by Emily Pecot
For the 2024 presidential election, voters in 28 states will face restrictions that were not in place for the 2020 election, according to the Brennan Center for Justice, a nonpartisan law and policy organization.
In its latest “Voting Laws Roundup” from May 2024, the Brennan Center reported that these restrictions include how mail-in ballots are handled and collected, shortened deadlines for requesting absentee ballots, and additional requirements for voter registration organizations.
For example, a Tennessee law “limits who can assist others with registering to vote and establishes a fine of up to $5,000 for any organization or individual who violates the law,” the Brennan Center reported. In addition, the Brennan Center report stated that 21 states considered legislation that would allow for election interference.
In June 2024, the Movement Advancement Project (MAP), a nonprofit think tank that provides research and analysis, tracking legislation in the LGBTQ+ and democracy movements, released a report titled “Diverging Democracy: The Battle Over Key State Election Laws Since 2020.” The report stated that the state legislatures in nine states—Florida, Georgia, Kansas, Kentucky, Missouri, Montana, Oklahoma, South Carolina, and Tennessee—enacted laws allowing the legislature to interfere in election administration.
Another interference law, referenced in the Brennan Center report, enacted in South Dakota opens election workers up to criminal penalties if they do not give poll watchers more latitude to observe vote counting. The law states that every poll watcher should be stationed in a location from which they can “plainly see and hear what is done within the polling place.”
“The criminalization of poll worker conduct deters people from serving as poll workers and makes those who continue to serve hesitant to enforce the rules necessary to keep order at the polls,” the Brennan Center said. “In turn, it raises the risk that disruptive and intimidating poll watcher behavior will be left unchecked.” (See “When Poll Watching Leads to Voter Intimidation” sidebar for more on the role of poll watchers).
The Brennan Center also noted in its roundup that between January and May of 2024, 11 states enacted 14 laws expanding the right to vote. Those expansive laws include ones that make it easier for those with disabilities to vote, proactively update voter registration information, add requirements for translation of voting materials in additional languages, and expand the provisions for absentee voting.
States that swing
The definition of a swing state is one where the two major political parties—Republican and Democrat—have similar levels of support among voters. These states can often tip the scales of an election. As U.S. citizens move around the country and demographics change, the states considered to be swing states can also change. According to the University of Virginia Center for Politics, the eight states considered swing states for the 2024 presidential election are: Arizona, Georgia, Michigan, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin.
Voting Rights Lab, a nonpartisan voting advocacy organization, released a report in October 2023 titled, “Battleground 2024: How Swing States Changed Voting Rules After the 2020 Election.” The report noted that in the 2020 presidential election, the winner in five of these eight swing states was determined by less than two percentage points.
“Changes to how elections are run can have a profound impact when margins are so razor thin,” the Voting Rights Lab report states.
Battleground 2024 noted that voters in four swing states—Georgia, New Hampshire, North Carolina, and Wisconsin—will face new restrictions when they cast their ballots. For example, in North Carolina, voters who wish to vote via mail-in ballot will need to return their mail ballot with signatures from two witnesses or a notary, as well as include a copy of their photo ID. While New Hampshire instituted voting by mail for the 2020 election due to Covid-19 restrictions, for 2024, voters in that state will only have the option to vote in person on Election Day, joining Mississippi and Alabama as the only states that do so.
On the plus side, voter access in Michigan and Nevada expanded, according to the Voting Rights Lab report. Michigan increased opportunities to vote early, both in-person and via mail-in ballot. The state also enacted a law giving election administrators more time to process mail-in ballots. Every registered voter in Nevada will receive a ballot in the mail for the 2024 election because the state’s lawmakers made the expanded mail voting access rules, put in place during the pandemic, permanent.
Nebraska, Maine and the Electoral College
One potential election law change probably won’t be taking place for the 2024 presidential election and that is the Electoral College, which is outlined in Article II, Section 1 of the U.S. Constitution and is how the United States elects its president.
The Electoral College is a body of electors that gathers every four years to select our nation’s top two heads of government—president and vice president—based on the voter’s will in their state. Each political party at the state level nominates electors, usually long-standing supporters within the party. There is a slate of Republican electors and a slate of electors for the Democrats in every state. Depending on which candidate wins depends on which slate of electors casts the state’s votes.
So, how many electoral votes does each state have? The number is based on each state’s representation in Congress. For example, New Jersey has 12 congressmen and two senators, so it gets 14 electors or electoral votes. The magic number to win the presidency is 270 electoral votes.
Washington D.C. and 48 states use a “winner-takes-all” system, meaning that whatever candidate wins the popular vote in that state is awarded all of the state’s electoral votes. Nebraska and Maine, however, go a different way. They award two electoral votes to the winner of the statewide popular vote and one vote each for the winner of the popular vote in each congressional district. For example, in the 2020 presidential election, former President Donald Trump was awarded four of Nebraska’s five electoral votes—two for winning the popular vote in the state and he also won two of the state’s three districts. Then candidate Joe Biden received one of Nebraska’s electoral votes because he won the state’s 2nd District where the city of Omaha is based.
“Nebraska, as a state, leans Republican, and Maine, as a state, leans Democratic,” notes Ian Drake, a political science professor at Montclair State University. “But there are congressional districts within each state that could turn out with a different winner than the statewide winner.”
In April 2024, Nebraska legislators proposed switching the state’s method to the winner-takes-all system, giving a potential advantage to the Republican candidate. The measure fell short of passing, but not before Maine weighed in and said if the Cornhusker State passed the measure, Maine, the more Democratic-leaning state, would follow suit, thereby leveling the playing field.
After the presidential race changed—with President Biden dropping out and Vice President Kamala Harris becoming the Democratic nominee—the issue cropped up again. In August 2024, reports surfaced that Nebraska Governor Jim Pillen would call a special legislative session for September to revisit the possibility of moving to a winner-takes-all system. It is not clear that the governor has the votes to make the change, and at press time, the fate of Nebraska’s electoral vote system was still unsettled.
National Popular Vote Interstate Compact
Electoral College results don’t always reflect the will of the people. So far, there have been five times in U.S. history when the winner of the presidential election did not also win the national popular vote. Those presidents include John Quincy Adams (1824); Rutherford B. Hayes (1876); Benjamin Harrison (1888); George W. Bush (2000); and Donald J. Trump (2016). In fact, in the 2000 election the popular vote winner—Al Gore—garnered nearly half a million more ballots than the ultimate winner selected by the Electoral College. In 2016, the gap widened when Hilary Clinton won the popular vote by nearly three million votes.
Currently, it is the Electoral College result that takes precedence over the national popular vote. However, a multistate effort to bypass the Electoral College and award the presidency to the winner of the national popular vote is gaining momentum. The National Popular Vote Interstate Compact (NPVIC) is an agreement among participating states that would ensure national popular vote winners in future presidential elections would also claim an Electoral College victory. In other words, the states in the Compact are agreeing to award their electoral votes to the candidate that wins the national popular vote, not necessarily the candidate that won the state’s popular vote.
Using the Garden State, which is a member of the Compact, as an example, Professor Drake explains.
“In recent presidential election cycles New Jersey is reliably Democratic,” Professor Drake says. “But under the Compact, its electoral votes would go to the winner of the national popular vote. If a Republican won the national popular vote, then New Jersey and other members of the Compact would be obligated under the terms of the Compact to allocate their state’s electoral votes to the Republican.”
In April 2024, Maine became the 17th state, along with the District of Columbia, to join the NPVIC, bringing the combined total of electoral votes to 209. The Compact would only go into effect once enough states join to collectively hold 270 or more electoral votes, the number needed to win the presidency.
Professor Drake explains that proponents of the Compact argue that it is a more democratic system, reflecting a national tally of voter sentiment. While opponents of the Compact point out that the current Electoral College system allows for recounts at the state level, which NPVIC does not. Many question NPVIC’s feasibility and potential impact on the traditional electoral system. For his part, Professor Drake opposes the Compact.
“I think it would reduce the unifying and moderating role of the parties even further and result in more extreme policies on the left and right,” Professor Drake says. “If implemented, the Compact would likely be challenged in state and federal courts, and its constitutionality and practical voting effects would be debated.”
Since its adoption in 1787, the Electoral College has survived more than 750 attempts to either reform it or abolish it, according to the Congressional Research Service.
“At this point, there are only two potential ways to make a uniform national electoral voting law: a constitutional amendment or the National Popular Vote Interstate Compact,” says Professor Drake. “The close partisan divisions at the state and national levels almost guarantee no constitutional amendment on this topic would be possible.”
Discussion Questions
- Why do you think there have been so many restrictive voting laws passed since the 2020 presidential election? Explain your answer.
- Select either the winner-takes-all system of awarding electoral votes or the split vote system that Maine and Nebraska use. Explain in detail why you think it is the best or most democratic system to use.
- Would you support the National Popular Vote Interstate Compact? Why or why not?
Glossary Words
legislation — laws made by a legislative body (i.e., Congress or a state legislature).
nonpartisan— not adhering to any established political group or party.
This article originally appeared in the Special 2024 Election Edition of The Legal Eagle.