Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas. The views expressed in this commentary are his own. View more opinion at CNN.
Many Republican-led state legislatures are crafting new voter restrictions in the wake of the 2020 election, but one particularly red state may buck that trend. Kentucky is considering a bill that would actually expand voter access while also enhancing integrity measures. The measure just passed the House by an overwhelming and bipartisan 93-4 vote, and it will hopefully achieve that same success in the Senate. It’s a lesson in what’s possible in the all-too-partisan world of election law. Other states should take notice.
Joshua A. Douglas
It began with a successfully executed 2020 election, in which Kentucky, which has some of the most restrictive voting rules in the nation, eased voter access in light of the pandemic. Normally, Kentucky has no early voting, no online ballot request tool for absentee voters and no “cure” process if the signature on the ballot does not match the one on file with the state.
For 2020, however, Democratic Gov. Andy Beshear and Republican Secretary of State Michael G. Adams crafted a bipartisan emergency plan to allow for early voting, the adoption of countywide vote centers, an online portal to request an absentee ballot, and the ability for voters to cure problems with their ballots. The process led to higher turnout and nationwide praise. And Republicans still did extremely well, even with expanded voter access.
Now the legislature may make some of those changes permanent. A bill making its way through the legislature would require three working days of early voting—including the Saturday before the election—allow counties to create countywide vote centers, formalize the online ballot request portal into law and require counties to notify a voter whose signature does not match the one on file and give them an opportunity to cure the problem.
The bill would also add some integrity measures: it forbids ballot collection (sometimes called “ballot harvesting“) by a third party who is not a member of the voter’s family, someone in the voter’s household or a caregiver. It would allow the state to purge from the rolls voters who it learns have registered in another state, and requires paper ballots for all new voting machines. And it also would improve on the post-election audit process by establishing risk-limiting audits to ensure that the voting equipment functioned properly to count the votes.
The voter expansions themselves also have inherent security measures. The law would permit counties to collect ballots through drop boxes but require them to be secure and under surveillance. Ballot drop boxes have become a partisan issue in other states, but not in Kentucky, because they give something to both sides: an easier process for voters to deliver their ballots alongside necessary security rules. An online portal to request absentee ballots would allow the state to more easily monitor the absentee ballot system. The online portal also streamlines the process: a voter can comply with the new photo ID law, passed last year, by inputting their identifying information. Unlike a new proposal in Georgia, a voter would not need to include a photocopy of an ID, which itself could cause disenfranchisement and also raises identify theft concerns.
All of this in a Republican-backed measure that benefited from the input of Republicans, Democrats, election officials, county clerks and others.
The proposed bill does not have everything that voting rights advocates might want. It wouldn’t change the voter registration deadline, which is currently 29 days before the election—among the strictest in the country. (A version introduced in the state Senate would reduce the voter registration deadline from the current 29 days to 21 days before the election; there is also a proposed House amendment that would reduce it to 14 days.) It would offer only three days of early voting, though that’s still better than the current zero.
It would not change Kentucky law that requires an excuse to vote via absentee ballot, keeping Kentucky in the minority on requiring an excuse. The new law would allow ballot cures only for signature mismatches, not other problems such as missing the security flap that goes along with the absentee ballot.
The proposed law also includes some items, in the name of integrity, that could prove harmful, such as the ban on ballot collection by outside organizations. It also strangely says that no government official may “suspend or revise any statute pertaining to elections.” That provision attempts to respond to the concerns of some Republicans that governors and secretaries of state changed election rules in 2020, but it this wording also suggests that even courts cannot strike down election laws that are unconstitutional. A court is not likely to agree that the legislature can forbid it from ruling on election cases.
But as an overall package, the proposed bipartisan compromise bill is a great start. Kentucky ranks toward the bottom in a non-partisan, objective measure, the Elections Performance Index, of how well it runs its elections. That’s because its election laws are arcane: a strict registration deadline coupled with no early voting combined with a paper process for requesting absentee ballots is not a recipe for success. If signed into law, this bill could start to bring Kentucky elections out of the dark ages.
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At a time when democracy itself is under attack, Kentucky is showing what is possible when leaders recognize the importance of a well-functioning electoral system and do not approach voting rules solely with partisanship in mind. Kentuckians, who overwhelmingly voted for Republican candidates, strongly supported expanded measures, such as early voting, in 2020. Lawmakers, so far, appear to be answering the call to make those pro-voter policies permanent. The key has been to seek compromise and to couple voter expansions with enhanced security.
This proposed law is far from perfect; no one loves everything in it, and no one hates everything. It’s a product of bipartisan compromise. This is how all states should approach their election laws.
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