This paper presents the most recent analysis of how different states conduct their elections—with an emphasis on the most contentious issues:
- Conditions and availability of early voting by mail
- Requirements for voter identification
- Regulations on ballot harvesting
Hoover senior fellow Michael Boskin and his co-author provide a simplified and graphic summary of the data, with full sources available in the appendix.
Additionally, in the video above, Hoover distinguished visiting fellow Ben Ginsberg explains why some states can announce complete results on election night, while others take days to tally all ballots cast.
By: Michael J. Boskin, Garrett Te Kolste
Research Team: Tennenbaum Program for Fact-Based Policy
Download Paper from Hoover.org
INTRODUCTION
The US Constitution requires that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” and that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” (for president). Perhaps not surprisingly, and for many reasons, states vary considerably in the procedures they use in elections and vote counting. Historically, there has been a tension between those who desire greater ease of access to voting and those desiring that it be made more difficult to undermine the integrity, or perceived integrity, of elections. This is not surprising when election outcomes can be very close, as they have been in recent presidential, and some senate and congressional, races. Historically, there have been some classic examples of fraud. Take, for instance, the Democratic primary of the 1948 US Senate race, in which Lyndon B. Johnson eventually defeated Coke Stevenson by 87 votes. Days after the polls had closed, an additional 202 allegedly fraudulent votes were tallied in alphabetical order, apparently all in the same handwriting, of which Johnson won 200. Correspondingly, there have historically been numerous examples of denying suffrage. Prominent examples include the denial of suffrage to women and the poll tax that disproportionally denied suffrage to African Americans, both of which were declared illegal, by the Nineteenth and Twenty-Fourth Amendments, respectively.
Over time, most states have moved away from requiring the overwhelming bulk of voters to vote on election day. They have instead pursued one or more dimensions of flexibility of the timing and place of voting. This variability likely causes some confusion as voters in one state observe different rules in other states affecting outcomes that they believe are important for their well-being. With the electorate becoming more and more polarized, scientific gerrymandering can allow one party to try and gain advantage over the other. With most such disputes winding up in the courts, it is not surprising that the integrity of voting and confidence in this institution are increasingly called into question. This is especially true in presidential elections, which are based on the Electoral College tally, not the popular vote. In some recent elections, the candidate elected was not the recipient of the most popular votes (e.g., 2000 and 2016). Historians cite the 1824 presidential election in which Andrew Jackson won a plurality of the popular and electoral votes. However, Henry Clay’s supporters in the House threw their support to John Quincy Adams and propelled him to the presidency. Clay was then awarded the vice presidency. Another example is the 1872 presidential election in which the contested states Florida, Louisiana, South Carolina, and Oregon were awarded to the Republican Rutherford B. Hayes over Democrat Samuel J. Tilden by a Republican dominated Electoral Commission. Hayes won by a single electoral vote. In the 2000 presidential election, George W. Bush eventually was declared the winner in Florida by a few hundred votes over Al Gore, but not until contentious recounts had been conducted for many weeks, and Florida’s electoral votes made the difference in Bush’s eventual election.
To assist those interested in understanding the current state of play in election rules and laws, we present below brief aggregate summaries of many of the most contentious voting issues, with the differences between states augmented by a series of pie charts. A detailed breakdown of each issue by state is presented in the appendix. Since the results of presidential elections depend on the Electoral College vote, we present the analysis both in terms of the percentage of states with alternative rules and the percentage of electoral votes represented by those states. Sometimes the difference between the percentages is trivial; other times it is substantial. Detailed lists of each of these rules by state are presented in the appendix.1 For those readers interested in a nonpartisan analysis of the election rule differences highlighted in the 2020 and subsequent elections, and whether any “irregularities” possibly changed outcomes, we refer them to the paper by Bruce E. Cain and Benjamin Ginsberg, “Restoring Confidence in American Elections,” which examines the viability of adopting “best practices” for nonpartisan election reforms to improve confidence in election results; and the paper by Justin Grimmer and Eitan Hersh, “How Election Rules Affect Who Wins,” which examines the effect of recent election rule changes on voter turnout and whether there was any effect on election outcomes.2 Even when these rules do not clearly affect the outcome of elections, they, and especially their changes, can induce suspicion about potential problems with election integrity.
