Voting Laws Roundup: October 2022

Click here for the most recent Voting Laws Roundup.

As voters cast ballots in the 2022 midterms, they face significant changes in the voting rights landscape since 2020. 2021 was a record-breaking year for legislative activity around voting rights, and many of the same trends have continued into 2022.

Between January 1, 2022, and September 12, 2022, state lawmakers have enacted the following voting laws:

• At least seven states enacted 10 laws that make voting more difficult — of these, 5 laws in five states are in place for the midterms. footnote1_ez30w29 1 AZ H.B. 2243, AZ H.B. 2492, MS H.B. 1510*, MO H.B. 1878*, NH S.B. 418*, NJ A.B. 3819, NJ A.B. 3820, OK H.B. 3364*, OK H.B. 3365, SC S.B. 108*. (* Indicates the law is in effect for the midterms.)  In addition, the Arizona legislature passed a restrictive constitutional amendment proposal that is on the ballot for the midterms. footnote2_korzmey 2 AZ S.C.R. 1012.  Legislation is categorized as restrictive if it would make it harder for eligible Americans to register, stay on the voter rolls, and/or vote as compared to existing state law.
• At least seven states have enacted 12 election interference laws, of which 11 are in place for the midterms. footnote3_r3tzr4o 3 AL H.B. 194*, AZ H.B. 2237*, AZ H.B. 2492*, FL S.B. 524*, GA H.B. 1015, GA H.B. 1368*, GA H.B. 1432*, GA S.B. 441*, KY H.B. 301*, MO H.B. 1878*, OK H.B. 3046*, OK S.B. 523*. (* Indicates the law is in effect for the midterms.)  Legislation is categorized as election interference if it does one of two things: opens the door to partisan interference in elections or threatens the people and processes that make elections work.
• At least 12 states have enacted 19 laws that expand access to the vote. footnote4_335j5ne 4 AZ H.B. 2119*, AZ S.B. 1170*, AZ S.B. 1638*, CT H.B. 5262*, DE H.B. 25*, LA H.B. 423*, LA H.B. 646*, LA H.B. 1074*, MA S. 2924*, NH H.B. 1594*, NJ A.B. 3929*, NY S.B. 253*, NY S.B. 1046*, NY S.B. 7565*, OK H.B. 1711*, OR H.B. 4133, RI H.B. 7100*, RI S.B. 2007*, SC S.B. 108*. (* Indicates the law is in effect for the midterms.) The California legislature also passed CA A.B. 2815, which would require the establishment of additional drop box locations. The bill was signed into law on September 26, after the cutoff date of this report, and is not reflected in the number of expansive bills. CA A.B. 2815 is not in effect for the midterms. Delaware also enacted DE S.B. 320, an expansive law that established no-excuse mail voting, but that law was struck down after the cutoff date of this report. Higgin v. Albence, No. 2022–0641-NAC (Del.Ch., filed July 20, 2022).  Legislation is categorized as expansive if it would make it easier for eligible Americans to register, stay on the rolls, and/or vote as compared to existing state law.

Since the beginning of 2021, lawmakers have passed at least 42 restrictive voting laws in 21 states. footnote5_oukgai1 5 AL H.B. 285, AL H.B. 538, AR H.B. 1112, AR H.B. 1244, AR H.B. 1715, AR S.B. 643, AZ H.B. 2243, AZ H.B. 2492, AZ S.B. 1003, AZ S.B. 1485, AZ S.B. 1819, FL S.B. 90, GA S.B. 202, IA S.F. 413, IA S.F. 568, ID H.B. 290, IN S.B. 398, KS H.B. 2183, KS H.B. 2332, KY H.B. 574, MO H.B. 1878, MS H.B. 1510, MT H.B. 176, MT H.B. 530, MT S.B. 169, MT S.B. 196, MT S.B. 319, NH H.B. 523, NH S.B. 31, NH S.B. 418, NJ A.B. 3819, NJ A.B. 3820, NY S.B. 264, OK H.B. 2663, OK H.B. 3364, OK H.B. 3365, SC S.B. 108, TX H.B. 3920, TX S.B. 1, TX S.B. 1111, UT H.B. 12, WY H.B. 75.  Among those laws, 33 contain at least one restrictive provision that is in effect for the midterms in 20 states. footnote6_gez3kzk 6 AZ H.B. 1819, AZ H.B. 2243, MT H.B. 530, and MT S.B. 319 have been struck or enjoined and the laws’ restrictive voting provisions will not be in effect for the midterms. AZ S.B. 1485, NJ A.B. 3819, and NJ A.B. 3820 are in effect, but no voter will be impacted by these laws this November. AZ H.B. 2492 and OK H.B. 3365 will go into effect after the midterms.

The 10 restrictive state laws enacted in 2022 amount to the second-highest number of such laws enacted in any single year in the last decade behind 2021. This is particularly noteworthy since this is an election year, which typically has less legislative activity overall than nonelection years. footnote7_mfhx1h3 7 Not all state legislatures meet in even-numbered years. Most legislatures that met this year were in the second year of their two-year sessions. All but a handful of state legislatures meeting in 2022 have now ended their legislative sessions. Legislative sessions are ongoing in Michigan, New Jersey, Ohio, and Pennsylvania.

State legislatures have enacted election interference laws at about the same rate as restrictive voting laws this year: 12 election interference laws in seven states compared to the 10 restrictive laws in seven states. While lawmakers have enacted restrictive voting legislation in the past, election interference laws emerged in significant numbers just last year. Both types of legislation appear to derive from the same set of debunked conspiracy theories about election fraud, 2020 being a “stolen” election, and other myths about voting that gained renewed national attention during the Trump presidency.

There is considerable overlap among the states that have enacted restrictive, interference, and expansive laws this year. Three (Arizona, Missouri, Oklahoma) of the seven states that enacted election interference laws have also enacted restrictive laws, signaling an ongoing legislative push to both increase the risk of partisan meddling and make it harder to vote. Five (Arizona, New Hampshire, New Jersey, Oklahoma, and South Carolina) of the seven states that enacted restrictive laws also enacted expansive laws, though they don’t cancel each other out. The restrictive provisions passed in these states impose significant burdens, while most of the expansive provisions are relatively narrow. footnote8_kkwm7g8 8 One exception is SC S.B. 108, which enacted no-excuse early in-person voting for the first time, a significant expansion of voting access. The same law also enacted several restrictive provisions.

Restrictive Legislation

Between January 1 and September 12, at least seven states enacted 10 restrictive laws. footnote9_n31wwi3 9 AZ H.B. 2243, AZ H.B. 2492, MS H.B. 1510, MO H.B. 1878, NH S.B. 418, NJ A.B. 3819, NJ A.B. 3820, OK H.B. 3364, OK H.B. 3365, SC S.B. 108.  Eight of the new laws were enacted since our last Voting Laws Roundup, published in May. In addition, legislators placed a restrictive constitutional amendment proposal on the ballot in Arizona. footnote10_nbyecu7 10 AZ S.C.R. 1012.  Five of these new laws are in effect for the 2022 midterm elections in five states. footnote11_ce2a326 11 MS H.B. 1510, MO H.B. 1878, NH S.B. 418, OK H.B. 3364, SC S.B. 108. While SC S.B. 108 is in effect, any systemic purge that takes place within 90 days of the November midterms would violate federal law. AZ H.B. 2243 has been preliminarily enjoined and will not be in effect for the November midterms. Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition v. Hobbs, No. 2:22-cv-01381 (D. Ariz., filed Aug. 22, 2022). AZ H.B. 2492 and OK H.B. 3365 will take effect after November 2022.  Overall, lawmakers in 39 states have proposed at least 405 restrictive bills for the 2022 legislative session. footnote12_w12kdhy 12 Legislation with restrictive provisions was introduced in or carried over into the 2022 legislative sessions in Alabama, Alaska, Arizona, California, Colorado, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

These new laws restrict access to the ballot box in a number of ways: they make it harder to vote by mail, establish or expand documentary proof of citizenship requirements for voter registration, impose new photo ID requirements, limit Election Day registration, make it more difficult for individuals without traditional addresses to register to vote, and increase the likelihood of faulty voter purges.

State lawmakers continue their focus on mail voting, as they did in 2021, with half of the 10 new restrictive laws creating new barriers to voting by mail. footnote13_s36cq8d 13 MO H.B. 1878, NJ A.B. 3819, NJ A.B. 3820, OK H.B. 3364, SC S.B. 108.  Like last year’s laws, they include new requirements that voters provide identification numbers when they apply to vote by mail, prohibitions against drop boxes, and limitations on permanent absentee voting. This backlash against mail voting followed the 2020 elections, when a much larger proportion of the electorate relied on mail voting than in the past due to the Covid-19 pandemic. The expansion of mail voting in 2020 helped ensure that elections could continue during the height of the pandemic and would be beneficial to many voters — including voters with disabilities, elderly voters, and student voters away from home — regardless of the pandemic. Despite the lack of evidence that 2020’s expansion of mail voting led to any significant fraud, many of the conspiracy theories claiming that the 2020 election was rigged continue to revolve around mail voting. Our research has shown the many links between these conspiracy theories and trends in restrictive legislation.

Another set of laws targets the maintenance of voter rolls, in apparent response to conspiracy theories that people are able to cast ballots on behalf of those who have moved or died and that people who aren’t citizens can register and vote. Three laws in Arizona, Oklahoma, and South Carolina increase the risk of faulty voter purges. footnote14_l60tj3s 14 AZ H.B. 2243, OK H.B. 3365, SC S.B. 108.  The Arizona and Oklahoma laws are not in effect for the midterms. The South Carolina law is effective, but any systemic purge that takes place within 90 days of the November midterms would violate federal law. AZ H.B. 2243 and SC S.B. 108 both allow voters to be purged based on information from public safety or national databases that suggest they are not citizens. Purges based on similar databases have been found unreliable. The South Carolina law does not give notice to the affected voters or provide them with an opportunity to correct an error, which greatly increases the risk that eligible voters will be mistakenly removed from the rolls. footnote15_b3ju0al 15 Myrna Pérez, Brennan Center for Justice, Voter Purges (September 2008), https://www.brennancenter.org/sites/default/files/legacy/publications/Voter.Purges.f.pdf. It is important to note that the South Carolina law is a mixed omnibus law that affects many different provisions of South Carolina’s election code. The law also contains expansive provisions that are discussed below.

As discussed in the May roundup, Arizona and Mississippi enacted laws imposing or expanding restrictive documentary proof of citizenship requirements for voter registration. footnote16_nz4ccj4 16 AZ H.B. 2492, MS H.B. 1510.  These laws also seem to respond to the conspiracy theory that people who aren’t citizens are voting. The Arizona law, although not effective for the midterms, applies retroactively and risks the voter registration status of some 200,000 voters. It is currently the subject of numerous legal challenges over what the head of the Justice Department’s Civil Rights Division described as “a textbook violation of the National Voter Registration Act.” footnote17_ox2hib4 17 Complaint, Living United for Change in Arizona v. Hobbs, No. 2:22-cv-00519 (D. Ariz., filed Mar. 31, 2022); Complaint, Mi Familia Vota v. Hobbs, No. 2:22-cv-00509 (D. Ariz., filed Mar. 31, 2022). Complaint, Poder Latinx v. Hobbs, No. 2:22-cv-01003 (D. Ariz., filed June 9, 2022); Complaint, United States v. Arizona, No. 2:22-cv-01124 (D. Ariz., filed July 5, 2022).

In addition, Oklahoma enacted a relatively unique law that will make it more difficult for voters without traditional addresses — such as voters living on tribal lands and homeless voters — to register to vote and cast a ballot. OK H.B. 3365 requires any newly registered voter to complete an address confirmation form before being allowed to vote if the voter ID card mailed to the voter is returned undeliverable or if the voter has an “invalid address.” The law defines a “valid address” as one with “a street name, street number, city, state, and ZIP code,” rendering other types of nontraditional addresses invalid. footnote18_4cr20t6 18 OK H.B. 3365.  Many voters living on tribal land do not have traditional street addresses. In addition, the law could restrict access for homeless voters, despite courts affirming that a homeless person can’t be denied the right to vote if they are otherwise eligible, merely because they lack a traditional street address. footnote19_3thhctx 19 Pitts v. Black, 608 F.Supp. 696 (S.D.N.Y. 1984); Collier v. Menzel, 176 Cal. App. 3d 24 (Ct. App. 1985) (both finding a violation of the 14th Amendment’s Equal Protection Clause for refusing to allow homeless individuals to register to vote because they lacked a traditional residential address). According to the National Coalition for the Homeless, “when registering to vote, homeless voters only need to designate their place of residence, which can be a street corner, a park, a shelter, or any other location where an individual stays at night.” (https://www.nationalhomeless.org/projects/vote/Manual_2012.pdf) Already, less than 10 percent of individuals experiencing homelessness in the United States exercise their right to vote. This new law could make registering to vote while experiencing homelessness even more difficult.

Proposed Constitutional Amendments

In addition to the restrictive voting laws enacted so far in 2022, the Arizona legislature approved a restrictive proposed constitutional amendment that is on the ballot for the 2022 midterms. footnote20_z7lti5p 20 AZ S.C.R. 1012. The proposal would impose stricter voter photo ID requirements for in-person and mail voting and would require mail voters to provide an ID number — an Arizona driver’s license number, an Arizona state ID card number, the last four digits of a Social Security number, or a voter ID number — on the ballot return envelope in order for the ballot to be counted.

A restrictive constitutional amendment proposal also passed in the Pennsylvania legislature this year. The proposal would require government-issued ID for voting in person or by mail. footnote21_mcxjb1u 21 PA S.B. 106. In addition, this amendment, if approved, would enshrine that the state constitution does not grant any right “relating to abortion.”  Current law provides more flexibility, allowing voters to use various forms of photo and non-photo identification to vote. The amendment must pass again during the next legislative session and be approved by voters before it can go into effect. The proposal could go before voters as early as 2023.

Election Interference Legislation

Between January 1 and September 12, at least seven states enacted 12 election interference laws. footnote22_zwy2yi9 22 AL H.B. 194, AZ H.B. 2237, AZ H.B. 2492, FL S.B. 524, GA H.B. 1015, GA H.B. 1368, GA H.B. 1432, GA S.B. 441, KY H.B. 301, MO H.B. 1878, OK H.B. 3046, OK S.B. 523.  Three of the laws were enacted since our roundup in May. Eleven of these new laws will be in effect for the November 2022 midterm elections.

Election interference laws create risks of partisan meddling with elections or threaten the people and processes that make elections work. footnote23_3ks3arw 23 GA H.B. 1015 will take effect after the November midterms. A number of election interference laws were passed in 2021 that will be in effect for the November 2022 elections. Will Wilder, Derek Tisler, and Wendy Weiser, The Election Sabotage Scheme and How Congress Can Stop It, Brennan Center (Nov. 8, 2021), https://www.brennancenter.org/our-work/research-reports/election-sabotage-scheme-and-how-congress-can-stop-it. However, the Brennan Center did not begin tracking this legislation comprehensively until 2022.  Overall, at least 151 election interference bills have been introduced in 27 states this year. footnote24_7hasopu 24 Election interference bills have been introduced in Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Hawaii, Illinois, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, Washington, West Virginia, and Wisconsin.

Legislation that risks partisan interference with elections

At least four new laws in two states create a risk of partisan interference with elections and election results. footnote25_1y5kj6k 25 GA H.B. 1015, GA H.B. 1368, GA H.B. 1432, OK S.B. 523.  These laws rearrange who can regulate elections or declare the results, placing more power in the hands of partisan actors or eliminating valuable checks and balances. Three of these laws were passed in Georgia. While these laws vary in their specifics, all three create a risk of partisan interference in elections by shifting authority over elections from experienced election administrators to partisan-controlled county election boards, either by establishing a partisan election board for the first time or changing the way members are appointed on an existing election board. Similar bills passed in 2021 allowed county officials to remove a number of Black Democrats from election boards across the state.

The fourth such law, and the only one passed since our May roundup, is OK S.B. 523, which is in effect for the midterms. It forbids any state entity, including the governor, state election board, or state courts, from altering or amending election laws, effectively removing any checks on the state legislature. Barring the governor and election officials from implementing policies to respond to unexpected situations could cause complications in the administration of future elections. But taken a step further, assuming this law effectively bars state courts from even hearing challenges to burdensome or discriminatory election laws because they are now unable to “amend or alter” them is a dangerous move. It violates separation of power principles, fits with a national trend of undermining the power of the court to serve as a check on other branches of government, and leaves many state constitutional protections practically unenforceable. It essentially makes an extreme version of the “independent state legislature theory” the law of the land in Oklahoma.

Legislation that imposes or increases likelihood of election-related civil or criminal penalties

At least eight of the election interference laws passed this year, however, threaten elections in a different way. At least six laws in five states create new criminal or civil penalties for election officials. footnote26_8ltfnkb 26 AL H.B. 194, AZ H.B. 2237, AZ H.B. 2492, KY H.B. 301, MO H.B. 1878, OK H.B. 3046. The Alabama law has an exception for private funding during a state public health emergency. The Pennsylvania law exempts the donation of facilities to be used as polling locations, volunteer services, and goods valued at less than $100.  And as discussed in our May roundup, at least two laws in two states dedicate new resources toward pursuing election crimes against voters or election officials. footnote27_8sg71xw 27 FL S.B. 524, GA S.B. 441.  These laws serve to intimidate election officials, election workers, and voters themselves. They contribute to an atmosphere of fear surrounding elections and create a risk that the people who run elections may be more concerned with avoiding criminal liability than protecting voters.

For example, in an apparent response to a conspiracy theory about private funding for election administration, laws passed in Alabama, Kentucky, Missouri, and Oklahoma make it a crime or impose a civil penalty if an election official receives or spends private funding for election-related activity. footnote28_ks70yzl 28 AL H.B. 194, KY H.B. 301, MO H.B. 1878, OK H.B. 3046, SC S.B. 108.  In 2020, election officials’ acceptance and use of private funding and private donations of space for polling locations, volunteers’ time, and supplies enabled them to run safe and secure elections. Criminalizing that action prevents election officials from accessing funding beneficial for election administration and puts them at risk for prosecution for otherwise ordinary conduct.

Such laws add to an already fraught climate for election officials, compounding the threats of violence and harassment from private actors motivated by conspiracy theories about elections. Retaining and recruiting election officials is a growing problem.

The new laws creating criminal penalties can also intimidate voters. Voters in Florida are already experiencing the impact of this election-related criminalization. Under the directive of FL S.B. 524, discussed in the May roundup and which created a new state office to initiate investigations into “election irregularities,” several people were recently arrested. The individuals were all people with past felony convictions confused about the byzantine nature of Florida’s voting rights restoration rules, and many were told by official actors that they were eligible to vote. Prosecuting voters for honest mistakes creates fear and intimidation among voters and demonstrates how dangerous these laws can be in the hands of politically motivated state officials.

Expansive Legislation

Between January 1 and September 12, at least 12 states enacted 19 laws that expand access to the vote. footnote29_bnlwwl0 29 AZ H.B. 2119, AZ S.B. 1170, AZ S.B. 1638, CT H.B. 5262, DE H.B. 25, LA H.B. 423, LA H.B. 646, LA H.B. 1074, MA S. 2924, NH H.B. 1594, NJ A.B. 3929, NY S.B. 253, NY S.B. 1046, NY S.B. 7565, OK H.B. 1711, OR H.B. 4133, RI H.B. 7100, RI S.B. 2007, SC S.B. 108. The California legislature also passed CA A.B. 2815, which would require the establishment of additional drop box locations. The bill was signed into law on September 26, after the cutoff date of this report, and is not reflected in the number of expansive bills. CA A.B. 2815 is not in effect for the midterms. Delaware also enacted DE S.B. 320, but that law was struck down after the cutoff date of this report. Higgin v. Albence, No. 2022–0641-NAC (Del.Ch., filed July 20, 2022).  Fourteen of these laws were enacted since our roundup in May. Eighteen of the expansive laws will be in effect for the November 2022 midterm elections. footnote30_7c6lf0d 30 OR H.B. 433 will take effect after the November midterms.

Nine laws in six states make mail voting easier or improve the mail voting process, footnote31_w7aqczu 31 AZ S.B. 1638, CT H.B. 5262, LA H.B. 646, LA H.B. 1074, MA S. 2924, NY S.B. 253, NY S.B. 7565, RI S.B. 2007, RI H.B. 7100.  eight laws in six states make voting easier for voters with disabilities, footnote32_prdsfdz 32 AZ S.B. 1638, LA H.B. 646, MA S. 2924, NH H.B. 1594, NY S.B. 7565, OK H.B. 1711, RI S.B. 2007, RI H.B. 7100.  six laws in six states expand opportunities for individuals to register to vote, footnote33_61fy4re 33 AZ S.B. 1170, DE H.B. 25, LA H.B. 423, MA S. 2924, NH H.B. 1594, OR H.B. 4133.  and three laws in three states create or expand early in-person voting. footnote34_f6eii5x 34 LA H.B. 646, MA S. 2924, SC S.B. 108.  Overall, lawmakers in 44 states and Washington, DC, have proposed at least 628 expansive bills for the 2022 legislative session. footnote35_m01rym5 35 Expansive legislation was proposed in Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

Notably, in June, New York enacted the landmark John Lewis Voting Rights Act, a state expansion of the federal Voting Rights Act. footnote36_93r0qog 36 NY S.B. 1046.  It expands access to the vote for racial-, ethnic-, and language-minority voters by creating new legal protections against voter suppression, vote dilution, and voter intimidation. The act additionally requires jurisdictions with a history of discrimination to seek preclearance before enacting certain changes to elections, a process similar to the federal preclearance system that the Supreme Court made ineffective in 2013. footnote37_9pexy7g 37 Shelby County v. Holder, 570 U.S. 529 (2013).

New York was not alone in passing significant expansive laws in June. Massachusetts enacted S. 2924, a comprehensive expansive law that makes several pandemic-era reforms permanent and enacts other new expansive policies. The law pushes back the voter registration deadline by 10 days, codifies the state’s no-excuse mail voting policy implemented as a response to the pandemic, expands the number of days of early voting, creates new protections for voters with disabilities, and requires correctional facilities to assist eligible incarcerated voters in casting mail ballots. South Carolina’s mixed omnibus bill SC S.B. 108 established no-excuse early in-person voting, and Delaware’s DE H.B. 25 enacted Election Day registration.