Tight deadline, savvy pitch: How one red state expanded access to the ballot

Introduction

On the afternoon of January 21, a group of public officials gathered in Kentucky’s Capitol in Frankfort for a delicate conversation about changing how the state conducts elections. Masked and spread out in a room typically used for committee hearings, they didn’t have much time. 

There were only 22 days left in the legislative session. 

The group included state legislators, Secretary of State Michael Adams, Republican and Democratic elected county clerks, representatives of the state elections board and (virtually) a staff member for U.S. Sen. Rand Paul. They took turns laying out what the executive director of the state elections board described as a “hodgepodge” of priorities — increasing voter access among them — that somehow had to evolve into a bill that could pass. Everyone put their wish lists on the table. 

They all knew the effort was fraught. 

Since the 2020 election, Republican lawmakers around the country, supported by the machinery of the national party and allied conservative groups, have filed hundreds of bills as part of a push to restrict voter access, making even arcane administrative questions the subject of controversy. Two weeks before the discussion in the Kentucky Capitol, rioters falsely asserting the election was stolen from former President Donald Trump breached the U.S. Capitol. GOP members of Congress — led by Kentucky’s own freshly re-elected senior senator, Mitch McConnell — have vowed to oppose federal legislation that would set national standards for voting access, saying it should be left to states.

Kentucky is also a surprising place for bipartisanship in any form, let alone on voting. It has a Democratic governor, Andy Beshear, but is otherwise ruby red. Republicans in November romped to expanded supermajorities in both houses of the Legislature and passed bills aimed at limiting Beshear’s powers. Democrats overall had scant leverage to shape the agenda. 

On top of that, try to name a state that has offered voters fewer options in the modern era. It isn’t easy. When COVID-19 hit, Kentucky was one of just six states with laws that didn’t allow early in-person voting, according to the National Conference of State Legislatures. Its polls closed at 6 p.m., earliest in the nation. And using an absentee ballot required qualifying under a limited number of excuses and then navigating a cumbersome, multistep process. Approximately 96% of the state’s voters in the 2018 general election cast ballots in person over one 12-hour stretch on Election Day, according to data from Kentucky election officials, one of the highest percentages of any state.

“Our election code was written in 1891 — before automobiles, before home electricity,” said Adams, a Republican. “That’s how backward it is.”

But against the backdrop of the pandemic, Adams and Beshear used emergency powers to temporarily offer mail ballots and early voting options to all voters in 2020. The state pulled off a primary and general election widely hailed as a national model, and turnout hit record levels even as the number of Kentucky voters casting in-person ballots on Election Day dropped to 22%. And because Republican candidates won at all levels of government, the party had few worries about losing power. 

That meant the group that convened in Frankfort in January had both momentum and political capital. They were prepared to use it. 

The meeting set off a sprint to get a bill through before the session ended. The group agreed to concentrate on the art of the possible, limiting the discussion to proposals with broad support. That meant, for example, not trying to legalize no-excuse mail ballots. And the time crunch meant much of the bill would have to be negotiated behind the scenes.

Until the end, the legislation teetered on the edge.

The ad hoc coalition pulled it off, offering a glimmer of hope that voting laws don’t have to be born from partisan warfare. But interviews with those involved in, or following, the effort show the Kentucky legislation was the product of factors that may be hard to reproduce: good timing, engaged election officials, players willing to compromise and savvy enough to center their sales pitch to skeptical Republicans. Adams has repeatedly insisted, even under reports of a backlash among members of his own party, that secure elections and robust voter access can go together.

“An Act relating to elections” expands voter access in ways that are modest, but real. The bill changes the law to add three days of early in-person voting before elections — fewer than any other state with early voting, but something instead of nothing. It also permits Kentucky to make permanent an absentee ballot request portal that greatly streamlines obtaining one for voters who qualify under an excuse, legalizes ballot drop boxes and creates a process to cure signature mismatches that would otherwise disqualify mail ballots, among other changes. 

The goal, said Jared Dearing, executive director of the state elections board, “was not a sweeping election reform that changed everything from the ground up and everyone got everything they wanted. How would that get passed? That wouldn’t get passed.” 

Instead, he said, “it’s policy through incremental changes.”

Finding common ground

When the pandemic hit, both Beshear and Adams had only been in office a matter of months. 

Beshear, a former state attorney general and the son of a former governor, narrowly beat an unpopular Republican incumbent in a year when Kentucky Republicans otherwise declared victory up and down the ballot. The new governor said he wanted to set an example for the state and “maybe even for the nation on how we can move forward on areas that we can agree on and how we can civilly disagree on areas that we might not have common ground.” He was one of the first to call Adams and congratulate him on his victory after the election.

Adams, 45, grew up in western Kentucky and volunteered for the Bush-Quayle campaign as a teenager. He was general counsel to the Republican Governors Association and built an election law practice before running for secretary of state. 

On the campaign trail, Adams said his goal was making it “easy to vote and hard to cheat.” His signature promise was a voter ID law. At a reception shortly after both men took office, Adams recalls Beshear taking him aside and asking about the planned legislation. Was it possible to include a couple days of early voting? 

Adams thought about it. But he concluded it would tank the bill.

Still, he wanted to hear from all sides about election rules. He’d asked Joshua Douglas, a well-known election law professor at the University of Kentucky who takes a dim view of voter ID laws, to serve on his transition team. Douglas pointed out that he would be “vocal about my opposition.” Adams’ response, Douglas recalls: “I want you to be.” So Douglas said yes. 

Kentucky adopted an ID law in early 2020, and Douglas described it in a forthcoming law review article as unnecessary but “likely one of the mildest forms of a photo ID requirement for voting in the country.” The lesson Douglas drew from that: “Compromise may be possible, even on the most contentious voting rights issues.”

The pandemic brought more opportunities. State lawmakers agreed to grant Beshear and Adams the ability to jointly alter the manner in which the primary was conducted. Facing a drastic shortage of poll workers and counties unable to access many usual polling places, Dearing assembled a working group to help design a plan. The attitude of the members of the bipartisan state board of elections was, “failure’s not an option. We have to find a way,” said DeAnna Brangers, a board member who is also vice chair of the state Republican party. Eventually, all signed off.

Kentucky would, for the first time, not just allow voters to freely use mail ballots, but encourage them to do so — a way to relieve pressure on in-person voting sites. On top of it, the state had opened up two weeks of early in-person voting and allowed counties to consolidate polling places into large sites. The state’s most populous county, Jefferson, decided to have only a single location. 

Jefferson County includes the city of Louisville, and is home to the largest Black population in the state. Its sole polling place was a cavernous convention and expo center, with upwards of 400 voting booths and a free shuttle to the site. Dearing modeled expected voter turnout before the state approved the county’s plan, taking into account the use of absentee ballots and other factors, to assure himself that would be enough.

But hours-long lines in communities of color during the Wisconsin and Georgia primaries sharpened national attention on voter access. The drastic reduction in Kentucky polling places sparked fears outside the state, and celebrities were speaking out. “This is SYSTEMIC RACISM and OPPRESSION,” LeBron James tweeted. The phones at the state elections board jammed with callers, many from out-of- state, delivering angry messages and even death threats. Dearing received a postcard from as far away as Bern, Switzerland. 

Around 10 p.m. the night before Kentucky’s rescheduled primary election, an anxious Dearing dialed an MIT voting expert from his living room. What if the turnout projections were wrong?

Dearing is a Democrat who once worked for then-Gov. Jerry Brown of California and emphasizes the need for nonpartisan election administration. A former rower and onetime football player, he stands at 6 feet, 7 inches, studied public policy and engineering at the University of California, Berkeley, and still crafts surfboards from blocks of foam after years in landlocked Kentucky. On the phone with the MIT expert that night, Dearing went over all his numbers — voting booths, equipment, check-in stations. He doesn’t remember sleeping at all. By 4 a.m., he was back in his office.

That day, Louisville had virtually no lines. 

Kentucky — one of the most restrictive states in the nation on voter access — was suddenly a national model for how to run an election during a pandemic, minor hiccups aside. Beshear and Adams made some adjustments to the plan for the general election but kept the expanded absentee ballot options and early voting; that too went relatively smoothly.

Afterward, Adams was quick to say he — and the county clerks he’d surveyed — wanted to keep some of the changes permanently. But in January, as the legislative session began, “I couldn’t find a sponsor,” Adams said ruefully. “I called a lot of legislators and asked them if they would sponsor this stuff, and they all said no.”

The sales pitch

That might have been that. But lawmakers were having conversations, too. 

Some of the state’s 120 county clerks reached out to state Rep. James Tipton, a Republican they had worked with before, about election legislation. Rep. Josh Branscum, a former chair of the state board of elections who stepped down to run for office, was an obvious point of contact for his former colleagues. And another Republican freshman, Rep. Jennifer Decker, saw the state’s record turnout in 2020 as a success and wanted to think about how to “capture some of what happened last year.” Driving to Frankfort early in the session, she pulled over to take a call from her former boss — U.S. Sen. Rand Paul — and found he was also interested in seeing election legislation in Kentucky. 

Before long, the three state legislators joined forces and agreed with House leadership to have a single bill with Decker as the primary sponsor. It turned out to be a strategic choice. Decker’s background as a former field representative for Paul and former head of the Shelby County Republican Party gave her deep GOP credibility. The January 21 meeting came next. The two goals of any bill, Decker said, would be “integrity at the ballot box and as many voters as we could get” turning out.

Nearly everyone attending was immersed in administering elections, stakeholders who would have to make any changes work in practice. Afterward, Decker and the other legislators needed to translate the shared priorities into legislation and build support. The process was moving so fast that they (and Paul) testified about the proposal before a House committee on elections in mid-February before the bill was even filed, prompting calls from colleagues in both parties seeking to learn exactly what would be in it. 

Throughout, proponents highlighted  aspects of the bill likely to appeal to a Republican audience, pairing the increase in access with security-oriented provisions. “It’s the combination of the messaging and the messenger,” said Trey Grayson, a Republican former secretary of state who represented the county clerks’ association at the January meeting. Supporters knew the Legislature had little time and a lot of priorities, including criminal justice reform and an unusual need to pass a budget in an odd year because the pandemic cut the previous session short. 

“The only way to get them to not just embrace this but to make it a priority and get it through with so much other competition was to have some security-oriented sweeteners in here,” Adams said. 

The absentee ballot portal, for example, made it far easier for eligible voters to request a ballot and for clerks to follow through, but it also allowed state officials to monitor the source of ballot requests and how they were processed, a security improvement. The bill required new voting systems purchased by counties to provide paper ballot backups, included provisions aimed at cleaning up the voter rolls and explicitly prohibited nearly all third party ballot collection. “While we’re expanding access, we’re also doing it through adding transparency and security to the process,” Dearing told the House committee in late February. 

And former U.S. Rep. Ben Chandler, a Democrat who now chairs the state elections board, said Republicans who had worried about expanding voter access before the election were reassured by how well the party had done in the state, blunting arguments about partisan advantage. “You couldn’t say that by expanding the vote, suddenly you turned it into a Democratic state,” he said. 

Democrats in the Legislature pushed for more — additional days of early voting were included in earlier bill drafts — but couldn’t prevail. And local voting rights advocates were on the outside looking in, unable to buttonhole elected officials in the halls because of COVID restrictions. 

“I think the legislators had their minds made up and that’s what we got,” said Raoul Cunningham, the longtime head of the Louisville NAACP. Cunningham spoke out to support election officials when they were under siege about the primary’s reduced number of polling places. He and Dearing talk frequently and have a good relationship, but Cunningham was disappointed in the bill. He would have preferred a more public process and a greater expansion of access, including designating a Sunday for early voting to allow a “Souls to the Polls” effort like those popular with Black voters in other states.

Still, “when you’ve lived in Kentucky your whole life and there’s never been in recent history any kind of increased access to the polls, it’s pretty exciting,” said Kate Miller, advocacy director for the Kentucky ACLU, who said the group was generally in favor of the bill. 

Though the measure wasn’t as sweeping as they would have wanted, local advocates were acutely aware of the Republican push to roll back access around the country and glad to see things moving the other direction in Kentucky. “We could have prohibited offering water at the polls, I guess,” Cindy Heine, legislative liaison for the League of Women Voters of Kentucky, said wryly, referring to a widely criticized measure passed in Georgia in late March. 

“When you’ve lived in Kentucky your whole life and there’s never been in recent history any kind of increased access to the polls, it’s pretty exciting.”

Kate Miller, advocacy director for the Kentucky ACLU

Some voting rights advocates outside the state have been more critical. But David Becker, executive director and founder of the Center for Election Innovation and Research, suggests looking at the changes from where the state started out. Republicans and Democrats consulted with local election officials, then “reached a consensus on what they decided could work,” he said — two things he doesn’t see happening anywhere else in the country. 

In late February, the bill passed the House with only four votes against it. Almost all the House Republicans leery of an election bill when Adams first suggested one had been won over.

But that was the easy part.

‘It’s not a big priority’

The Senate, everyone knew, would be the tougher sell. For one, no state senators had helped craft the legislation, something Decker chalked up in hindsight to a freshman mistake. And the Senate majority leader, Damon Thayer, was dubious about aspects of the bill, including early voting. Thayer thought Adams compromised too much in his negotiations with the governor over voting options for the 2020 elections, describing himself as “still chapped over that.” The Legislature passed a bill saying it couldn’t happen again.

Grayson, representing the clerks, checked in with Thayer about the proposal. Thayer texted back: He was open to a bill, but “nothing changing the manner of elections” — like, say, early voting. “Paper ballot. Voter rolls clean up. And it’s not a big priority,” he replied. 

But the legislation had momentum. It helped that a bipartisan coalition of the officials who administer elections — the state board, Adams, the clerks’ association — had a hand in crafting the measure and all backed it, lobbying to get it over the line. Adams publicly highlighted polling from a nonpartisan nonprofit, Secure Democracy, showing how popular the absentee ballot portal, early voting and other things the bill would legalize were with voters, including Republicans. “Everything just had so much support,” said Sarah Walker, Secure Democracy’s executive director.

And the clerks were an especially powerful voice. They’d heard from constituents who liked new voting options in place during the pandemic, said Chris Cockrell, the clerk in Montgomery County and the head of the statewide clerks’ association. Cockrell himself testified before the House committee about a truck driver who said he’d missed elections in the past because he’d been on the road, and appreciated the opportunity to vote early.

The clerks wanted this off year to implement changes and buy new equipment, rather than in an election year. The legislation would also allow them to deal with longstanding administrative hassles and offer vote centers available to any resident of the county.

The clerks’ association circulated talking points. Members made calls, soothing fears about election security. “You know your legislators, you may have gone to school with them, you may have gone to church, you know, social functions, so you do have a lot of cell phone numbers,” Cockrell said. 

With time growing short, Thayer agreed to meet with Decker “out of respect for her and the fact that Sen. Paul’s fingerprints were on the bill.” They went through it paragraph by paragraph. Thayer required some changes and assurances, like prohibiting the absentee ballot portal from accepting requests prior to 45 days before the election. On other provisions, he “decided to acquiesce.” When it went before a Senate committee shortly afterward, Thayer was clear about his mixed feelings and original hesitation. But he said he had heard from constituents with jobs that made voting on Election Day difficult. Three days of early voting, including a Saturday, struck him as a reasonable compromise. 

“I am going to support this bill,” he told the committee.

Later, on the floor of the Senate, Thayer described the measure as “one of the best voter integrity laws in the country.” After another Republican senator said she would vote against it, Thayer again spoke up. “I assure you,” he said, “there are no boogeymen hiding behind the tree in this bill. It’s been significantly vetted. I read through it myself multiple times.”

The ultimate tally: 33 to 3.

Because the Senate bill had differences from the House version, it had to go back for a concurrence vote. Technical problems delayed that step as the clock ticked down, leaving it to a late-night vote on the second-to-last day of the session. 

It just needed Beshear’s signature. 

On April 7, he walked to a microphone in the rotunda of the Kentucky Capitol, removed his black mask and called it a “good day” of bipartisan action.

“I want to start by talking about voting,” he said. “About how, when much of the country has put in more restrictive laws, that Kentucky legislators, Kentucky leaders were able to come together to stand up for democracy and to expand the opportunity for people to vote.”

In remarks echoing Dearing’s point about incremental progress, he called the bill an “important first step.”

With Dearing, Adams, and legislators Decker, Tipton and Branscum arrayed behind him against a blue “Team Kentucky” backdrop, Beshear signed it. Changes that seemed impossible just a little over a year earlier were law. Everyone bumped elbows to celebrate.  

But Thayer insists this is not a first step, no matter what the governor says. It’s the last one.

“We are not,” he said, pointedly, “going any further on early voting or mail-in ballots or any of the liberal components he is pushing for.”

Carrie Levine is a senior reporter at the Center for Public Integrity. She can be reached at clevine@publicintegrity.org. Follow her on Twitter @levinecarrie.