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Covid-19 Should Be a Legitimate ‘Excuse’ to Vote by Mail

In the 16 states that require an excuse to vote by mail, fear of the coronavirus should become an acceptable reason for receiving a mail ballot for the November election.

Last Updated: April 20, 2020
Published: April 20, 2020

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.
  • Arkan­sasAccord­ing 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_i7pa0em 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.

End Notes