Covid-19 means that states will have to run the 2020 general election differently. The Brennan Center has published a detailed plan outlining the changes needed to run a safe and fair election during a pandemic. Among other things, states will need to dramatically expand the use of mail voting, ensuring that every eligible voter has the option of voting by mail ballot.
Thirty-four states and the District of Columbia already offer all voters the opportunity to vote using a mail ballot, either because they have “no-excuse” absentee voting or because they conduct their elections primarily by mail ballots. In these states — which include every battleground state for 2020 — it is clear that every voter is already legally entitled to obtain a mail ballot this November without any statutory change.
The remaining 16 states allow voters to cast a mail ballot only if they meet certain criteria — typically, that the voters will be away from their home county on Election Day, that they are serving abroad in the military, or that they are ill, disabled, or hospitalized. In each of these states, however, Covid-19 should qualify as an excuse applicable to all voters. In every state, a voter’s illness or disability constitutes a valid reason for an absentee ballot. Whether or not voters have actually fallen ill from the coronavirus, the fact that most voters are likely either asymptomatic carriers, at risk for contracting the virus, or at risk for complications from the virus should be sufficient to meet the existing statutory requirements.
Indeed, some state statutes expressly allow for absentee ballots where there is a risk that voters will become ill. In Mississippi, for example, a voter may cast an absentee ballot if the voter’s “attendance at the voting place could reasonably cause danger to himself or others.” In Texas, a voter may obtain a mail ballot if the voter “has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter's health.” In short, Covid-19 should serve as a valid “excuse” that entitles every voter to an absentee ballot under existing law, and authorities in every “excuse” state should make that clear now.
In a growing number of states, election officials and governors have already interpreted their absentee voting laws broadly to permit all voters to cast a ballot by mail in the primaries. These same interpretations should apply in November, assuming Covid-19 will still be around, as experts predict. Those states are:
- Alabama: On March 13, 2020, Secretary of State John Merrill said that all voters “who are concerned about contracting or spreading an illness or have an infirmity may vote by absentee” in the state’s primary.
- Arkansas: According to a county election official, the state board of elections “is taking the position that warnings from public health officials to avoid large gatherings of people when possible is a sufficient basis for voters who ordinarily would not qualify for absentee voting to do so in the” state’s primary runoff election.
- Delaware: On March 24, 2020, Gov. John Carney issued an executive order that mandated that the qualification of “sick or physically disabled” shall also apply to anyone who is self-quarantining or social distancing to avoid exposure to or stop the spread of Covid-19.
- Indiana: The state election commission has implemented no-excuse absentee voting by mail. The commission has the power to authorize voters to vote by absentee ballot “if the commission determines that an emergency prevents the person from voting in person at a polling place.”
- New York: Gov. Andrew Cuomo issued an executive order providing that “temporary illness” — an excuse under the state’s absentee voting law — includes “the potential for contraction of the COVID-19 virus” for the state’s primary election.
- Texas: A state court issued a temporary injunction on April 17, 2020, allowing all voters to cast a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability, as a result of Covid-19. The ruling is expected to be appealed by the state.
- West Virginia: On March 18, 2020, Secretary of State Mac Warner said that voters who are worried about the coronavirus can apply to vote absentee in the state’s primary, and he has encouraged them to do so. Secretary Warner did so on the basis of a legal opinion from the state Attorney General saying that Warner’s emergency powers are “broad and flexible” and can be applied to the election.
In several other states, there is already precedent for interpreting the absentee ballot law to allow for broad access to absentee ballots during the pandemic:
- Connecticut: Secretary of State Denise Merrill opined that Covid-19 qualifies as an illness under the state’s absentee ballot law and on March 13, 2020, she requested that the governor issue an executive order expressly allowing voters to obtain absentee ballots for the primary under that provision.
- Massachusetts: During the primary elections, Secretary of the Commonwealth William Galvin treated self-quarantined voters as hospitalized for purposes of the state’s emergency absentee voting law (though these voters were required to have their absentee ballots hand-returned to their polling places).
- Missouri: Election officials have been divided over whether fear of Covid-19 is sufficient to qualify for an absentee ballot, but a state appellate court has said that the state law provision allowing absentee voting if the voter “expects to be prevented from going to the polls to vote on election day due to ... [i]ncapacity or confinement due to illness or physical disability” should be construed broadly. According to the court, the “statutes do not require the voter to entertain a good faith expectation, but simply allow the voter to state that he expects to be ill or disabled.” footnote1_pqbnbtk 1 State v. Redpath, 668 S.W.2d 99, 103 (Mo. Ct. App. 1984).
- New Hampshire: Interpreting a state law allowing voters with physical disabilities to cast absentee ballots, Deputy Secretary of State David Scanlan said that that the definition of disability “could be expanded in a crisis to accommodate a pandemic situation across the country.”
In sum, there are only 16 states that require voters to have an excuse before casting an absentee ballot. Nearly half of those states have already made clear that Covid-19 provides a valid excuse entitling voters to receive mail ballots, at least during the primary elections. Election officials, governors, and courts all have the authority to clarify that every eligible voter is entitled to an absentee ballot during the pandemic without making any changes to state statutes. They should use that authority now.
State v. Redpath, 668 S.W.2d 99, 103 (Mo. Ct. App. 1984).