Legislative Odds and Ends from New Hampshire with 2024 Implications

There is obviously a long way to go but the first two weeks of the 2023 session in the closely divided state legislature in Concord have already produced some interesting bills. And it is legislation that would have some impact on 2024 in the state that traditionally holds the first-in-the-nation presidential primary. Two in particular -- one from each side of the aisle -- have been introduced in the early going. 

1. Provable, positive steps from New Hampshire Democrats

FHQ has done a lot of talking about actions taken or not taken by New Hampshire Democrats in the time since the DNC Rules and Bylaws Committee (DNCRBC) adopted a 2024 primary calendar proposal that would push the presidential primary in the Granite state back in the order for the upcoming cycle. But earlier in the week, I discussed the opportunities that New Hampshire Democrats may have to extricate themselves from the predicament in which the party finds itself. Taking those actions -- making provable, positive steps toward the goals set by the DNCRBC to retain their early calendar status -- might not keep the party from being penalized, but it might lessen the penalties. 

Legislation was offered last week by one Democrat that falls into that category. Rep. Barry Faulkner (D-10th, Cheshire) introduced HB 586 which would expand absentee voting access in the Granite state. Now, while it does not go as far as the sort of "no excuse" absentee voting that was voted down in the state Senate in 2021 (SB 47), the measure would expand the list of excuses to receive an absentee ballot to include health and safety concerns (beyond disability) and a "lack of convenient and affordable transportation." Clearly, that is a provable, positive step that moves toward the DNCRBC mandate for an early calendar waiver. But it ultimately would likely fall short and does nothing to change the date of the presidential primary, the heavier lift for New Hampshire Democrats.

That is not nothing, but it likely would not be enough in the eyes of those on the DNCRBC who will serve as final arbiters on the New Hampshire primary situation. 

2. A potential own goal by Granite state Republicans

On the Republican side, Rep. Mike Moffett (R-4th, Merrimack) and Rep. Joseph Guthrie (R-15th, Rockingham) introduced HB 101, legislation that would close primaries in New Hampshire to only those who affiliate with a political party. This is an age-old, intra-party question pitting pragmatists against purists that waxes and wanes over time but has surged in recent years during both the Tea Party and MAGA eras. While the phenomenon is not exclusive to the Republican Party, that has been where purists have pushed most often and most forcefully for closed primaries. 

But closing off primary participation would go against the grain in New Hampshire. The tradition of independents voting in primaries for offices up and down the ballot is storied, but has been part and parcel of the presidential primary process in the state for decades. However, this legislation does not just break with tradition in the Granite state, it comes at a particularly inopportune time. With state Democrats embroiled in a fight with their national party over the first-in-the-nation status of the New Hampshire presidential primary, Republicans in the state would be passing up a prime opportunity to potentially more easily woo independent voters in the 2024 presidential primary with the general election and the state's four electoral votes in mind. 

To close the presidential primary to only registered Republicans would be political malpractice in that light. 

--

Look, neither of these bills are likely to go anywhere. If the fate of the bill in the 2021 session is any guide, then Republicans in the state House are likely to balk at any expanded absentee voting measure (even a scaled down one). And although there may be some Republican support for closing primaries in the Granite state, it likely will fall short of unifying the caucus behind a bill that would essentially have the party cut off its nose to spite its face. Still, this is the sort of legislative wrangling that happens not just in Concord but in state legislatures across the country. 

--

Recent posts:

Roadblock to an Earlier Michigan Presidential Primary?

Bill Introduced in Michigan Senate to Move Presidential Primary to February 27

Identical Third Bill Would Reestablish Missouri's Presidential Primary

Follow FHQ on Twitter, Instagram, Facebook, Mastodon and Post or subscribe by Email.

See more on our political/electoral consulting venture at FHQ Strategies.

UPDATED: US Supreme Court Decision Returns April 7 Absentee Deadline to Wisconsin Primary

Update (4/6/20 -- 7:30pm):
The US Supreme Court brought the Wisconsin presidential primary and spring election nearly back to square one on Monday evening, April 6. On the eve of the primary, the Court in a 5-4 decision reversed a US appeals court decision to uphold last week's district court ruling extending both the absentee request window and ballot deadline. The request window extension is now the only action taken not to be reversed. The deadline now, following the Supreme Court decision, will revert to tomorrow, Tuesday, April 7, the original primary day and deadline for absentee ballots to be due.


--
Update (4/6/20 -- 7pm):

Originally updated under the title: "UPDATED: Wisconsin Supreme Court Reverses Evers's Executive Order to Suspend In-Person Voting"

The Wisconsin Supreme Court on Monday, April 6 reversed Governor Evers's executive order from earlier in the day. That order would have suspended in-person voting in the April 7 presidential primary and spring election and delayed it until June 9. But a challenge was nearly immediately brought by Republican leaders in the state legislature to the state Supreme Court. And the court in a vote along ideological lines decided 4-2 to reinstate in-person voting in an election that will affect membership on the court itself.

This reverts the process to one with in-person voting on April 7 in a limited number of locations with a limited number of poll workers (but with help from the national guard) and absentee voting that will end on Monday, April 13.


--
Originally written under the title: "Governor Evers Executive Order Suspends In-Person Voting in Wisconsin Until June 9"


Wisconsin Governor Tony Evers (D) on Monday, April 6, issued executive order 74, suspending in-person voting on the eve of the presidential primary and spring election in the Badger state.

This is another step in the back and forth among not only the executive and legislative branches in the state of Wisconsin but the federal judiciary as well. Just within the last few days, Evers called a special session of the state legislature to shift to an all-mail vote (in which ballots would be due on May 19), the Republican-controlled state legislature respond by gaveling the Saturday session in and almost immediately out (rejecting those changes), a federal district court judge extend the absentee request window and deadline and an appeals court rejected challenges to that.

The order from Evers also calls another special session of the legislature for primary day, April 7 to consider the shift to June 9. Not only is in-person voting moved to June 9, but absentee ballot requests are allowed to continue as they customarily do in Wisconsin until the Thursday before the election date; Thursday, June 4 in this case.

Now, there are a couple of different avenues that this winding tale can take from here in the Badger state. The most immediate option is the one already signaled by Republican leaders in the legislature: challenge the executive order in state court. This brings in the state-level judiciary. If that challenge ultimately reverses the April 6 executive order, then the election will proceed as planned tomorrow with in-person voting under the threat of the coronavirus pandemic.

However, if that challenge is rejected by the state supreme court, then the next twist will likely be either in the federal courts or with the state legislature in an April 7 special session. While Evers's order pushes the primary back to June 9, the state legislature still retains the ability to alter that. But at that point, Republicans in control -- when the special session commences at 2pm on Tuesday -- would no longer have April 7 as an option. And they would additionally have to consider an Evers veto of any date that does not provide Wisconsin voters and poll workers enough cover from the coronavirus threat.

--
For Democrats in the Badger state, this move does potentially introduce a time crunch into the delegate selection process. April county conventions and subsequent April and May district conventions (at which district delegates to the national convention were to have been chosen) have already been cancelled. The state convention on June 12-13 is still in the works, but that comes just a few days after a hypothetical June 9 primary conclusion. District delegates, as a back up, could be chosen at a state convention divided into district caucuses. Fortunately for Wisconsin Democrats, their delegate selection plan called for the Party Administrative Committee to select at-large and PLEO delegates on June 12, rather than the state convention itself. That can still occur, but would, again, fall just a few days after a June 9 primary. Of course, Wisconsin Democrats could shift that committee meeting to a slightly later date if necessary and that would likely be easier than moving an entire state convention -- either to a different date or to a remote format -- would be.

But the bottom line is that as long as the primary date remains uncertain, so too, does the path by which the delegate selection process will be completed.



--
Governor Evers's executive order suspending April 7 in-person voting is archived here.



--
Related Posts:
4/3/20: Federal Judge Pushes Absentee Deadline Back to April 13 for Wisconsin Primary

Maryland Board of Elections Lands on Predominantly Vote-By-Mail Plan for June 2 Primary

With a Friday, April 3 deadline to report back to Governor Hogan's executive order request to plan for a June 2 presidential primary, the Maryland Board of Elections arrived at a series of conclusions after a week of back and forth.

After first signaling that it would recommend an all-mail ballot primary, the Board walked that back after it was pressured by voting rights and disabilities advocates. Voting access for those who need assistance casting a ballot or who do not receive ballots in the mail became the main hang up for those lobbying the Board and ultimately the Board itself.

Maryland will now follow the rough model outlined by the secretary of state in Rhode Island: providing for a "predominantly" vote-by-mail plan for the June 2 primary. The plan in the Old Line state now has a bit more meat on the bones. While the recommendation continues to call for all Maryland voters to receive a primary ballot, the state will now open at least one voting location (and no more than four) in each county. Those sites will only be opened for voting on primary day itself. Voters will additionally have the option of mailing their ballots back to the county or dropping them off in drop boxes at each of the county voting locations set up for in-person voting on June 2.

The recommendation now heads to Governor Hogan for his consideration under the guidelines in the executive order. He will have to sign off on the changes before they take effect.


--
Related Posts:
Maryland Joins States Pushing Back Presidential Primaries on the Calendar

Maryland Board of Elections Will Recommend an All Vote-By-Mail Presidential Primary for June 2

Federal Judge Pushes Absentee Deadline Back to April 13 for Wisconsin Primary

In all the flurry of activity during the last three weeks shaking up the primary calendar, most of the decisions to move delegate selection events have either come from the executive and/or legislative branches. But in Wisconsin the judicial branch has gotten involved in the decision making as well.

Given the lack of action on that front from either the executive or legislative branches in the Badger state, a federal judge first ordered on Thursday, April 2 that the deadline to request absentee ballots be extended a day to Friday, April 3 and the deadline to submit those ballots pushed back to Monday, April 13. Then, in the face of some backlash from elections administrators in Wisconsin, the same judge -- US District Court Judge William Conley -- ordered that no results from in-person voting in the April 7 primary election be released until after the absentee ballots are due at 4pm on April 13.

This effectively moves the Wisconsin primary back six days on the 2020 presidential primary calendar. The contest there becomes like the former April 4 party-run primary states -- Alaska, Hawaii and Wyoming -- by shifting more toward vote-by-mail-focused elections with later deadlines.

None of this fundamentally affects the delegate selection process Democrats in the Badger state has laid out for the 2020 cycle. The coronavirus had already disrupted those plans. Both April 26 county conventions and the late April and early May district conventions have already been cancelled. Alternative plans for those events have not been made public, but would be necessary to building toward the state convention that is still scheduled at this time for June 12-13. In other words, while this court decision has no impact on the delegate selection process for Wisconsin Democrats, the coronavirus has.


--
The Wisconsin primary change has been added to the 2020 FHQ presidential primary calendar.



--
Related Posts:
4/6/20: Governor Evers Executive Order Suspends In-Person Voting Until June 9

DC Board of Elections Urging All District Voters to Request Absentee Ballots for June 2 Primary

As the calendar flipped from March to April, marking two months until the last major multi-state wave of primaries and caucuses, the Washington, DC Board of Elections began encouraging voters in the district to request absentee ballots ahead of the June 2 primary there.

This is a less proactive approach to alternative methods of voting in the wake of the coronavirus pandemic. Some states like Maryland have tentatively opted to mail all voters an absentee ballot, while other states like Nebraska and West Virginia have decided to mail application for absentee ballots to active voters. The DC encouragement is much less far-reaching at this point. That could change over time as June 2 approaches and the coronavirus situation evolves.


--
DC Board of Elections vote-by-mail encouragement archived here.

DeWine Signs Legislation Scheduling Ohio Vote-By-Mail Presidential Primary for April 28

Governor Mike DeWine (R-OH) on Friday, March 27 signed into law HB 197, an omnibus bill with myriad responses to the coronavirus threat. Among the changes in the new law are alterations to the presidential primary in the Buckeye state: a predominantly vote-by-mail system in which voting will conclude on April 28.

For more details on those changes see this earlier post on the Ohio legislation.

While the vote-by-mail transition is noteworthy, this change has an influence on more than the primary itself. Secondary effects will potentially be felt in the delegate selection process.

However, Ohio Democrats are in something of an advantageous position on that front, at least compared to some other states. District delegate slates for each active candidate were selected in pre-primary caucuses back in January (the first selection event on the calendar). Which district delegate candidates on those slates fill slots allocated to candidates depends on the results of the primary. Democrats in Ohio already had a fairly mobile selection process for the selection of district delegates.

And even statewide delegate selection is somewhat insulated from the shift to April 28. The Ohio Democratic Party state executive committee -- not a broader state convention -- is set in the party's delegate selection plan to choose at-large and PLEO delegates in a meeting on May 9, after the new primary date. That likely will not have to change other than perhaps how the executive committee meets. That will more than likely be done remotely rather than in person now.

The only real hang up in the delegate selection plan that Ohio Democrats have laid out is the contingency for filling any district delegate slots allocated to candidates who failed to file a full slate of delegate candidates back in January. Those post-primary caucuses to fill those spots were originally set for April 16. That could still occur at that time -- operating much like the pre-primary caucuses in January did, but the insurance slating would occur before the primary results are in under that scenario. The intention was to allow candidates allocated delegates in the primary to fill those slots if they failed to do so during the January caucuses.

That may necessitate a move in those caucuses.

Then again, with the field narrowed to just two candidates (as of late March), there may now be less need for either Biden or Sanders to slate any additional district delegate candidates.


--
Governor DeWine's new release on the bill signing is archived here.



--
Related Posts:
Ohio Presidential Primary Postponed Until June 2

Ohio Legislature Unanimously Passes Bill to Transition to Absentee Vote-By-Mail in Presidential Primary

Montana Governor Allows Counties the Discretion to Opt into Vote-By-Mail for June 2 Primary

Governor Steve Bullock (D-MT) on Wednesday, March 25 issued a directive aimed at the June 2 primary in the Treasure state as part of his evolving emergency declaration response to the coronavirus outbreak.

Unlike other states that have opted to go full vote-by-mail for upcoming presidential primaries, Bullock instead deferred to Montana county election officials to make the call on whether to do the same in their primary. Counties can opt in, but that comes with some strings attached.

• County elections offices have to make (early in-person voting) ballots available to voters from May 4 through the end of the election on June 2. 
• Counties that opt into the vote-by-mail system must also have mailed ballots to voters 25 days before the June 2 primary (on or before May 8). This is consistent with the regulations regarding absentee voting in the state. Montana voters retain the ability to request absentee ballots, but counties that have opted into the vote-by-mail system will send ballots to all register county voters. [If a voter in such a county votes both (early) in-person and via the mail ballot, then the mailed-in ballot will be void and the early in-person ballot will be counted.]
• Those counties that opt in have to submit a written plan for how they will implement the changes to the Montana secretary of state.

Importantly, voters and the counties that opt in will also get financial relief on postage. Counties choosing to go the vote-by-mail route have to notify voters that no postage is required to submit a ballot. Additionally, counties may also seek reimbursement for postage costs from the state government.

Predominantly vote-by-mail systems have taken over in states with May contests (see Georgia, Nebraska and West Virginia, for example) and that is gradually expanding into the June primary states as well (see Maryland). But all states that have moved in that direction have also approached the process in different ways with some promoting vote-by-mail to others mailing out ballots directly to voters. But Montana has put a different spin on the process. Voters in counties that adopt the vote-by-mail option will be mailed ballots. So while there have been differences across states in this transition, now, in Montana, there will potentially be differences across counties within the state.


--
Governor Bullock's executive order on the vote-by-mail deference to Montana counties is archived here.

Nebraska Will Now Mail Absentee Ballot Applications to Every Voter Ahead of May 12 Primary

Nebraska joined the ranks of states turning toward absentee vote-by-mail as a response to the coronavirus pandemic's impact on the electoral process.

On Thursday, March 26, Nebraska Secretary of State Bob Evnen (R) announced that the state, through the secretary of state's office, or county elections officials would mail out to every voter in the Cornhusker state an application for an absentee ballot for the May 12 primary. This process is akin to those adopted in states like Georgia and West Virginia thus far. In-person early voting (April 13-May 11) and in-person election day voting remain in place, but all Nebraska voters will have the capacity to vote-by-mail if they so choose in order to avoid the further spread of the coronavirus.

Once applications are distributed, voters will then have until May 1 to request an absentee ballot. Although the application will be a hard copy that requires a physical signature, voters have the option of signing them and then either taking a picture of the form or scanning it, before returning it via email or fax. Mail and physical drop offs at the county offices are other options available to voters to submit their applications.

Requested ballots will begin being mailed out to voters on April 6. Voters will then have until election day -- May 12 at 8pm when polls close -- to have mail-in ballots returned to county elections administrators. The postmark of any mail-in ballot is immaterial. The ballot has to physically be into the county offices by the close of the polls on election day.



--
Nebraska Secretary of State Evnen (R) statement archived here.

West Virginia Secretary of State Lays the Groundwork for a Predominantly Vote-By-Mail Primary on May 12

A week after he made the coronavirus threat a valid excuse for requesting an absentee ballot, West Virginia Secretary of State Mac Warner has announced that the state will help county elections officials with funding the mailing of absentee ballot applications to all Mountain state voters.

No, the date has not changed, but the way in which the May 12 primary (for presidential and other offices) is conducted will be. In-person early and in-person election day voting are still available options at this time, but all West Virginia voters will now have an alternative that will allow them to stay at home and still participate in the primary election.

There are now 46 days until the May 12 primary. In that window of time, the West Virginia secretary of state's office or local county elections officials will have to mail out absentee applications to all of the active voters in the state. One complicating factor on that front is that West Virginians still have until April 21 to register to vote in the upcoming primary. That may entail more than just one mass mailing of absentee applications.

After that voters have to fill out the application, return it via voter-paid postage to the county board and await the ballot's arrival. It is unclear whether voters can continue to use the online application that can be returned to the county board via email or fax and avoid paying postage with the mailed form. Regardless of the method, voters have until May 6 to submit their applications for an absentee ballot.

Once received, the ballot may be filled out and must be returned, postmarked by May 12 (primary election day) to be counted. That means that results will likely be slower in coming in and potentially undetermined until after election day.

West Virginia now joins a raft of other later-voting primary states in shifting in the direction of more widespread vote-by-mail systems in response to the coronavirus threat. The new West Virginia systems mimics the new protocols adopted in states like Georgia, where absentee applications are being mailed to all active voters. Ohio, on the other hand, is sending an informational mailing describing how voters can request an absentee ballot. That contrasts with a state like Alaska where the Democratic Party is allowing its party-run primary voters to download a ballot directly in order to participate.

This is an important point: States and state parties are dealing with the electoral impact the coronavirus presents, but are doing so in a wide range of ways. That will create uneven results for voters across states; more obstacles in some than in others.

Ohio Legislature Unanimously Passes Bill to Transition to Absentee Vote-By-Mail in Presidential Primary

The Ohio legislature on Wednesday, March 25 unanimously passed legislation mapping out a finish to the March 17 presidential primary that was postponed.

Both the Ohio state House and Senate made quick work of an omnibus bill -- HB 197 -- dealing with broader coronavirus concerns. And part of that was finalizing how to complete the March 17 presidential primary election. In the bill, the provisions with direct influence on the presidential primary call for...

1. The bill voids of Secretary of State LaRose's (R) March 16 directive postponing the March 17 primary and moving it to June 2. That change is now nullified. 
2. In its place will be an absentee voting system to handled almost completely by mail. [The only exceptions to that are those voters with disabilities, cannot receive mail at their address or have some other need for accommodations/in-person voting.]
3. Voters who cast ballots either early or absentee ahead of the March 17 primary will have their votes counted. That total comes to 523,522 early or absentee votes with another 66,723 requested absentee ballots outstanding. That latter group can still submit their ballots and have them counted. 
4. All voters who registered to vote before February 18, 2020 and who did not vote early or absentee can request an absentee ballot in lieu of any in-person voting. All registered Ohio voters will receive a postcard from the secretary of state informing them of the ways in which they can participate, including absentee vote-by-mail. 
5. Any voter who registered after February 18 is ineligible to participate. In fact, the bill calls on county boards of elections not to process those registrations at this time. 
6. Voters can request an absentee ballot by printing off their own copy or by contacting their county board of elections. Voters will be required to pay postage to return those absentee requests. Should those requests be deemed valid by county elections administrators, then valid application voters will be sent an absentee ballot with pre-paid postage for returning it. 
7. The deadline for returning ballots is April 28, 2020, but if the ballot is postmarked by April 27, then they will be accepted until May 8, 2020. 

The office of the secretary of state estimates that postcard notifications will be delivered sometime during the second week of April meaning that voters prompted by the postcards will have between 16-22 days to print off an absentee request, mail it to the county board of elections (with voter-paid postage), wait for the absentee ballot to arrive by mail, and return the completed ballot (postmarked) by April 27. That is a lot to ask of voters -- a lot of changes to throw at them -- in such a short period of time.

But it will allow Ohio to complete the voting that started before the original March 17 primary in a manner that greatly reduces face-to-face contact between the voters themselves not to mention voters and poll workers, and thus, the risk of further spread of the coronavirus.

The bill is set to take effect immediately upon Governor DeWine's (R) signature.

Regardless, April 28 is now just 33 days away.


--
Related Posts:
Ohio Presidential Primary Postponed Until June 2

Indiana Elections Commission Authorizes No Excuse Absentee Voting in June 2 Primary

The Indiana Elections Commission on Wednesday, March 25 voted to allow for no excuse absentee voting in the now June 2 primary in the Hoosier state. While Indiana allows absentee voting, it has in the past been allowed only with an excuse.

But in the wake of the developing coronavirus pandemic and Governor Holcomb's response to it -- pushing back the primary by a month -- the state elections commission has eased that restriction. Voters will still have to file a request for an absentee ballot by May 21, 12 days before the primary and eight weeks from now. Although that deadline is 56 days off, efficiently processing absentee requests will hinge on whether the county election board is open. But voters will have until noon on June 2 to get their ballots in to the county to be counted.

At this time, early and in-person voting are still planned for the June 2 Indiana primary, but the state Elections Commission will have another meeting on April 22 to decide whether the election should shift to a completely vote-by-mail process.


--
Related Posts:
Indiana Delays Presidential Primary, Moves to June 2

Georgia Will Send Absentee Request Forms to All Active Voters for May 19 Primary

This is one way for Georgia to avoid the "just moved the primary but may need to move again" conundrum.

Just ten days after Georgia Secretary of State Brad Raffensperger (R) consolidated the March 24 presidential primary in the Peach state with the May 19 primaries for other offices -- a May date that has since seen Kentucky leave it -- he has made another move to avoid further potential community spread of the coronavirus. According to Mark Niesse of the Atlanta Journal-Constitution, Raffensperger has now subsequently announced that all active voters in the state of Georgia will be mailed absentee request forms that will allow them to request ballots and participate from afar in the May 19 primary.

There is no timetable yet for when request forms will be mailed, but voters will now have to submit those requests, await a ballot from the state to select their preferences for president and other offices and then return them (It will require the voter to add a 55 cent stamp.) before polls close on May 19 at 7pm. That is no shortage of administrative hurdles for the state -- processing request forms, mailing them out and taking in the ballots -- much less the new requirements this will impose on voters, those not exactly familiar with the absentee process and the deadlines associated with them.

Is two months (or just under) enough time for all of that? Time will tell. But this is a positive step to provide voters with an alternative to the early and in-person voting options that remain in place for May 19.


--
Secretary Raffensperger's press release on the change is archived here.


--
Related Posts:
Georgia Postpones Presidential Primary, Consolidates with May Primaries

Georgia House Speaker Calls for Another Presidential Primary Move in the Peach State

Chorus for an Even Later Georgia Presidential Primary Grows