3. Making It Easier to Cast Absentee Ballots
The two principal methods states have adopted to facilitate the casting of absentee ballots include providing prepaid postage on the ballot envelopes and offering secure and convenient sites where voters can drop off their ballots, either in secure drop boxes or in person. In addition, some states have removed legal and technical barriers to casting absentee ballots. States that have not taken such steps are facing an onslaught of litigation from voting rights advocates.
a. Prepaid Postage
Prior to the pandemic, 14 states, by law, provided prepaid postage on ballot envelopes or all statewide elections. Two additional states — Virginia and Massachusetts — amended their laws this year to provide prepaid postage for all absentee ballots going forward. A number of other states and localities voluntarily included prepaid postage on absentee ballot envelopes during the primaries even though they were not required to do so by law. For example, in Ohio, after Gov. Mike DeWine canceled in-person voting on March 17 in lieu of an all-mail election on April 28, prepaid postage was provided on all absentee ballots — although not for absentee ballot applications. In Pennsylvania, after Gov. Tom Wolf encouraged registered voters to apply for mail-in ballots ahead of their June 2 primary, Allegheny County provided prepaid postage on both ballot applications and ballots, while Philadelphia County provided prepaid postage on ballots. For Michigan’s May 5 local elections, voters were sent prepaid return envelopes for ballots and ballot applications. In Maryland, the state board of elections provided prepaid postage for mail ballots for the June election, with the approval of the governor. In total, 23 states and Washington, DC, provided prepaid postage for absentee ballot applications in the primaries.
In other states, absentee and mail voters had to procure their own postage for their absentee ballots — which can be prohibitively costly for some and especially difficult for those who do not have postage at home and would face health risks to obtain it.
Thus far, 23 states and Washington, DC, have announced that they will include prepaid postage on their ballots for November. Election officials in two of the states that provided prepaid postage during the primaries — Georgia and Iowa — have said that they do not plan to do so again in November because they lack the funds to do so. One state, South Carolina, has agreed to prepay postage for absentee ballots following a lawsuit. Nationally, there are at least 10 lawsuits pending in nine states challenging the requirement that voters pay for postage to mail ballots.
b. Secure Drop Boxes
During the primaries, a number of states and jurisdictions added additional methods for voters to drop off their ballots without having to send them by mail, including secure drop boxes and curbside voting. For example, Georgia and Kentucky adopted emergency regulations authorizing the use of secure drop boxes for ballot return. Ohio passed temporary legislation requiring the installation and use of secure drop boxes outside of each county board of elections office for its primary election, and Massachusetts recently passed legislation permanently authorizing the use of ballot drop boxes.
Although only eight states have permanent statutes on the books that explicitly authorize the use of ballot drop boxes, a number of states and municipalities have used drop boxes for years without issue. Only a few states, such as New Hampshire, and Tennessee, explicitly prohibit their use. The vast majority of local election authorities thus have discretion to install secure drop boxes, and — particularly in light of the pandemic — increasing numbers of these authorities have seized the opportunity to offer voters this option, notwithstanding that they typically cost thousands of dollars each. Indeed, election officials in Georgia and Michigan have both indicated that they would significantly increase the number of drop boxes this year if they had sufficient funding.
Currently, ballot return drop boxes will be available for use in the November general election in at least 39 states and Washington, DC, although not all of these states make boxes available on a widespread basis, instead leaving it to local election authorities to fund and install the boxes. Some states, including Louisiana, and Ohio, permit drop boxes but strictly limit their availability, allowing only one per county — irrespective of the county’s population — and require that they be located inside or immediately outside the county election office. In Ohio, this restriction was imposed through a directive from the secretary of state, which is now being challenged in both state and federal courts. In the state case, the court recently enjoined the enforcement of the secretary’s directive, which injunction was promptly appealed. In New Hampshire, which currently prohibits the use of drop boxes, the American Federation of Teachers has sued in state court to remove that prohibition.
Drop boxes have recently become a contested topic in some states as a result of opposition by the Trump campaign and the RNC. In Pennsylvania, Trump and the RNC filed a lawsuit seeking to prohibit the use of drop boxes under a novel legal theory and an unsubstantiated (and false) claim that drop boxes are particularly susceptible to voter fraud. A federal district court judge found that they “failed to produce any evidence of vote-by-mail fraud in Pennsylvania,” and then put the case on hold pending resolution of a case raising similar issues in state court. The attack on drop boxes has, however, caused at least some election officials in the state to forego the use of drop boxes.
c. Removing Legal Barriers to Casting Ballots
A patchwork of legal barriers to casting absentee or mail ballots exists in a sizable minority of states. The most onerous of these barriers include notary and witness requirements and documentary identification requirements.
Ordinarily, 12 states require voters to include notary or witness signatures with their ballots. Since the pandemic began, six states have thus far either suspended or relaxed the witness and/or notary requirement for at least one election. Both North Carolina and Oklahoma loosened their witness and notary requirements via legislative action. Although Oklahoma’s law is less strict now than it was to start the year, the legislature notably reimposed a notary requirement (albeit a more flexible one for the Covid-19 state of emergency) just days after the state supreme court entirely struck down its original notary requirement. Meanwhile, North Carolina reduced its requirement from two witness signatures to one for the 2020 elections.
The other four states suspended their witness requirements entirely, thanks to successful litigation. Lawsuits in Minnesota, Rhode Island, and Virginia resulted in settlements pertaining to both primary and November 3 elections. The Republican National Committee attempted to block the Rhode Island agreement on appeal, but their efforts were rejected by both the First Circuit Court of Appeals and the Supreme Court. A federal court enjoined South Carolina from enforcing its witness requirement for the June primary and runoff only, although the requirement continues to be actively challenged in two separate lawsuits, which are expected to be decided in advance of the November election. In a federal lawsuit in Alabama, the courts initially blocked the state’s requirements of witness or notary signatures on absentee ballots, but the U.S. Supreme Court stayed that ruling, essentially reimposing witness and notary requirements just 12 days before the state primary.
Accordingly, witness and notary requirements will be enforced in only nine states this November, or possibly fewer still. At least 16 lawsuits remain pending across eight of the nine states that have not entirely dispensed with these requirements. All but one of those suits were filed in response to the pandemic.
In addition, eight states usually require voters to submit photocopies of photo IDs either with their absentee ballot applications or with the ballots themselves. As of now, that number remains the same for the November election. While one state that would otherwise require a photo ID copy to accompany an absentee ballot — North Carolina — has been prohibited from enforcing the requirement by two separate court orders (one federal, one state), another state — Kentucky — recently implemented such a requirement, which will be in effect for the November election. In a prior Wisconsin suit, the state supreme court overturned an executive order allowing voters to obtain absentee ballots without providing photo ID.
The number of states that enforce absentee ID requirements could nonetheless change by November, as 14 lawsuits challenging these requirements are currently pending across eight states. Suits in Alabama, Maine, New Hampshire, and Oklahoma challenge the states’ ID requirements with respect to mail voting. Meanwhile, lawsuits pending in Kentucky, North Carolina, and Wisconsin challenge the states’ ID requirements for both in-person and mail voting, and lawsuits in Texas challenge the requirements for in-person voting.