The presidential election will shadow state lawmakers when they convene for the 2020 state sessions, not only for its pending import, but in the actual legislation many will be discussing and voting on.
Election security and election reform will be urgent priorities in state capitals early next year, preparing for 2020 census, which begins in April, and the subsequent congressional/state legislative redistricting to follow in 2021, will also influence sessions in the 46 states that will convene for even-year sessions.
Apart from that, it will be business as usual in 2020 when legislatures convene, with most – 36 – convening in January, including 29 between Jan. 7-14.
Annual budgets will be, as always, a priority with Kentucky, Virginia, and Wyoming lawmakers assembling to craft two-year biennium spending plans.
Education and healthcare, states’ two largest budget expenditures, will occupy lawmakers time, as will the environment, firearm, and “red flag” laws, marijuana, tax reform, gambling, criminal justice reform, infrastructure, abortion, minimum wage, school safety, workforce development, pensions, immigration, federal deregulation, occupational licensing, autonomous vehicles/artificial intelligence, online sales tax collection, economic development, and land-use regulation. To name but a few of the more prevalent headliners expected.
Among emerging issues lawmakers in many states will likely deliberate in 2020 is promoting hemp as a new agricultural crop, creating privacy policies to safeguard genetic information, repealing civil statutes of limitation in sexual crimes against minors, establishing donor human milk banks, paid/family leave laws, vaping prohibitions, prescription drug importation plans, and responding to a growing “ransomeware” threat.
These 10 broad issues are among those that will be most commonly addressed by state lawmakers in 2020.
#1 ELECTION SECURITY
#2 ELECTION REFORM/REDISTRICTING
#3 THE 2020 CENSUS
#4 GUN CONTROL
#7 TAXES/TAX REFORM
#10 SPORTS BETTING
We delve into the top three, election security, election reform and redistricting, and the 2020 census here. Read on to see what they’ll mean for states as they fire up their legislative sessions in the new year.
#1 ELECTION SECURITY
By the time the majority of state legislatures convene in early 2020, the clock counting down to the primaries and the ensuing November general election won’t just be ticking, it will be well into the 11th hour.
In wake of confirmed revelations in an April 2019 joint intelligence bulletin issued by the Department of Homeland Security (DHS) and Federal Bureau of Investigation (FBI), and by the Senate Intelligence Committee in July, that the Russian GRU made “extensive” efforts to hack elections systems in every state prior to the 2016 general election, states have responded with increased focus on the security of their electoral systems.
How are you keeping on top of the 156,000+ bills introduced in the states this year?
But critics say much more needs to be done, particularly in the absence of coordinated oversight from the DHS and the Federal Elections Commission (FEC) in mandating standards for election technology contractors to develop the systems and equipment for voter registration databases, voting machines and county election offices’ websites, other than voluntary guidelines from the U.S. Election Assistance Commission (EAC).
In 2017, the federal government classified elections systems as critical infrastructure. In March 2018, Congress appropriated $380 million to states for election infrastructure and security upgrades through the 2002 Help America Vote Act.
Since then, the House has approved a 2020 funding bill that includes $600 million that the EAC would allocate to the states to require backup paper ballots for all federal elections and other election infrastructure improvements. The bill stalled in the Senate and, unless adopted soon, is unlikely to fund improvements in time for next year’s elections.
Even if adopted, the Brennan Center for Justice estimates it would cost at least $2 billion to secure states’ electoral systems to safeguard them from trespass and manipulation.
The Brennan Center and the Stanford Cyber Policy Center maintain that 8,000 election jurisdictions across the country do not have the IT support to ward off cyber intrusion.
But they do say there are notable improvements and estimate that nearly 90 percent of Americans will cast their ballots on paper-based systems in 2020, compared with 80 percent in 2016.
Pennsylvania, Georgia, and South Carolina will replace all paperless voting machines by 2020, while Arkansas, Virginia, and Delaware did so this year.
However, voters in eight states – Texas, Louisiana, Tennessee, Mississippi, Kansas, Indiana, Kentucky, and New Jersey – will continue to use some form of paperless voting in 2020.
According to a 2018 analysis by the National Conference of State Legislatures (NCSL), 38 states now require voluntary federal testing and certification of election systems, although eight states do not require any sort of testing or certification.
In June, all 88 Ohio counties underwent a risk and vulnerability assessment by the DOH. In August, Oregon election officials underwent a mock attack in which election websites were hacked, disinformation spread on social media, and electrical power and communications went down in a tabletop exercise orchestrated with the DHS’s Cybersecurity and Infrastructure Security Agency (CISA).
Connecticut did so in June, New Jersey in September, and Oklahoma, Michigan, and Vermont, among others, are also planning to go through similar exercises.
CISA also hosted the second "Tabletop the Vote" national exercise involving 47 states, other government agencies, and private sector election companies.
By August, 36 states had installed the ALBERT system at the “elections infrastructure level,” according to the DOH. ALBERT is a “virtualized network-intrusion system” that is a result of collaboration between elections technology vendor Election Systems & Software (ESS), which produces the voter registration system first used by Nebraska, the federal Elections Infrastructure Information Sharing and Analysis Center, and the DOH.
Here is a roundup of some state-specific actions:
In late June, Georgia awarded a contract for 30,000 new voting machines to Dominion Voting, replacing its electronic voting system with touchscreens that print paper ballots. The $107 million contract ends Georgia’s relationship with Election Systems & Software (ESS) after its machines malfunctioned and provided unverifiable results during November 2018’s midterm election.
Critics, however, say the touch screen system is vulnerable, despite the reintroduction of paper ballots for the first time since 2002. Others question why the state chose Denver-based Dominion over other vendors, including ES&S, Hart InterCivic, and Smartmatic, that scored higher on its own criteria, simply because it submitted the lowest bid.
Lawsuits, including one filed by the Coalition for Good Governance seeking to change Georgia's voting system to hand-marked paper ballots are working their way through the courts. How, or if, the Legislature responds is uncertain.
Revelations by the FBI that Russian hackers infiltrated county elections systems in Illinois and Florida before the 2016 election surfaced in 2018 and were disputed by state and local elections officials.
The assertion re-emerged in April when the 448-page Mueller investigation report stated on pages 50-51 that “at least one Florida county government” was comprised prior to the 2016 presidential election.
According to the Mueller report, Russian GRU military intelligence agents in November 2016 sent phishing emails with corrupted files to 120 Florida election officials. The email, disguised as a message from Florida-based VR Systems, an election equipment vendor, had a coded attachment that could give Russian agents access to election systems. The ruse worked in at least two counties, the report said.
Since 2016, Florida has bolstered its electronic voting systems with network monitoring sensors in all counties to detect meddling, expanding paper ballot backup systems and other measures.
In July, state officials announced a $2.3 million allocation in election security grants to 55 counties that applied for them, boosting the amount dedicated to election security to $5.1 million this year, after receiving $19.2 million in EAC grant money the year before.
Illinois is deploying ALBERT software and cyber navigator programs across the state to train elections officials and to lead risk assessments and evaluations. The state’s National Guard, which created a cyber unit several years ago, is on “speed dial” for election night if technicians need to be rushed to a faraway county.
State officials estimate they need about $175 million to rebuild and defend their election apparatus but have received slightly more than 7 percent of that amount from federal and state sources.
Governor Tom Wolf in 2018 ordered all 67 counties to replace existing machines before April’s primaries with ones that produce a voter-verifiable paper record, despite the fact the money to complete the estimated $150 million endeavor is not available.
Wolf originally proposed a five-year, $75 million plan to purchase and install new machines. Republican lawmakers later passed a bill earmarking $90 million in state funding for the project, but it also called for eliminating the straight-party voting option Democrats wanted and Wolf vetoed it.
The governor then introduced a plan to issue $90 million in bonds through the Pennsylvania Economic Development Financing Authority (PEDFA). Republicans objected and the initiative remains mired in partisan derision.
Meanwhile, the state only has approximately $14 million, mostly in federal grant money, and only 41 of the state’s 67 counties have begun the process.
Alabama has invested $3 million to “improve its voter registration database and its security features through upgrades, such as two-factor authentication, to ensure that voter data is secure and reliable.” The state has also designated $2.3 million for various cybersecurity improvements and fixes.
The state allocated all its EAC grant to purchase new voting systems, but the amount is about 10 percent of what it would actually cost to obtain and deploy a new, paper-based voting machine ﬂeet across the state.
Los Angeles County
An example of local government innovation, Los Angeles County spent a decade and about $100 million designing its own voting machine from open source components and, beginning with the March 2020 California primary, Los Angeles voters will have 11 days to vote.
Under the new system, Los Angles County voters will make their choices on a touchscreen, confirm them, feed a paper ballot into the machine, and then press a button to record their final choices on the paper ballot. Election officials will then count both the digital vote records and the paper ballots. Voters can also elect to fill out the ballots by hand instead.
#2 ELECTION REFORM/REDISTRICTING
While the 2020 Presidential election garners much of the attention in an increasingly nationalized news cycle, state lawmakers will be jockeying to prepare for the Census and the redistricting of state legislative and Congressional districts to follow.
That means there will be legislative battles in state capitols across the nation to adopt laws that either make voting more accessible – generally supported by Democrats – or impose more restrictive rules to safeguard against voter fraud, a concern commonly expressed by Republicans.
To the victor in state legislatures races go the spoils in drawing up voting congressional and legislative districts in 2021, using the results of the 2020 Census (see #3).
State legislatures draw congressional and state legislative districts in 37 states. In four states, independent commissions redistrict congressional districts, and in two, appointed commissions do it. Seven states only have one congressional district each, rendering congressional redistricting unnecessary.
In six states, redistricting of state legislative districts is done by independent commissions, and in seven, commissions appointed by lawmakers do so.
In the 2020 sessions, in the 37 states where the legislature draws voting district boundaries, lawmakers are likely to be pressured by advocacy groups – and minority party representatives – to turn the process over to independent commissions. Of course, the party in control of the statehouse is unlikely to do so.
Seven prospective 2020 ballot proposals in four states where the legislature draws districts – Arkansas, Oregon, South Dakota, and Virginia – seek to ask voters to create redistricting commissions independent of the legislature.
The party that controls the state legislature in 2021 can influence – or “gerrymander” – districts for years to come, making 2020 state legislature elections, in some ways, as important in the collective, as any individual congressional election.
The 2020 legislative sessions will be lawmakers’ last chance to tweak election laws in a way that best favors their party’s chances in November’s elections – and in the 2021 redistricting.
In 2019, according to FiscalNote, nearly 700 bills expanding access to the polls were introduced in 46 states, while about 100 bills placing tighter restrictions on voting were introduced in 29 states.
The general trend in Democrats endorsing more access and Republicans proposing restrictions is blurred when it comes to expanding absentee and early in-person voting. Both parties have overwhelming supported such measures.
Below is a roundup of some voter-related bills likely in 2020:
* Same day voting: Connecticut, New Mexico, and Nevada are among states that approved same-day registration and voting bills in 2019. There are now 21 states plus the District of Columbia that have enacted same day voting registration laws, with North Carolina allowing same day registration for a portion of early voting periods.
A proposal to allow same-day registration in Delaware failed to get a floor vote in either chamber but is likely to be introduced again this year.
* Automatic registration: Twelve states and the District of Columbia provide automatic voter registration (AVR) when citizens interact with state agencies such as the DMV. New York was set to adopt AVR in June but a last minute drafting error prevented it from passing. State lawmakers are expected to do so in 2020.
* Early in-person voting: Thirty-three states and D.C. allow early in-person voting in one form or another.
Connecticut and South Carolina bills to allow early in-person voting were introduced in 2019, but did not advance. They are likely to be introduced again in 2020. Similar measures are expected to be introduced in Missouri, Pennsylvania, and Rhode Island.
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* Absentee voting: The Delaware House approved a constitutional amendment to eliminate limitations regarding when a person can vote by absentee ballot. The measure failed to win the required supermajority in the Senate. It is likely to be reintroduced this year.
* Open primaries: A proposed constitutional amendment that would make Florida primaries for state-elected offices non-partisan beginning in 2024 is likely to make the 2020 ballot.
Wyoming lawmakers, on the other hand, are expected to see a 2020 bill disallowing unaffiliated voters from casting “crossover ballots” in the state’s primary elections.
* Pre-registration of 16/17-year-olds: A New York bill that would allow 16- and 17-year-olds to pre-register for their first eligible election faltered in 2019, but is likely to be reintroduced in 2020.
California lawmakers are expected to consider referring proposed constitutional amendments to the 2020 ballot that would allow 17-year-olds to vote in state elections, and to allow 17-year-olds to vote in primaries if they turn 18 before the general election.
Ranked-Choice Voting: Maine adopted a “ranked voting” system in 2016 for all state and federal primary elections, and, in 2019, Maine lawmakers passed ranked-choice voting for presidential candidates. In a ranked-choice voting system, constituents simply vote for all candidates, regardless of party, by ranking them one, two, three and so on.
Ranked-choice voting measures were introduced in 2019 in California, Hawaii and Connecticut. Similar bills are likely to be introduced in those states and elsewhere in 2020.
Four states – Alaska, California, Massachusetts, and Missouri – could have “ranked-choice voting” measures on their 2020 ballots.
Voter ID: Eight states – Georgia, Indiana, Kansas, Mississippi, North Carolina, Tennessee, Virginia, and Wisconsin – require a photo ID to vote. A further 10 states – Arkansas, Alabama, Florida, Hawaii, Idaho, Louisiana, Michigan, Rhode Island, South Dakota, and Texas – “request” voters present a photo ID at voting sites.
Among states where lawmakers are expected to introduce voter ID bills in 2020 is Wyoming, where a 2019 bill did not advance.
#3 THE 2020 CENSUS
The federal Fiscal Year 2020 budget earmarked $6.3 billion to conduct the once-every-decade census, beginning on April 1 – about $700,000 less than was allocated for the 2010 Census, incidentally.
As a result, states and local governments will have to boost their efforts in outreach to ensure an accurate count of people within in their jurisdictions, as up to $675 billion in annual federal allocations are tied to census counts.
The census also determines if states with growing populations can add congressional seats, while those with declining populations will have to consolidate districts. The 2020 Census numbers will be used, in some states, to redraw state legislative and congressional districts. Lawmakers in many states will be preparing the ground for redistricting during their 2020 sessions. (See #2 Election Reform/Redistricting)
States will also have to contend with the politicization of the 2020 Census with the Trump administration’s stalled efforts to include a citizenship question in the tally, potentially spooking immigrants from participating.
A 2018 U.S. Census Bureau survey found 68 percent of people say they’re extremely or very likely to respond to their census form, down from 86 percent who said they were likely to respond in 2010.
Therefore, the mission of state agencies and lawmakers – many of whom will be in session when the census kicks off – is getting the word out to hard-to-count (HTC) populations that it is safe to participate.
Traditional HTC populations include people in rural areas because the Census Bureau only mails forms to physical addresses, not post office boxes, and because some isolated areas do not have access to the internet. African Americans, by an average of 2.07 percent, and Hispanics, by an average of 1.54 percent, are among the HTC populations routinely undercounted.
A George Washington University study claims a single uncounted resident can cost a state an average of $19,000 in federal funds over a decade.
As of June 2019, 30 states had set up complete count committees tasked with outreach to county, municipal, and community organizations. In addition, six state legislatures have created their own census commissions and 11 governors have created census outreach organizations through executive actions.
California is investing heavily in its census count, about $187 million over the last few years. Illinois has allocated $29 million and could boost that in early 2020. New York is spending $20 million statewide and New York City has allocated an additional $40 million for local efforts.
Colorado has invested $6 million, Arizona $7.5 million, New Mexico $3.5 million, Georgia, and Massachusetts, $2.5 million each.
Unless lawmakers approve last-ditch funding, Texas, Florida, and Pennsylvania will spend no state money on the census.
Below are some state-specific census outreach programs:
A largely rural state with relatively high poverty rates, where as many as 600,000 residents do not have access to broadband Internet. This has state officials concerned about a Census undercount.
Arkansas receives $6-to 7 billion in annual federal assistance on a per capita basis based on the 2010 Census.
The state estimates each Arkansan not counted will result in a loss of approximately $2,542 annually in federal funds for state programs – or $25,000 per uncounted individual through 2030.
California has invested about $187.2 million over several years – more than $100 million in its fiscal year 2020 budget – on outreach to ensure its count is as accurate as possible. The FY20 expenditure alone is four times as much as it spent before the 2000 Census, and 50 times as much it spent in 2010.
Among initiatives is the Public Policy Institute of California’s Census Map for “Hard-to-Count Communities.” About 75 percent of state residents are considered hard to count, the institute maintains.
According to the state’s legislative services office, Colorado gets about one-third of its budget from federal funding. That money is used on everything from transportation to education, to healthcare and more.
The state has grown by roughly 600,000 people since 2010, meaning Census-driven federal allocations will be significantly higher to match the significantly higher demand for services.
Colorado could also gain at least one congressional seat due to the population growth documented by the census.
The Colorado Health Institute predicts an undercount of about four percent, about 225,000 people, which is twice the population of Boulder, and which could cost the state $245 million in federal funds over the next 10 years.
The state legislature has appropriated $12.5 million and will appoint a seven-member committee to coordinate its census count
The state has allocated $3.8 million for census count outreach.
A 2016 study by George Washington University found that 2010 census numbers delivered $34 billion in federal funding for Illinois. But the state’s population has declined over the last decade, and the legislature fears an undercount could not only slash federal funding, but could see the state could lose up to two congressional seats.
Illinois legislators set aside $29 million to encourage participation in the census in the state’s 2019 budget – and lawmakers could earmark as much as $50 million more in early 2020. Groups like the Faith Coalition for the Common Good, a Springfield-based nonprofit have received census outreach grants to get the message out to immigrant communities that it is safe to be counted.
Kentucky was one of the first states to organize its census outreach with the March 2018 establishment of the Kentucky Complete Count Task Force, an executive order from Governor Matt Bevin, and an allocation from lawmakers of $500,000.
The effort is designed to increase the state’s response rate of 77 percent in the 2010 census and capture an estimated population growth of about 3 percent over the last decade to boost the $9 billion in annual federal spending Kentucky receives.
Nearly 10 percent of Kentuckians live in HTC areas, with the undercount of the state’s Hispanic population estimated to be more than 19 percent and for African-Americans, about 22 percent.
The state estimates it loses $2,021 in annual federal funding per year for each person not counted.
The state’s fiscal year 2020 budget earmarks $2.5 million for its Complete Count Grant Program. The Massachusetts Census Equity Fund (MCEF) 2020 awarded more than $500,000 to 45 organizations to conduct direct outreach and raise public awareness about the 2020 Census.
Massachusetts receives about $16 billion a year in federal funding tied to the census. The state estimates it loses $2,372 a year for each “uncounted head.”
Boston – with its large population of college students, renters, and immigrants – is rated by the U.S. Census Bureau as the ninth “hardest to count” among the largest 100 U.S. cities.
The state will spend $9 million in census outreach – $7 million more than Governor Phil Murphy initially proposed for the state’s Complete Count Commission.
The Census 2020 NJ Coalition, which will conduct the campaign, estimates nearly two million New Jersey residents live in HTC areas.
State lawmakers have not allocated any money to the census count, even though the Oklahoma Department of Commerce reports the state receives about $6.55 billion annually in federal allocations tied to it.
Oklahoma’s population is expected to top 4 million in this next count, fostering efforts by nonprofits to ensure that population increase gets documented.
The U.S. Census Bureau reports only 75 percent of households in Oklahoma responded by mail to the 2010 census, a figure boosted by follow-up in-person visits but many Oklahomans remained uncounted, costing the state an estimated $1,600 annually per “uncounted head.”
State lawmakers did not include any state funds for census outreach in its budget despite studies that estimated an under-count could reduce the approximately $39 billion the state receives annually in federal funds tied to the 2010 census.
Much of the state’s census outreach will be financed by nonprofits, including the William Penn Foundation, which awarded $1 million to help the Keystone Counts coalition for 2020 Census outreach efforts. Smaller grants are also filling in the blanks, such as the Jefferson Regional Foundation’s $25,000 grant.
Cities are also mobilizing. The Pittsburgh City Council has authorized up to $15,000 over one year to hire someone to work on Census 2020 projects and outreach.