The Thicket at State Legislatures

Implications for Other States of the Supreme Court’s Decision on Arizona Voting Rights Case

By Wendy Underhill

Yesterday the U.S. Supreme Court struck down an Arizona requirement, enacted in 2004, that new voters show proof of citizenship at the time of registration. The ruling may impact other states as well: Alabama, Georgia, Kansas and Tennessee also have laws on the books that require proof of citizenship, although the details vary.

This is a perennial source of legislation. This year, at least Massachusetts, Missouri, Nevada, Oklahoma, Oregon (H 2364 and H 3428) South Carolina, Texas and Virginia considered bills. (None has been enacted yet.)

The Supreme Court did not weigh in on whether non-citizens should be on voter rolls; the law is clear on this point-- only citizens can vote. And it didn't address whether the proof of citizenship requirement is an undue burden on citizens as they become voters. Instead, the opinion "drew a distinction between Congress's broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states," according to Rick Hasen, an elections law expert. The ruling spells it all out.

In no way, though, does the ruling change the fact that states have an obvious interest in ensuring that only citizens get on the voter rolls. We already see other state approaches developing.

For instance, some states are beginning to compare their voter rolls to various data lists that may shed light on citizenship. (The U.S. has no comprehensive list of citizens.) Colorado and Florida each did this before the 2012 general election. In both cases, they compared their lists to the Systematic Alien Verification for Entitlements (SAVE), from the Department of Homeland Security. While these attempts may not have netted many noncitizens who were attempting to vote (and sparked controversy in Florida), they can be viewed as pilot efforts that can be improved on in the future.

As for legislation, at least two states have bills in the hopper this year that approach the citizenship question without following the Arizona model. In California, AB 301 would require that state courts transmit to state election authorities information about citizenship gained through the juror selection process. And, in Washington, SB 5380 would have required the state to determine citizenship through the driver's license process and provide that information to the secretary of state for voter registration purposes. The Washington bill did not pass.

Remembering RFK, Who Inspired a Generation to Public Service

By Ed Smith

There are a few moments in life that draw together the strands of your life. We often don't even see the moment for what it is until later, years later in my case.

A moment for me came on the morning of June 5, 1968, 45 years ago today. I was a 14-year-old Irish Catholic kid growing up in Connecticut. The Kennedys loomed large in my nascent political consciousness. John Kennedy had been a hero and now Robert Kennedy was a rising political force rushing toward the White House. It was, after all, long before the bloom faded a bit from that particular Irish rose.

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In 1968 there was no cable TV, no Internet, essentially no way to get your news except the three TV networks, radio and the morning newspaper.

I was a paperboy. That morning I went out to open my bundle of Hartford Courants at 5:30, ready to walk the neighborhood to drop off the previous day's news. As I peeled away the brown paper wrapping I saw the headline that he'd been assassinated. Honestly, I can't remember the exact wording. Kennedy had been shot just after midnight and in those days newspapers actually chased their last edition to get in momentous breaking news.

I was stunned. I cried. Today I would have known the news before my first cup of coffee from the news feed on my phone, from Twitter, in a dozen different ways. In retrospect, I think the shock was greater, the news more profound delivered in heavy black ink on newsprint. It may just be age or maybe nostalgia, but equally shocking news now delivered moments after a tragedy occurs seems bled of the emotional punch.

But what sticks with me all these years later was the hour that followed. I walked my paper route and dropped The Courant on doorstep after doorstep. Since I knew almost no one had yet gotten the news at that time of the morning I realized every person, my neighbors, would pick up the paper from the stoop, unfold it and feel that punch in the gut. It was like walking in a funeral procession.

That was an awful year. RFK's murder came only a few months after Martin Luther King's death. That August in Chicago the Democratic National Convention became the place where the anguish over the Vietnam War and despair over the deaths of King and Kennedy spilled into a bloody confrontation in the public square.

 It was an ugly and messy time, but it stoked a passion that drew a generation into public service. It was a crucible that gave people across the political spectrum the nerve to step on the political stage, something we should never take for granted.

Ed Smith is the director of digital communications at NCSL.

Slicing and Dicing Long Voter Lines

By Wendy Underhill

Election day voter lines in Prince Georges County, Va. Photo credit: DaleCityPatch

We've read a lot about long lines for voting since November's presidential election. (In fact, we've written a lot about them: see The Canvass, NCSL's elections-related newsletter, and State Legislatures, NCSL's flagship publication.)

Recently, we came across an analysis of voter lines that is more about seeing than reading. It is a humongous set of slides that slice and dice polling place data from Prince William County, Va., slides that "show" more than they "tell."

Some voters in Prince William County waited until after 10 pm to vote last November. Not surprisingly, a post mortem was ordered, and the job was handed to a bipartisan team, with poll worker Kim Brace as one of the team. (Brace is better known as the president of Election Data Services, Inc., a political consulting firm specializing in data relating to redistricting and election administration, but here he was acting in his civic role.)

The slides are worth reviewing for two key reasons. First, his data and maps show what factors correlated with long lines in Prince William county:

• More registered voters per precinct
• A greater proportion of new voters
• More voters who needed attention from a chief election judge (to confirm addresses, vote a provisional ballot or to deal with other special circumstances).

Brace makes no claim that we can extrapolate from Prince William's experience to other regions or jurisdictions. Each viewer can decide if these factors are worth considering on our own turf.

Second, the presentation gives us an idea of what data can do to help election administrators plan ahead. Brace's stuff is a Cadillac production that would be hard for most people to match, but others can at least roll out a Chevy version of election data analysis. It begins with gathering data, much of which is probably already on hand. What time do voters arrive? How much experience do the poll workers have? Which precincts have the highest number of newly registered voters? Then those data can be presented in various ways to see what conclusions jump out. Tables and bar charts are standard; to move up to mapping, administrators may need to tap GIS specialists, whether they work for other departments or are volunteers like Brace.

Lawmakers can help in at least two ways. They can permit jurisdictions to use electronic poll books, which are essentially laptops that speed voter check-in and automatically gather data; and they can set reporting requirements or standards for data collection.

From Campaigning to Legislating: Tips from the Trenches

By Wendy Underhill

Legislative careers start with campaigns—but the skills and attitudes that help during election season don't necessarily translate to actually legislating. At least, that was the perspective of participants in "Campaigning to Legislating," a legislative effectiveness session at NCSL's Spring Forum last week.

"Especially the first time, for the first six months you keep thinking you're still on the campaign trail," said Rep. Angel Matos of Puerto Rico.

Speaker Terie Norelli

"When I come into the legislature after a tough campaign, it's hard not to hold a grudge," said Terie Norelli, president of NCSL and speaker of the House in New Hampshire. She noted that campaigns have gotten tougher, more personal and sometimes even ugly in the last decade.

How to cross the divide between campaigning and serving? Building and developing relationships is the only route to success, she says. In her state, where party control shifted in 2006, 2010 and again in 2012, she has operating with a commitment that "we're going to work in a bipartisan manner." Her specific efforts include:

• A weekly meeting with caucus leaders from both parties.
• Occasional gatherings of small groups from her 400-member chamber, such as fifteen people from the 160-member freshman class, or a dinner with all female leaders.
• Providing committee chair training from NCSL, and including ranking members as well.

Speaker Pro Tem Eric Turner

The Indiana House has changed partisan control more often than any other chamber in the country over the last thirty years, and "that means every race counts and campaigns can be expensive and mean," said Representative Eric Turner, speaker pro tem of the House.

And yet once in the statehouse, "you can always find something to agree on," he says. One approach he has used to get beyond partisanship is to offer to work on bills that members of the opposite party are sponsoring—even if 80 percent of issues would have him on the opposite side from the other lawmaker. He has even offered to be the lead sponsor when a bill would have a better success when it comes from his caucus.

Like Norelli, Turner sees relationships as vital: "It's okay to speak from the floor and disagree, and then have dinner together that night."

Unusually High Levels of Straight Ticket Voting in 2012

By Karl Kurtz

Writing in Sabato's Crystal Ball, Kyle Kondik notes that almost all congressional seats in the country were won by the same party that carried the presidential vote in that district:

One needs little more than just fingers and toes to count the number of House members who represent districts won by the other party’s presidential candidate in 2012. ...[J]ust 25 House members--nine Democrats and 16 Republicans--hold such “crossover” districts. Compare that to 2004, when there were 59 such seats, or 2008, when there were 83.

Although the historical data are incomplete, the 25 crossover seats are probably the fewest number after a presidential election in nearly a century. The group includes some of the longest-serving members of the House, who have established deep roots that have allowed them to fend off challengers and build strong identities in their districts. In many of these districts, the challenging party simply must play a waiting game, hoping for a retirement that creates an open seat contest.

I don't have the data to compare these congressional results to state legislative races, but I noticed something similar in looking at party control of legislatures at the legislative chamber level. In the 26 states that President Obama won, Democrats control 38 of the 52 legislative chambers. And in the 23 states that Gov. Romney won (excluding Nebraska and its nonpartisan unicameral legislature) an even more remarkable margin of chambers (44-3) went in favor of Republicans.

In all states not listed above, the majority party in the legislature also carried the state's presidential vote.

Like Kondik, I don't know if this is a record, but I suspect that it is at least close to one. In a forthcoming article in State Legislatures magazine, I go more deeply into the causes (and consequences) of this more polarized political landscape. But in the meantime, the always pithy Larry Sabato has a simple explanation, "The electorate itself does what the straight party levers in voting machines used to do."

States Have Many Ways to Verify Voters

By Karen Shanton and Wendy Underhill

Voter ID laws have been back in the news in recent weeks. Governor Bob McDonnell signed a bill at the end of March that tightened Virginia's ID requirements. Arkansas' GOP General Assembly kicked off April by overriding Democratic Governor Mike Beebe's photo ID veto. And voter ID bills are advancing in Missouri, North Dakota and Oklahoma.

Though voter ID is grabbing headlines, not all states have jumped on board. As of this writing, voters in 20 states can cast a ballot in person on Election Day without showing an ID document. In place of ID documents, these states use "non-documentary" ID requirements, such as affidavits and biographical information, to check voter identity and eligibility. (Click to enlarge the map below.)

NCSL has compiled information about non-documentary ID requirements in a new Voter Verification Without ID Documents webpage. The page provides an overview of statutory requirements for voter verification. This supplements our existing library of voter ID resources, which includes (among others):

• Voter ID: State Requirements: An overview of states' current voter ID requirements, recent and pending ID legislation and updates on ID developments.
• Voter ID: 2013 Legislation: A detailed list of ID bills under consideration in the current legislative session.
• Voter ID: What's Next? A panel discussion on the future of ID laws, from NCSL's 2012 Legislative Summit.
• Costs of Voter ID: A summary of expenses commonly associated with ID laws.
• 2011-2013 Elections Legislation Database: A searchable database of past and pending legislation on a range of elections-related topics, including voter ID.

For more information about documentary or non-documentary voter ID requirements, send us an email.

Anecdotes, Data and Elections

By Wendy Underhill

The most recent issue of The Canvass, NCSL’s election-related newsletter, had a lead article entitled “Measuring Elections: Data, Not Anecdotes.”

Little did I know as I wrote it that the title was close to both a quote and a frequent misquote.  Apparently the correct quote is “the plural of anecdote is data,” and the misquote is “the plural of anecdote is not data.” 

At the very same time we were putting the finishing touches on The Canvass last week, the folks at Electionline Weekly were publishing an article by Steve Weir, recently retired clerk-recorder from Contra Costa County, Calif.  In it, Weir says:

There are two major observations that I have had during my 24 years as County Clerk-Recorder. First, the people who work in elections are extremely dedicated and ethical. Second, we have in our hands access to a wealth of data that we should use to tell our story. However, many of us miss the opportunity to review and to “own” our data.

Weir worked at the local level, but his words apply equally well at the state or national level.  Indeed, similar sentiments underpin the Pew Charitable Trusts’ new  Elections Performance Index. This tool makes data easily accessible to lawmakers and election officials to help them assess which policies are working effectively and where they might want to go in the future.

The Canvass provides lots more details about the Elections Performance Index and other efforts to use data to measure election administration. I’ll just add here, “Try it. You’ll like it.”

Presidential Election Commission: It's Official

By Wendy Underhill and Karen Shanton

On Thursday, President Obama signed an executive order creating the Presidential Commission on Election Administration. This  isn’t a surprise, given that he mentioned it in February’s State of the Union speech.  It’s good, though, to see the details.  One especially good point:

The commission is “to be informed by, and shall strive to avoid duplicating, the efforts of other governmental agencies.”

In this regard, the work of the U.S. Election Assistance Commission, the Federal Voting Assistance Program and state election directors and local administrators should all be considered. 

We hope and expect that the extensive work done by organizations that are not, strictly speaking, governmental agencies will be considered as well.  Three that come to mind are the National Association of Secretaries of State, the Pew Charitable Trusts’ Election Initiatives and the CalTech-MIT Voting Technology Project.

As for NCSL, we have deep resources on most of the election administration issues that the commission will consider. We paraphrase those issues here, and provide links to a sample NCSL resource on each topic. For those areas where we don’t have research posted, you can be sure we’re working on it behind the scenes.

Polling place management

Poll worker recruitment and training

Assisting military and overseas voters

Managing voter rolls and poll books

Voting equipment and technology

Ballot design and Voter education

Voting accessibility for people with special needs

Provisional ballots

Absentee ballots

Election Day emergencies

We look forward to whatever the next steps may be for the commission. We imagine that the very next step will be appointing members (the co-chairs are Republican Ben Ginsberg and Democrat Bob Bauer). Because state lawmakers bear primary responsibility for shaping election laws, we hope they will have a voice on the commission.

States Enacting Online Voter Registration

By Karen Shanton and Wendy Underhill

Online voter registration was one of the top trends in election legislation last year. Twenty states considered online registration bills in 2012; five passed them into law.

This trend has carried over into 2013. Governor Bob McDonnell signed Virginia's online registration bill (HB 2341) on March 18 and a similar bill (HB 225) is on the governor's desk in New Mexico. On March 20, the West Virginia Senate sent an online registration bill (SB 477) to the state House for consideration. Legislation is also pending in another 11 states.

If you're interested in tracking this trend, NCSL can help. We have a range of online registration resources on hand, including:

• Electronic (or Online) Voter Registration page: An overview of states' current online registration practices and pending online registration legislation.
• Video interviews: Interviews about online registration with David Becker (from the Pew Center on the States), Shane Hamlin (Washington's assistant director of elections) and Tammy Patrick (the federal compliance officer from Maricopa County, Ariz.).
• Online Voter Registration: Coming to a State Near You?: A 2011 article that provides an accessible introduction to the history, workings and pros and cons of online voter registration.
• 2011-2013 Elections Legislation Database: A searchable database of past and pending legislation on a range of elections-related topics. Use "Registration-Electronic" to narrow the search.
• Online Voter Registration Security (coming soon): An interview with University of Michigan computer scientist J. Alex Halderman about securing online registration systems.

Outside NCSL, the Pew Center on the States' 2012 report, Inaccurate, Costly and Inefficient: Evidence that America's Voter Registration System Needs an Upgrade, is another valuable resource.

For more information about online registration, give us a call at 303-364-7700 or drop us a line.

FAQs on pre-Election Day Voting

By Karen Shanton and Wendy Underhill

The elections team at NCSL is continuing to think about the questions the Presidential Commission on Election Administration is likely to address and lining up resources that can provide answers.

Today's topic: pre-Election Day voting. Allowing voters to cast ballots early is one way to help reduce lines at the polls on Election Day. (Of course, wait times at early voting sites are a different matter.)

There are three main categories of pre-Election Day, sometimes called "convenience," voting:

• Early in-person voting: Voters cast ballots at a county office or other officially designated site before Election Day.
• Absentee voting: Voters request ballots, which they submit by mail or at a designated drop-off point. Some states allow any registered voter to request an absentee ballot (no-excuse absentee voting) while others only permit absentee voting in certain circumstances.
• All-mail elections: Voters are automatically sent ballots, which they submit by mail or at a designated drop-off point.

All of these are alternatives to traditional voting at a neighborhood polling place on Election Day.

NCSL has a range of resources on pre-Election Day voting, including:

• Absentee and Early Voting webpage: An overview of states' current pre-Election Day voting practices.
• Pre-Election Day Voting: Just the FAQ's, Ma'am: An accessible introduction to the basic facts, pros and cons of pre-Election Day voting.
• 2011-2013 Elections Legislation Database: A searchable database of past and pending legislation on a range of elections-related topics, including forms of pre-Election Day voting.
• State-Based Election Reports, 2011-2013: A compilation of best practices, after-action reports and process reviews of election procedures, including forms of pre-Election Day voting.

Outside NCSL, here are a couple of resources worth looking into:

The Early Voting Information Center (EVIC) at Reed College: Directed by elections expert Paul Gronke, the EVIC explores the political and administrative ramifications of increasing early voting options.

Voting: What Has Changed, What Hasn't and What Needs Improvement: This report, from the CalTech/MIT Voting Technology Project, includes a detailed discussion of early and absentee voting.

As with all elections issues, feel free to call us at 303-364-7700 or send us an email if you have questions about pre-Election Day voting.