we make some changes.”
The Georgia Senate Republican Caucus said earlier this month that it will "crack down" on ballot drop boxes implemented this year in part due to postal service delays, and no-excuse absentee voting, which has been available in Georgia since 2005, because of "deep and heartfelt concerns" from millions of Georgians who feel "that state law has been violated and our elections process abused," according to a press release from the caucus. The state has been one of the most frequent targets of the president's baseless attacks on election integrity, despite no findings of widespread fraud.
The Senate Republican caucus proposed legislation that will "aim to reverse the detrimental effects of the consent decree which was entered into in March 2020," which allowed absentee drop boxes, and "will reform our election laws to secure our electoral process by eliminating at-will absentee voting. We will require photo identification for absentee voting for cause, and we will crack down on ballot harvesting by outlawing drop boxes," the caucus wrote.
Republican Secretary of State Brad Raffensperger, a target of Trump's attacks, has defended Georgia’s election integrity, praising turnout and the “smooth and uniform” process.
But for the first time last week, Raffensperger backed calls from the state GOP to end no-excuse absentee voting, which Georgia has used since the Republican-controlled legislature introduced it over 15 years ago, although it wasn’t widely used until 2020, saying it "opens the door to potential illegal voting."
"This cycle has shown, we need to move to an excuse-based system for absentee voting. The no excuses system voted into law in 2005 -- long before most of you, if not all of you, long before I was in the General Assembly -- it makes no sense when we have three weeks of in-person, early voting available. It opens the door to potential illegal voting," Raffensperger said, despite the fact that no illegal voting or potential fraud has been documented on a widespread basis in Georgia.
He also pushed for a change in state law that would require voters to present photo identification, rather than using the signature matching process for requesting or submitting absentee ballots. The signature matching process has also been a target of Trump's fraud claims.
Despite calling for these changes -- and despite saying there are "real substantive questions" about the election -- Raffensperger still maintained that "the vast majority of claims we have seen online and in the media, and even discussed in the halls of the Capitol are simply unfounded."
Some in Georgia also expressed interest in changing certain provisions, such as removing drop boxes, before the crucial Senate runoffs Tuesday, which will determine which party has control of the nation’s upper legislative chamber. That did not happen.
In Pennsylvania, a state that was critical in pushing Biden over the 270 electoral votes needed to win, state Rep. Jim Gregory indicated he will introduce legislation to undo provisions in Act 77, an election omnibus bill passed in 2019 that allowed voters to request an absentee ballot without citing an excuse.
Although no major absentee voting changes were introduced in Pennsylvania because of the coronavirus, officials this year opted to extend the deadline to return ballots to Nov. 6, giving an extra three days for postmarked ballots to make it through the mail system.
Gregory told ABC News that his district, which overwhelmingly voted for Trump, has encouraged him to continue his support for the president and his unsuccessful legal challenges to election results across the country.
“I'm fine with that,” he said of carrying his defenses of Trump into the 2021 session. “I speak for my constituents, and I speak for the majority, but I represent 63,000 people, all of whom are Republicans, and I haven't heard from really anyone. I can't say that I heard from a single one that said I need to let it go.”
In a statement announcing his intent to introduce a bill that would roll back some parts of Act 77, like no-excuse absentee voting, Gregory cited an "extreme amount of irregularities," as part of the reason he is introducing the bill.
Across multiple lawsuits filed in Pennsylvania, no evidence of extreme irregularities was found in the state. Pennsylvania Secretary of State Kathy Boockvar said the the “integrity” of the state’s voting system was “unparalleled.”
"My office has been flooded with calls and emails from constituents who had issues with mail-in ballots, including those who received them without submitting a request. Additionally, in November, we witnessed an extreme amount of irregularities regarding mail-in ballots,” Gregory said, despite the fact that no widespread evidence has been found to back his claims. “The irregularities that existed from one county to another made this election incredibly confusing for voters and candidates.”
Gregory pointed to the many years of experience other states have had with mail-in voting and said that Act 77 was the first time in 80 years Pennsylvania had altered its election laws.
“Other states have been doing it for decades, and we were just asking for trouble by doing it, the year that we did,” Gregory said of the changes, which allowed for no-excuse absentee voting, permanent vote-by-mail registration and allocated funds to provide a paper trail of all ballots. “But, it's out of the tube. You can't put it back in. So what we need to do is take a look at how we can strengthen our position as a legislature when it comes to how we're going to handle mail-in balloting moving forward.”
Part of his motivation for introducing the bill, he said, is the political future of the Republican party. The year 2022 will bring an open gubernatorial mansion and Senate seat in Pennsylvania, an opportunity for both parties in what will likely be a crucial midterm election. By not falling in line with the president’s claims, some fear a political future for the party could be in peril.
The president has made that message clear as well, partly through his threats to Georgia Gov. Brian Kemp and Arizona Gov. Doug Ducey, who played roles in certifying Joe Biden's win in their states. Trump said of Ducey in November, "Arizona will not forget what Doug Ducey just did," after the Republican governor certified results.
“If you're not playing chess in this game and playing checkers, you're going to get left behind,” Gregory said.
While data suggests that Republicans don’t necessarily lose when there’s greater voter turnout, that doesn’t mean that some in the GOP don’t think that, Common Cause's Albert said.
“... There is this preconceived notion that the more people that turn out, the more likely Democrats are to win,” she said. “We didn't see that happen this year, but there is still kind of that underlying preconceived notion that really informs the political machinery of the Republican Party trying to stop more people from being able to vote.”
In Texas -- a state which kept its red status in 2020 and where Republicans were able to keep hold of a number of battleground congressional districts considered some of the most competitive in the country -- a number of Republican state senators are leading the charge to ban sending absentee ballot applications to voters in the mail. They are proposing the ban despite the fact that Texas did not do so in 2020.
"We must do all we can to ensure election integrity and uniformity among all counties during the voting process,” said state Sen. Bettencourt, one of the co-sponsors of the bill. A press release from his office added that the bill is only one piece of multiple election-related packages he plans to introduce. "This bill SB 208 is about making sure all votes in Texas are counted legally,” he said, pointing to calls from Republicans during the election to only count "all legal ballots."
This year Gov. Greg Abbott extended the early voting period by a week due to the coronavirus, but voters were not able to access some of the expanded vote-by-mail provisions that other states implemented. Texas was one of the many states pre-pandemic where voters needed an excuse to vote absentee, and it did not adapt its law in 2020 to allow coronavirus to count as one of those excuses.
“It's hard to get worse in Texas, in terms of a bad law,” Albert said of Texas' stances on absentee voting and drop boxes. “But they are also looking at passing legislation to bar election officials from sending absentee voter applications unless specifically requested by the voter.”
Secretary of State Ruth Hughs said Texas' election was a "resounding success, and turnout among registered voters was the highest in 28 years as Texans exercised their right to vote."
But Texas Attorney General Ken Paxton, who is the subject of an FBI investigation into allegations he abused his office to benefit a wealthy donor, spearheaded a nationwide lawsuit that aimed to overturn the results of the election in a number of battleground states, and over 120 Congressional Republicans signed an amicus brief supporting the litigation, which was tossed out by the United States Supreme Court.
In Arizona, where the majority of voters used the mail-in ballot process to vote this year, leaders of the state GOP are calling for "common-sense" election reform, although no specific legislation has been introduced or previewed yet. Arizona has a robust vote-by-mail system, which has been in place since the early 90s, with a feature that allows voters to sign up for a "permanent early voting list,” which automatically sends voters an absentee ballot in the mail for every election. The state broke turnout records this year, according to Secretary of State Katie Hobbs, with more than 80% of registered Arizonans casting ballots.
Albert said these methods, although used in Arizona for many years, were somewhat new to many Americans, and that expansion at the ballot box is under threat.
“What they're doing is they're seeing people turned out and tried to use different ways to vote and now they are saying, ‘OK, well we want to make sure you can't use those ways to vote.’”
Missouri’s Republican junior Sen. Josh Hawley, a Trump ally who is from a state that seamlessly certified its election results, introduced a bill that “would improve the ability of campaigns to observe vote counting operations, require mail-in or absentee ballots to be counted and recorded immediately, and require that ballot counting, once begun, continue until completed,” in order to protect election integrity and prevent any voter fraud, according to a press release. Trump handily won the state in 2020 and voters there overwhelmingly reelected Republican Gov. Mike Parson.
Hawley supports efforts to overturn the election results, announcing on Wednesday that he plans to object to the official congressional certification of the Electoral College ballots on Wednesday.
Not all the proposed changes are being justified with baseless fraud conspiracies. In Michigan, one lawmaker has spoken out about a proposed change that could alter the perception of fraud.
Prior to the election, Democrats across the country pushed for changes to laws in many states, which would allow earlier processing of absentee ballots -- something many Republican-led legislatures and governors blocked heading into the spring primaries and November election. The delayed processing of those absentee ballots, which were returned at higher rates by Democratic voters, led to misleading returns during election night, showing Trump with comfortable leads across the battleground states.
Michigan State House Speaker Lee Chatfield, a Republican who is retiring due to term limits, in an interview with Politico said that officials there should have been allowed to start counting ballots earlier, like other states that adjusted such provisions this cycle. Michigan allowed processing to begin on Nov. 2 for a number of hours and did not allow ballots to be counted until Election Day, which led to immediate returns that heavily favored the president, while later batches of ballots pushed Biden into the lead, stoking fears of fraud.
“There’s a lot we can learn in the state of Michigan, because the way we’ve handled this, it’s become a national embarrassment,” Chatfield told Politico, referring to election law in Michigan, including the processing timeline. “And one of the items where we should look at other states and see how they’ve done it well, is regarding the early processing of absentee ballots. We mishandled that this year. We should have allowed for early processing. We didn’t, and it became a spectacle. I think we can learn from that. It should be something the legislature fixes moving forward."
Albert also said she has been hearing from some red states that implemented sunset provisions for expanded absentee voting in the wake of the coronavirus pandemic and are trying to keep those changes in place, but only under one condition.
“It seems to be as long as it's not a state where Republicans think Democrats might be able to use it, then it's OK” she said.
Myrna Pérez, director of the nonpartisan Brennan Center’s Voting Rights and Elections Program, told ABC News that it’s too early to tell which bills will have broad support, but politicians shouldn’t be promoting baseless claims of fraud, even if their voters are pushing for it.
“I think it's a little bit too early to know in those battleground states which ones folks are going to coalesce around,” Pérez said of the proposed legislation. “And so we're obviously watching them all very carefully. We think it's unfortunate that instead of trying to promote the safety of the election, some politicians kind of prolong the counterproductive lies that we were seeing.”
Pérez said although politicians are responding to demands from their constituents, restoring faith in democracy needs to be a top priority.
“I think we're going to have to do a lot of restoring,” she said. “Not only are some people believing some of the lies, so we're going to have to undo some of that, and we're also going to have to do a lot of work to get the folks who are just disenchanted by how how some politicians behave.”
“I think that that's really tough. I think it's going to get a lot better when we have politicians that are trying to look at things accurately and trying to educate their voters, and compete for votes rather than lie to voters. But I also think that we're going to have a lot of outreach and education and reconciliation and restoring and debunking,” she added.
Pérez said it isn’t the job of voters to ensure that politicians keep their jobs.
“We are not supposed to be giving our politicians job security, we're supposed to be making them responsive to us,” she said. “I do think that it is possible that over time, folks will consider the possibility that you can you can just compete for votes, rather than try and cut people out."
“My hope is that folks are nuanced enough so that they decide that there's something more important than whether or not they win and that suppressing votes isn't a path to victory,” she added.
ABC News' Olivia Rubin and Quinn Scanlan contributed reporting.
