Mail Voting: What Has Changed in 2020

Since March 11, 2020, when the World Health Organization declared Covid-19 a pandemic, all 50 states and Washington, D.C., have conducted primary, runoff, or special elections. When the pandemic hit, it quickly became clear both that it would be necessary to dramatically increase absentee or mail voting options to protect public health and that the vast majority of voters preferred to vote absentee this year. The five states that typically hold their elections principally by mail, as well as those in which most voters typically vote absentee, did not have to change their election practices to ensure access to mail ballots. footnote1_c4cghq8 1 Principally by mail: CO, HI, OR, UT, and WA; typically by absentee: AZ and CA.  But in other states, which have a hodgepodge of obstacles to absentee voting, this shift required at least some significant changes to laws or practices.

During the primaries, states varied in the efforts they took to expand access to absentee or mail voting in light of the pandemic. The majority of states that did not already have expansive mail voting options on the books took significant steps to expand access to absentee voting for the primaries, the general election, or both, although there were notable exceptions. footnote2_lki1g0k 2 See “Changes to Election Dates, Procedures, and Administration in Response to the Coronavirus (COVID-19) Pandemic, 2020,” Ballotpedia, accessed July 22, 2020, https://ballotpedia.org/Changes_to_election_dates,_procedures,_and_administration_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020#Absentee_voting_procedure_changes.  Some states, like Connecticut, Delaware, and Nevada, took especially robust steps. A handful of states, including Arkansas, Louisiana, Mississippi, Tennessee, and Texas, made few or no changes to their voting procedures to promote increased absentee voting. Among the minority of states that have not willingly expanded access to mail-in voting, several have been compelled to do so by courts. Indeed, a record number of voting rights lawsuits have been filed in 2020, most of them in response to or otherwise pertaining to the Covid-19 pandemic: At least 182 voting rights cases were filed between January 1 and September 15, 2020. footnote3_7do1gtx 3 This number encompasses all manner of cases related to voters’ ability to access the polls, such as cases involving voter registration and purge issues, felony disenfranchisement, vote-by-mail, in-person early or Election Day voting, polling place safety, ballot order issues, and postponement or cancellation of primaries. Not included are cases involving candidacy issues, redistricting, or ballot initiatives. For additional information, see Brennan Center for Justice, “2020 Voting Rights Litigation,” September 15, 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020.  Of those, 167 pertain to the pandemic, 147 involve vote-by-mail issues, and 41 involve polling place issues. footnote4_31nnq3r 4 A number of cases involve both vote-by-mail and in-person voting issues.

In general, changes to absentee voting fall into four categories: (1) expanding eligibility for absentee voting in the states that normally require an excuse to do so, (2) making it easier for voters to obtain absentee ballots by mailing ballot applications and/or ballots to all or a subset of registered voters, or by creating online ballot request systems, (3) making it easier to cast absentee ballots by including prepaid postage or providing safe ballot drop-off options, and (4) adjusting counting rules to prevent widespread disenfranchisement of eligible absentee voters.

Even before Covid-19, the vast majority of Americans were entitled to vote by absentee or mail ballot. Generally, 34 states and the District of Columbia allow all registered voters to vote by absentee ballot in any election. footnote1_s1ufb7i 1 AK, AZ, CA, C O, DC, FL, GA, HA, IA, ID, IL, KS, MD, ME, MI, MN, MT, NC, ND, NE, NJ, NM, NV, OH, OK, OR, PA, RI, SD, UT, VA, VT, WA, WI and WY. For more on state laws on absentee ballots, see Brennan Center for Justice, Preparing Your State for an Election Under Pandemic Conditions, accessed July 22, 2020, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions.  (Virginia became the 34th “no-excuse” absentee voting state earlier this year when it passed legislation to eliminate its excuse requirement. footnote2_hyehqaf 2 2020 Virginia Acts of Assembly Rec. 1149 (2020), https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1149+pdf. ) Of those 34 states, 5  —  Colorado, Hawaii, Oregon, Utah, and Washington —  conduct their elections principally by mail.

Although 16 states generally restrict absentee voting to those who qualify for one of a limited number of excuses, the excuse requirement did not limit access to absentee ballots for most voters during the primaries. footnote3_ocjhitt 3 Max Feldman, Eliza Sweren-Becker, and Wendy R. Weiser, COVID-19 Should Be a Legitimate ‘Excuse’ to Vote by Mail, Brennan Center for Justice, 2020, https://www.brennancenter.org/our-work/research-reports/covid-19-should-be-legitimate-excuse-vote-mail. That is because only five states — Arkansas, Louisiana, Mississippi, Tennessee, and Texas — did not let every person who fears spreading or contracting Covid-19 cast a mail ballot during at least one of their primaries, while Missouri required an excuse for its March 10 presidential primary but not its August state primary. footnote4_mihlk7r 4 The Louisiana legislature approved of the Secretary of State’s emergency plan to expand the absentee excuses for its July primary to permit absentee voting by those at higher risk of severe illness from Covid-19, those subject to a quarantine or isolation order or medical advice, those experiencing Covid-19 symptoms, and those caring for a child or grandchild whose school or child care provider is closed because of the virus. For more information, see Secretary of State R. Kyle Ardoin, “Secretary of State Emergency Election Plan for the July 11, 2020 Presidential Preference Primary and August 15, 2020 Municipal General Elections in the State of Louisiana,” April 20, 2020, https://house.louisiana.gov/Agendas_2020/Apr_2020/Emergency%20Election%20Plan%20for%20PPP%20and%20Mun%20General%20Rev.%204–20.pdf; But that did not apply to all voters who feared contracting or spreading Covid-19. On June 4, 2020, Missouri Gov. Mike Parson signed SB631 into law, permitting any registered voter to cast an absentee ballot in any 2020 election, subject to a notarization requirement. Individuals who have contracted or are in a statutorily specified at-risk category for contracting or transmitting Covid-19 are exempted from the notarization requirement. The law expires after this year, but did not apply in the March 10 primary. See Senate Bill No. 631, MO SB631, 100th General Assembly (2020), The General Assembly of the State of Missouri, June 4, 2020, https://legiscan.com/mo/text/SB631/id/2186150.  As in 2016, Louisiana’s July 11 primary had the lowest turnout rate (14 percent) of any state’s presidential primary this year in which both parties were voting (excluding caucuses). Missouri and Mississippi also had relatively low turnouts at 21.2 percent and 23.7 percent respectively, though their primaries took place on March 10, the day before the pandemic was officially declared. footnote5_616763b 5 Michael P. McDonald, “2020 Presidential Nomination Contest Turnout Rates,” United States Election Project, accessed July 22, 2020, http://www.electproject.org/2020p.

Of the 17 states that required a restrictive excuse to vote absentee prior to the pandemic, 13 states changed their rules to let all voters who fear contracting or spreading Covid-19 to cast mail ballots during at least one of their post-March 11 primary or runoff elections. footnote6_tmceidg 6 AL, AR, CT, DE, IN, KY, MA, MO, NH, NY, SC, VA, and WV.  Five states did so by gubernatorial order, five through action by state election officials, and four legislatively. footnote7_0pk6529 7 By gubernatorial order (AR, CT, DE, KY, and NY): Arkansas Governor Asa Hutchinson, “Governor Hutchinson Proclaims COVID-19 A Valid Reason to Vote Absentee,” August 7, 2020, https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-proclaims-covid-19-a-valid-reason-to-vote-absentee; Connecticut’s governor issued an executive order pertaining to the August 11, 2020 primary, then the legislature passed a law specific to the primary. Both had the same effect. See Governor Ned Lamont, “Executive Order No. 7QQ: Protection of Public Health and Safety During COVID-19 Pandemic and Response – Safe Voting During Statewide Primary,” May 20, 2020, https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7QQ.pdf; State of Delaware Executive Department, “Sixth Modification of The Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat,” March 24, 2020, https://governor.delaware.gov/wp-content/uploads/sites/24/2020/03/Sixth-Modification-to-State-of-Emergency-03242020.pdf; Office of Kentucky Governor Andy Beshear, “State of Emergency Relating to Kentucky Elections,” April 24, 2020, https://governor.ky.gov/attachments/20200424_Executive-Order_2020–296_SOE-Relating-to-Elections.pdf; Office of New York Governor Andrew M. Cuomo, “Continuing Temporary Suspension And Modification Of Laws Relating To The Disaster Emergency,” New York Executive Order 202.2, March 14, 2020, https://www.governor.ny.gov/news/no-2022-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. By state election officials (AL, IN, NH, VA and WV): Office of Alabama Secretary of State, “Secretary Merrill Issues Update on March 31 Runoff Election,” March 31, 2020, https://www.sos.alabama.gov/newsroom/secretary-merrill-issues-update-march-31-runoff-election; Indiana Election Commission, “Indiana Election Commission Order 2020–37,” March 25, 2020, https://www.in.gov/sos/elections/files/Indiana%20Election%20Commission%20Order%202020–37.pdf; New Hampshire Secretary of State William Gardner and Attorney General Gordon MacDonald, “Elections Operations During the State of Emergency,” April 10, 2020, https://www.nhpr.org/sites/nhpr/files/202004/covid-19_elections_guidance.pdf; Virginia initially expanded its excuse requirement to encompass Covid-19 concerns for the May primary elections prior to the enactment of permanent legislation eliminating the excuse requirement altogether. See NBC12 Newsroom, “Today is the last day to register to vote in Virginia’s June primary,” May 26, 2020, https://www.nbc12.com/2020/05/26/today-is-last-day-register-vote-virginias-june-primary/; Office of the Secretary of State Warner, “Secretary Warner Encourages West Virginians to Vote Early and Absentee in the May 12 Primary Election,” March 19, 2020, https://sos.wv.gov/news/Pages/03–19–2020-A.aspx. Legislatively (CT, MA, MO, and SC): Governor Ned Lamont, “Executive Order No. 7QQ: Protection of Public Health and Safety During COVID-19 Pandemic and Response – Safe Voting During Statewide Primary,” May 20, 2020, https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7QQ.pdf; An Act Relative to Voting Options in Response to COVID-19, MA. H. 4820 (2020), http://cdn.cnn.com/cnn/2020/images/07/07/h4820.signed.pdf; Modifies provisions relation to elections, MO SB631 (2020), 100th General Assembly of the State of Missouri, https://legiscan.com/MO/text/SB631/2020; Absentee ballot provisions for June 2020 primary, SC S. 635 (2020), 123rd General Assembly of South Carolina, https://legiscan.com/SC/bill/S0635/2019.

Looking ahead, 11 of the 16 “excuse” states thus far have expanded their rules to let all voters cast an absentee or mail ballot in November. footnote8_39pzpaq 8 AL, AR, CT, DE, KY, MA, MO, NH, NY, SC, and WV.  Six did so legislatively, while Arkansas did so by gubernatorial action. footnote9_b1c6lul 9 CT, DE, MA, MO, NY, and SC.  The remaining four states did so through action by state election officials. footnote10_fabltao 10 AL, KY, NH, and WV.  As of publication, five states still require an excuse for most voters this November. footnote11_sww02ex 11 IN, LA, MS, TN, and TX.

In total, there are 11 currently pending lawsuits challenging the excuse requirement across all five states that still require an excuse for absentee voting in November. footnote12_25weprw 12 See Tully v. Okeson, No. 1:20-cv-1271 (S.D. Ind.), No. 20–2605 (7th Cir.); Harding v. Edwards, No. 3:20-cv-495 (M.D. La.); O’Neill v. Hosemann, No. 3:18-cv-815 (S.D. Miss.); Oppenheim v. Watson, No. 25CH1:20-cv-961 (Chancery Ct. Hinds Cnty.); Parham v. Watson, No. 3:20-cv-572 (N.D. Miss.); Demster v. Hargett, No. 20–0435-III (Tenn. Chancery Ct., Davidson Cnty.), No. M2020–831-SC-RDM-CV (Sup. Ct. Tenn.); Lay v. Goins, No. 20–0453-III (Ch. Ct. of Tenn., 20th Jud. Dist., Davidson Cnty.); No. M2020–00832-SC-RDM-CV (Sup. Ct. Tenn.); Memphis A. Phillip Randolph Institute v. Hargett, No. 3:20-cv-374 (M.D. Tenn.); Gloria v. Hughs, No. 5:20-cv-00527 (W.D. Tex.); Lewis v. Hughs, No. 5:20-cv-577 (W.D. Tex.); No. 20–50654 (5th Cir.); Texas Democratic Party v. Abbott, No. 5:20-cv-438-FB (W.D. Tex.); 2020–50407 (5th Cir.); No. 19A1055 (S. Ct.).  Ten of those 11 suits were filed in response to the Covid-19 pandemic. Additionally, a recently filed lawsuit challenging the witness requirement in Puerto Rico has resulted in a court order allowing all voters aged 60 and over to vote early absentee without providing an excuse. footnote13_bx8k84y 13 Ocasio v. Comisión Estatal de Elecciones, No. 3:20-cv-1432 (D.P.R.).  Lawsuits challenging the excuse requirement are also pending in Connecticut, Kentucky, Missouri, and South Carolina, notwithstanding that those states have eliminated the requirement for November. footnote14_2ngt8bw 14 Connecticut State Conference of the NAACP v. Merrill, No. 3:20-cv-909 (D. Conn.); Sterne v. Adams, No. 20-CI-538 (Ky. Cir. Ct. Franklin Cnty.); Missouri State Conference of the NAACP v. State of Missouri, No. 20AC-CC00169 (Mo. Cir. Ct., Cole Cnty.); No. SC98536 (Mo. Sup. Ct.); Middleton v. Andino, No. 3:20-cv-1730 (D.S.C.); Thomas v. Andino, No. 3:20-cv-1552 (D.S.C.).  Meanwhile, in Delaware, the Republican State Committee has challenged the state Department of Elections’ decision to waive the excuse requirement for November. footnote15_59a23cl 15 Republican State Committee of Delaware v. State of Delaware, C.A. No. 20–685-SG (Del. Ct. of Chancery).

In Indiana, where the excuse requirement was suspended only for the state’s primary election, a federal court recently denied a preliminary request to block enforcement of the excuse requirement for the November general election. An appeal, however, has been filed. footnote16_0w0lawo 16 Tully v. Okeson, No. 1:20-cv-1271 (S.D. Ind.), No. 20–2605 (7th Cir.).  By contrast, Tennessee was preliminarily ordered by a state court to permit any eligible voter to vote absentee while the pandemic continues, but that order was overturned by the state supreme court, which held that absentee voting would be expanded only to voters who have a special vulnerability to Covid-19, or who care for someone with such a vulnerability. footnote17_mffm7w8 17 Demster v. Hargett, No. 20–0435-I(III) (Tenn. Chancery Ct., Davidson Cnty.); Fisher v. Hargett, No. M2020–831-SC-RDM-CV (Sup. Ct. Tenn.); and Lay v. Goins, No. 20–0453-IV(III) (Tenn. Chancery Ct., Davidson County), No. M2020–832-SC-RDM-CV (Sup. Ct. Tenn.). For the preliminary injunction in , see https://www.aclu.org/sites/default/files/field_document/order_-_lay_v_goins.pdf, and for the order vacating the injunction, see https://www.tncourts.gov/sites/default/files/fisher.earlee._and_lay.benjamin.opn_.pdf.  Similarly, on the eve of Texas’s primary runoff election, a federal appeals court blocked a lower court’s ruling that would have allowed all voters — not just those over 65 — to access absentee voting. The Supreme Court declined to lift the Fifth Circuit’s ruling. The case remains pending in the lower court. footnote18_j3zyccu 18 Texas Democratic Party v. Abbott, No. 5:20-cv-438 (W.D. Tex.), No. 2020–50407 (5th Cir.), No. 19A1055 (S. Ct.).  In Mississippi, a state court recently ordered the state to waive the excuse requirement this year for voters with preexisting conditions “that cause COVID-19 to present a greater risk of severe illness or death,” or whose dependents have such conditions, as well as those whose physicians recommend against attending public gatherings.

Litigation attempts by the Trump campaign and Republican committees to block state election officials from allowing everyone to vote absentee have so far been uniformly unsuccessful. Only one such lawsuit remains pending in relation to the November general election. footnote19_16yxozr 19 Republican State Committee of Delaware v. State of Delaware, C.A. No. 20–685-SG (Del. Ct. of Chancery).

Ordinarily, only the five states that conduct elections primarily by mail affirmatively mail ballots to all registered voters without requiring them to take additional steps to obtain a ballot. Prior to the pandemic, six additional states gave voters the option to sign up as permanent absentee voters in order to automatically receive mail ballots in all elections. footnote1_lg0aul0 1 Arizona, California, D.C., Minnesota, Montana, New Jersey; See National Conference of State Legislatures, “Table 3: States with Permanent Absentee Voting for All Voters, Voters With Permanent Disabilities, and/or Senior Voters,” Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, updated August 2020, https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.  Most states still require voters to make a formal request for an absentee ballot. footnote2_l5bk8ak 2 For state-by-state information on how and when to apply for a mail ballot, see National Vote at Home Institute, “Applying for a Mailed-out Ballot – A State-by-State Guide,” July 2019, updated June 2020, http://voteathome.wpengine.com/wp-content/uploads/2020/07/NVAHI-Guide-to-When_How-to-Apply-2020.pdf.  This year, however, many of those states took significant steps to make it easier for voters to obtain absentee ballots. These steps benefited both voters, for whom it would be difficult to obtain absentee ballot request forms while sheltering at home, and election administrators, by reducing paperwork and the administrative steps to administer absentee voting.

Notwithstanding the benefits, the Trump campaign, the RNC, and a few conservative groups have opposed efforts to facilitate voters’ receipt of absentee ballots. Indeed, 18 out of 35 of the lawsuits they have filed in 2020 seek to prevent states or local election officials from making it easier for voters to obtain absentee ballots. (Note that the vast majority of pending election-related lawsuits were brought on behalf of voters to expand access to mail ballots and other voting methods.) footnote3_3zx4mfl 3 Of the 167 voting rights cases filed in relation to the Covid-19 pandemic as of September 15, 2020, 128 take what the Brennan Center considers an “expansive” or “protective” posture, whereas a mere 34 seek restrictive relief. The remaining seven cases fall into neither category.  

a. Affirmatively Mailing Ballot Applications or Ballots to Voters

The most common step to ensure absentee voting with minimal administrative hassle is for election officials to send absentee ballots or ballot request forms to most or all registered voters. footnote4_iuzbpuf 4 Most states that have opted to automatically mail absentee applications or ballots have limited their distribution to active registered voters, while a pronounced minority have sent applications to both active and inactive voters.  During the primaries and runoffs this year, 28 states took such action. footnote5_n67anjk 5 AK, AZ, CA, CO, CT, DE, GA, HI, IA, ID, KS, MA, MD, MI, ND, NE, NJ, NM, NV, NY, OR, RI, SD, UT, VT, WA, WV, and WY. See An Act To Amend Title 15 of the Delaware Code Relating To Voting By Mail For The 2020 Non-Presidential Primary, General, and Special Elections, DE H.B. 346, 150th General Assembly (2020), https://legiscan.com/DE/text/HB346/2019; Office of the Georgia Secretary of State, “Raffensperger Takes Unprecedented Steps to Protect Safety and Voter Integrity in Georgia,” https://sos.ga.gov/index.php/elections/raffensperger_takes_unprecedented_steps_to_protect_safety_and_voter_integrity_in_georgia; Office of the Iowa Secretary of State, “Secretary Pate to Mail Absentee Ballot Request Form to Every Registered Voter,” March 31, 2020, https://sos.iowa.gov/news/2020_03_31.html; Office of the Idaho Secretary of State, “Secretary Lawerence Denney Announces May Primary Changes,” April 1, 2020, https://sos.idaho.gov/PressRelease/2020/20200401_AbsenteeElection.pdf; Michigan Secretary of State’s Office, “Benson: All Voters Receiving Applications to Vote By Mail,” May 19, 2020, https://content.govdelivery.com/accounts/MISOS/bulletins/28c53d3; North Dakota Governor Exec. Order No. 2020–13 (March 26, 2020), https://www.governor.nd.gov/sites/www/files/documents/executive-orders/Executive%20Order%202020–13%20Elections.pdf; Office of the Rhode Island Secretary of State, “Secretary Gorbea Announces New Deadlines for Rhode Island Presidential Preference Primary,” March 30, 2020, https://www.ri.gov/press/view/38042; Office of the South Dakota Secretary of State, “Secretary of State to Distribute Absentee Ballot Applications to all South Dakota Registered Voters,” April 10, 2020, https://sdsos.gov/elections-voting/assets/AbsenteeBallotRequestApplicationsPressRelease.pdf; Office of the West Virginia Secretary of State, “Mail-In Absentee Ballot ‘Application’ to be Sent to Every Registered Voter in WV,” March 26, 2020, https://sos.wv.gov/news/Pages/03–26–2020-A.aspx; and COVID-19 Response Supplemental Emergency Amendment Act of 2020, DC Council B23–0733, 23rd Council (2020), https://legiscan.com/DC/text/B23–0733/id/2178231. Office of the Connecticut Secretary of State, “A Letter From the Secretary of State Denise Merrill: Our Plan for the 2020 Elections,” May 2020, https://portal.ct.gov/-/media/SOTS/ElectionServices/2020-Voting-Plan-FINAL-DRAFT-May-2–715-PM.pdf; An Act to Amend Title 15 of the Delaware Code Relating to Voting By Mail for the 2020 Non-Presidential Primary, General, and Special Elections, DE H.B. 346, 150th General Assembly (2020), https://legiscan.com/DE/text/HB346/2019; An Act Relative to Voting Options in Response to COVID-19, MA H. Res. 4820, 191st General Court (2020), http://cdn.cnn.com/cnn/2020/images/07/07/h4820.signed.pdf; and Vermont Secretary of State’s Office (@VermontSOS), “Postcards with return postage paid early ballot request forms have been sent to all registered #VT voters, but you don‘t need the card to request your ballot! Visit mvp.vermont.gov to make sure your voter info is up to date and to request your early ballot,” Twitter, July 7, 2020, 4:30 p.m., https://twitter.com/VermontSOS/status/1280600031465275394?ref_src=twsrc%5Etfw%7Ctwcamp%5Eembeddedtimeline%7Ctwterm%5Eprofile%3AVermontSOS&ref_url=https%3A%2F%2Fsos.vermont.gov%2Fsecretary-s-desk%2Fcommentary%2F.

Of those 28 states, at least 9 sent actual mail ballots to all active registered voters during at least one of their primaries. footnote6_gd39dex 6 ID, MD, NV, NJ, plus the 5 original “vote-at-home” states. See Office of the Idaho Secretary of State, “Secretary Lawerence Denney Announces May Primary Changes,” April 1, 2020, https://sos.idaho.gov/PressRelease/2020/20200401_AbsenteeElection.pdf; “Maryland Governor Proclamation,” May 6, 2020, https://governor.maryland.gov/wp-content/uploads/2020/05/3rd-Renewal-of-State-of-Emergency-5.6.20.pdf; Nevada Secretary of State’s Office, “Secretary Cegavske Announces Plan to Conduct the June 9, 2020 Primary Election by All Mail,” March 24, 2020, https://www.nvsos.gov/sos/Home/Components/News/News/2823/23; and New Jersey Governor Phil Murphy, “New Jersey Governor Exec. Order No. 144,” May 15, 2020, http://d31hzlhk6di2h5.cloudfront.net/20200515/c9/8c/ee/a3/8343f25b8115fa4521b8e20b/EO-144.pdf.  New Jersey also sent ballot applications to inactive and unaffiliated voters. footnote7_g4i9xfj 7 “New Jersey Governor Exec. Order No. 144,” May 15, 2020, http://d31hzlhk6di2h5.cloudfront.net/20200515/c9/8c/ee/a3/8343f25b8115fa4521b8e20b/EO-144.pdf.  Nevada’s most populous county, Clark County, sent ballot applications to inactive voters as well. footnote8_x42n15c 8 Elise Viebeck, “Mailing of Ballots to All Voters in Las Vegas Area Puts Sharp Focus on Election Safeguards,” The Washington Post, May 29, 2020, https://www.washingtonpost.com/politics/mailing-of-ballots-to-all-voters-in-las-vegas-area-puts-sharp-focus-on-election-safeguards/2020/05/28/912c099a-9f63–11ea-b5c9–570a91917d8d_story.html.

In Washington, DC, and the remaining 21 states that sent neither ballots nor applications for the primaries, voters had to go through the extra step of obtaining or accessing an absentee ballot request form. footnote9_xug0uj8 9 AL, AR, FL, IL, IN, KY, LA, ME, MN, MO, MS, NC, NH, OH, OK, PA, SC, TN, TX, VA, and WI.  In a few of those states, including Ohio and Pennsylvania, election administrators proactively sent voters postcards with instructions on how to apply for an absentee ballot but still required voters to go through a two-step process to obtain or access those ballots. footnote10_kthkezz 10 Ohio Secretary of State, “LaRose Shares Design of The Vote-By-Mail Postcard Which Will Soon Arrive in Mailboxes,” April 2, 2020, https://www.sos.state.oh.us/media-center/press-releases/2020/2020–04–02/; and John Finnerty, “Pennsylvania Pushes Mail-In Voting for June Primary,” The Meadville Tribune, April 29, 2020, https://www.meadvilletribune.com/coronavirus/pennsylvania-pushes-mail-in-voting-for-june-primary/article_02c442db-685e-559d-8c38-a9075d4443f9.html.

A number of states that took affirmative steps to distribute absentee ballots or ballot applications for the primaries did so via temporary orders or legislation that applied only to the primaries. As it has become increasingly clear that the pandemic will continue into and through the fall, most of the states that had changed their procedures for the primaries have taken similar steps to make it easier to obtain absentee ballots in November. A handful of other jurisdictions that did not modify ballot or application distribution policies in time for their primaries, such as Washington, DC, Illinois, and Ohio, have managed to do so for November. On the flipside, some states, such as Georgia, that mailed ballot applications for the primaries have announced that a lack of funds will preclude them from doing the same for the November election. Several other states have similarly changed course by not mailing ballot applications for the general election. footnote11_qqi2d1z 11 Those include AK, GA, KS, ND, NM, SD, and WV.

So far, at least 22 states plus Washington, DC, have confirmed that they will send either mail ballots or ballot request forms to most or all registered voters for November. footnote12_ay3491k 12 AZ, CA, CO, CT, DC, DE, HI, IA, IL, MA, MD, MI, NE, NJ, NV, OH, OR, RI, UT, VT, WA, WI, and WY.  Montana and New Mexico have passed legislation so that county clerks may send such forms to voters but are not required to. Alaska will send applications to registered voters aged 65 and older, but a lawsuit is pending in state court seeking to compel the state to expand the effort to include all active registered voters, regardless of age. footnote13_whjlpoy 13 Disability Law Center of Alaska v. Meyer, 3AN-20–7060CI (Alaska Sup. Ct. 3d Dist.).  Additionally, local election authorities in several other states — such as Dekalb County, Georgia; Harris County; Texas; and Douglas, Johnson and Sedgwick counties in Kansas — have taken the initiative to send out ballot applications on their own, with or without their state’s blessing. In Harris County, Texas, the county clerk’s announcement that the county would be mailing out ballot applications to all registered voters was almost immediately countered with a lawsuit and a temporary stay from the Texas Supreme Court. A recent lower court order is allowing the mailings to go forward, but that order has now also been temporarily stayed by the Texas Supreme Court. footnote14_cgzt35d 14 State of Texas v. Hollins, 2020–53283 (Dist. Ct. Harris Cnty., Tex.), 20–671 (Sup. Ct. Tex.); In Re the State of Texas, 14–20–00627-CV (14th Ct. App. Dist.); In Re the State of Texas, 20–0715 (Sup. Ct. Tex). For the order denying the request for a preliminary injunction, see https://static.texastribune.org/media/files/ecd9ac61ccc62057d031d26f16b50b11/HarrisCountyVBMAppsPreliminaryInjunctionDenial.pdf?_ga=2.81874581.2007126306.1600029214–149206638.1596121771. For the order staying the denial of the preliminary injunction, see https://www.txcourts.gov/supreme/orders-opinions/2020/september/september-15–2020/.

Overall, between March 11 and September 1, 35 lawsuits were filed across seventeen states  seeking to compel states to affirmatively mail ballots or ballot applications to registered voters, seeking to block states or local election officials from doing so, or, in one case, seeking an order permitting electronic transmission of ballot applications. footnote15_glerdfp 15 AK, AZ, CA, FL, GA, IL, MA, MI, NJ, NM, NV, PA, TN, TX, and WI; Ohio Democratic Party v. LaRose, 20CV4997 (Ohio Ct. Common Pleas, Franklin Cnty.).  Results have been mixed. In Arizona, the state successfully sued to prohibit the Maricopa County Recorder and Elections Department from proactively mailing absentee ballot applications to all eligible voters for the Democratic presidential preference primary. Lawsuits to compel automatic mailing of ballots or applications remain pending or subject to appeal in 4 of the 28 states that have not already implemented or announced plans to do so this November. footnote16_xifyn35 16 AK, FL, PA, and TN; See Disability Law Center of Alaska v. Meyer, 3AN-20–7060CI (Alaska Sup. Ct. 3d Dist.); Grimes v. Florida Department of State, 2020-CA-908 (Fla. Cir. Ct., Leon Cnty.); NAACP Pennsylvania State Conference v. Boockvar, 364 MD 2020 (Commonwealth Ct., Pa.); and Demster v. Hargett, 20–0435III (Tenn. Chancery Ct., Davidson Cnty.).

Meanwhile, in Michigan and California, there have been at least seven attempts to persuade courts to block the states from mailing ballots or applications to all active registered voters, though all suits have been unsuccessful. footnote17_gmnqx6c 17 Gallagher v. Newsom, No. CVCS20–912 (Cal. Super. Ct., Sutter Cnty.); Issa v. Newsom, No. 2:20-cv-1044 (E.D. Ca.); Republican National Committee v. Newsom, No. 2:20-cv-1055 )E.D. Ca.); Black v. Benson, No. 20–96-MZ (Mich. Ct. Claims); Cooper-Keel v. Benson, No. 20–91-MM (Mich. Ct. Claims); Davis v. Benson, No. 20–9-MM (Mich. Ct. Claims); Reed-Pratt v. Winfrey, 3:20-cv-12129 (E.D. Mich.).  The dismissal of one of the Michigan cases was recently affirmed on appeal. footnote18_f1jhot5 18 Davis v. Benson, No. 354622 (Mich. Ct. App.). A subsequent appeal remains possible but would be unlikely to succeed.  In total, ten suits in eight states seeking to block affirmative mailing of ballots or applications remain pending or subject to appeal. footnote19_tjwm4cq 19 CA, IL, MI, MT, NJ, NV, TX, and VT; Gallagher v. Newsom, No. CVCS20–912 (Cal. Super. Ct., Sutter Cnty.); Cook County Republican Party v. Pritzker, No. 1:20-cv-4676 (N.D. Ill.); Davis v. Benson, No. 354622 (Mich. Ct. App.); Reed-Pratt v. Winfrey, 3:20-cv-12129 (E.D. Mich.); Donald J. Trump for President, Inc., v. Bullock, No. 6:20-cv-66 (D. Mont.); Donald J. Trump for President, Inc., v. Cegavske, No. 2:20-cv-1445 (D. Nev.); Donald J. Trump for President, Inc. v. Murphy, No. 3:20-cv-10753 (D.N.J.); In Re Hotze, No. 20–0671 (Sup. Ct. Tex.); and State of Texas v. Hollins, No. 2020–52383 (Dist. Ct. Harris Cnty., Texas), and No. 14–20–00627-CV (Ct. of App. 14th Dist., Tex.); Martel v. Condos, No. 5:20-cv-313 (D. Vt.).

b. Online Absentee Ballot Request Systems

Thus far, 24 states have implemented jurisdiction-wide online absentee ballot application tools. footnote20_fyn7g7s 20 AK, AZ, DC, DE, FL, GA, ID, IL, IN, KY, LA, MA, MD, ME, MI, MN, NC, ND, NM, NY, OK, PA, VT, WI and WV.  This does not include any number of localities that have implemented their own request tools. The remaining states either do not permit mail ballot requests to be made online or simply have failed to provide a statewide tool, though some of those states automatically mail ballots or ballot request forms to most or all registered voters, thus obviating the need for an online tool. footnote21_3zlqn7f 21 Brennan Center for Justice, Preparing Your State for an Election Under Pandemic Conditions.  In the states that do not automatically mail ballots or request forms or provide an online request tool, voters are required to get a hard copy ballot application in the mail or print one out, and then must deliver that application to election administrators by mail, in person, or, in some cases, via fax or email. footnote22_qz7fdk1 22 AR (email and fax), MO (email and fax), NH (fax), OH (email), TN (email and fax), and TX (email and fax).

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. footnote1_nlj1ch2 1 AZ, CA, DE, HI, IA, IN, MN, MO, NM, NV, OR, WA, WI and WV.  Two additional states — Virginia and Massachusetts — amended their laws this year to provide prepaid postage for all absentee ballots going forward. footnote2_7pllgb1 2 An Act Relative To Voting Options in Response to COVID-19, MA H. Res. 4820, 191st General Court (2020), https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115; and Absentee Voting and Postage Prepaid on Return Envelope, VA H.B 220, The General Assembly of Virginia (2020), https://legiscan.com/VA/text/HB220/2020.  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. footnote3_f8b8o58 3 Make Technical and Corrective Changes to Tax Law, OH S. Res. 197, 133rd Leg. (2020), https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-197.  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. footnote4_7nru9os 4 “Gov. Wolf Encourages Voters to Apply for a Mail-in Ballot,” April 22, 2020, https://www.governor.pa.gov/newsroom/gov-wolf-encourages-voters-to-apply-for-a-mail-in-ballot/; Ryan Deto, “Allegheny County is Sending All County Voters Mail-in Ballot Applications With Prepaid Postage,” Pittsburgh City Paper, April 17, 2020, https://www.pghcitypaper.com/pittsburgh/allegheny-county-is-sending-all-county-voters-mail-in-ballot-applications-with-prepaid-postage/Content?oid=17142631; Claire Sasko, “Pennsylvania’s Big Mail-In Primary Could Get Messy. What You Need to Know to Make Your Vote Count,” Philadelphia, May 27, 2020, https://www.phillymag.com/news/2020/05/27/mail-in-pennsylvania-primary/.  For Michigan’s May 5 local elections, voters were sent prepaid return envelopes for ballots and ballot applications. footnote5_3m8yhag 5 Gus Burns, “How Michigan’s May 5 Election Will Look Amid The Coronavirus Pandemic,” MLive, May 1, 2020, https://www.mlive.com/public-interest/2020/05/how-michigans-may-5-election-will-look-amid-the-coronavirus-pandemic.html.  In Maryland, the state board of elections provided prepaid postage for mail ballots for the June election, with the approval of the governor. footnote6_cy8p825 6 See Maryland State Board of Elections, “Board Urges Marylanders to Vote Safe, Vote by Mail,“ April 10, 2020, https://elections.maryland.gov/press_room/documents/SBE%20Statement_Election%20Plan%2004102020.pdf; Maryland State Board of Elections, “Maryland State Board of Elections Delivers Comprehensive Plan for June 2nd Presidential Primary,“ April 2, 2020, https://elections.maryland.gov/press_room/documents/SBE%20Statement-June%202%202020%20Comprehensive%20Plan.pdf.  In total, 23 states and Washington, DC, provided prepaid postage for absentee ballot applications in the primaries. footnote7_by6hyqt 7 AZ, CA, CT, DC, DE, HI, IA, IN, KY, MA, MD, MI, MN, MO, NJ, NM, NV, NY, OH, OR, VA, WA, WI and WV. The District of Columbia passed a bill providing for prepaid postage for ballot applications for the June primary, see “Coronavirus Support Congressional Review Emergency Amendment Act of 2020,” D.C. Act 23–328, June 9, 2020, The Council of the District of Columbia, https://1.next.westlaw.com/Link/Document/Blob/Ibbda2dc09c0c11eaaa5a9216aec5b62b.pdf?targetType=pending-pdf&originationContext=document&transitionType=DocumentImage&uniqueId=3544a41d-60ac-444b-9b33–97fdedeaeaab&contextData=(sc.Search); New York similarly ordered that that ballot applications for the June primary arrive with prepaid postage, see New York Governor Exec. Order No. 202.23, April 24, 2020, https://www.governor.ny.gov/news/no-20223-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency; Michigan provided prepaid postage for ballot applications for the May primary, but has not announced whether it will do so for August and November, see, e.g., Gus Burns, “Michigan Sending Absentee Ballot Applications to all May 5 Election Voters Because of Coronavirus Outbreak,” MLive, March 24, 2020, https://www.mlive.com/public-interest/2020/03/michigan-sending-absentee-ballots-to-all-voters-for-may-5-election-because-of-coronavirus-outbreak.html; and Iowa provided prepaid postage for ballot request forms sent to voters for the June primary, see Office of the Iowa Secretary of State, “Secretary Pate to Mail Absentee Ballot Request Form to Every Registered Voter,” March 31, 2020, https://sos.iowa.gov/news/2020_03_31.html.

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. footnote8_3gzla3t 8 AZ, CA, CT, DC, DE, HI, IA, IN, KY, MA, MD, MN, MO, NJ, NM, NV, OR, PA, SC, VA, VT, WA, WI, and WV.  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. footnote9_i8of56r 9 Middleton v. Andino, No. 3:20-cv-1730-JMC, (2020), https://aboutblaw.com/RVL..  Nationally, there are at least 10 lawsuits pending in nine states challenging the requirement that voters pay for postage to mail ballots. footnote10_qg531ko 10 Florida, see Grimes v. Florida Department of State, 2020-CA-908 (Fla. Cir. Ct., Leon Cnty.); Georgia, see Black Voters Matter Fund v. Raffensperger, No. 1:20-cv-1489 (N.D. Ga.); New Georgia Project v. Raffensperger, No. 1:20-cv-1986 (N.D. Ga.); Maine, see Alliance for Retired Americans v. Dunlap, (Kennebec Superior Ct.); Michigan, see Michigan Alliance for Retired Americans v. Benson, No. 2020–000108-MM (Mich. Ct. Claims); New Hampshire, see American Federation of Teachers v. Gardner, 216–2020-CV-570 (N.H. Super. Ct., Hillsborough Cnty.); North Carolina, see Stringer v. North Carolina, (N.C. Super. Ct., Wake Cnty.); Oklahoma, see DCCC v. Ziriax, No. 4:20-cv-211 (N.D. Okla.); Pennsylvania, see Crossey v. Boockvar, No. 108-MM-2020; (S. Ct. Pa.); 266-MD-2020 (Commonwealth Ct. of Pa.)); and Texas, see Lewis v. Hughs, 5:20-cv-577 (W.D. Tex.).

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. footnote11_ns1kid0 11 Elizabeth Howard and Derek Tisler, Ensuring Safe Elections, Brennan Center for Justice, April 30, 2020, https://www.brennancenter.org/our-work/research-reports/ensuring-safe-elections.  

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. footnote12_rjbpzkt 12 AK, AZ, CA, CO, CT, FL, GA, HI, ID, IA, KS, KY, ME, MD, MI, MN, NE, NJ, ND, NY, OH, OR, PA, RI, SC, SD, UT, VA, WA, WI and WY.  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. footnote13_nafs270 13 A. Philip Randolph Institute of Ohio v. LaRose, No. 1:20-cv-1908 (N.D. Ohio); Ohio Democratic Party v. LaRose, No. 20 CV 5634 (Ohio Ct. Common Pleas, Franklin Cnty.). The court in the latter case recently issued an order declaring that Ohio law does not prohibit the use of multiple drop boxes per county, and that such drop boxes may be located elsewhere than immediately outside the county election offices. See https://www.courthousenews.com/wp-content/uploads/2020/09/ohiodropboxes.pdf.  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. footnote14_xmh4brg 14 American Federation of Teachers v. Gardner, No. 216–2020-CV-570 (N.H. Super. Ct. Hillsborough Cnty.).

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. footnote15_n2merpz 15 See, e.g., Donald J. Trump for President v. Boockvar, Brennan Center for Justice, updated September 9, 2020, https://www.brennancenter.org/our-work/court-cases/donald-j-trump-president-v-boockvar.  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. footnote16_kb45sko 16 AK, AL, LA, MN, MO, MS, NC, OK, RI, SC, VA, and WI.  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. footnote17_hydd9nm 17 League of Women Voters of Oklahoma v. Ziriax, O-118765 (Okla. S. Ct.); Oklahoma enacted a law, SB 210, permitting voters to sign the absentee ballot affidavit and attach a photo copy of an ID in lieu of notarization, if a state of emergency related to Covid-19 is in effect or is declared within 45 days prior to a scheduled election.  Meanwhile, North Carolina reduced its requirement from two witness signatures to one for the 2020 elections. footnote18_oqfxb0e 18 An Act Relating to Election Procedures, OH S.B. 210, (2020), http://webserver1.lsb.state.ok.us/cf_pdf/2019–20%20ENR/SB/SB210%20ENR.PDF; An Act to Make Various Changes to the Laws Related to Elections and to Appropriate Funds to the State Board of Elections in Response to the Coronavirus Pandemic, NC H.B. 1169, General Assembly of North Carolina, (2020), https://www.ncleg.gov/Sessions/2019/Bills/House/PDF/H1169v7.pdf.

The other four states suspended their witness requirements entirely, thanks to successful litigation. footnote19_q39lejr 19 MN, SC, VA, and RI.  Lawsuits in Minnesota, Rhode Island, and Virginia resulted in settlements pertaining to both primary and November 3 elections. footnote20_bx2z9jj 20 League of Women Voters of Minnesota Education Fund v. Simon, No. 0:20-cv-01205 (D. Minn.); NAACP of Minnesota v. Simon, 62-CV-20–3625 (Minn. Dist. Ct., Ramsey Cnty.). in Thomas v. Andino, No. 3:20-cv-01552 (D.S.C. May 25, 2020); Common Cause RI et. al v. Gorbea, No. 1:20-cv-00318-MSM-LDA, RI, (2020); League of Women Voters of Virginia v. Virginia State Bd. Of Elections, No. 6:20-CV-00024, 2020 WL 2158249, at *14 (W.D. Va. May 5, 2020).   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. footnote21_3ajsexn 21 Common Cause R.I. v. Gorbea, 2020 U.S. App. LEXIS 25062; see https://www.supremecourt.gov/orders/courtorders/081320zr_8mjp.pdf.  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. footnote22_iaaox38 22 Thomas v. Andino, No. 3:20-CV-01552, 2020 WL 2617329, at *30 (D.S.C. May 25, 2020); Middleton v. Andino, No. 3:20-cv-1730 (D.S.C.).  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. footnote23_jk691lz 23 Merrill, Alabama Secretary of State, et al., v People First of Alabama, et al., 591 U.S. ___ (2020), https://www.supremecourt.gov/orders/courtorders/070220zr_n7io.pdf.

Accordingly, witness and notary requirements will be enforced in only nine states this November, or possibly fewer still. footnote24_0s1rm96 24 AK, AL, LA, MO, MS, NC, OK, SC, and WI.  At least 16 lawsuits remain pending across eight of the nine states that have not entirely dispensed with these requirements. footnote25_1rkn5wa 25 AK, AL, MO, MS, NC, OK, SC, and WI.  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. footnote26_pl641pa 26 AL, AR, KY, ME, ND, NH, SD, and WI. An additional state, Oklahoma, allows a copy of a photo ID to be submitted with an absentee ballot in lieu of having the ballot envelope notarized.  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. footnote27_1bwgfxp 27 Holmes v. Moore, 18 CVS 15292 (Gen. Ct. Justice, Sup. Ct. Division, Wake Cnty.); COA19–762 (N.C. Ct. App.); North Carolina State Conference of the NAACP v. Cooper/Raymond, 1:18-cv-1034 (M.D.N.C.), 19–1091, 19–1094, 19–2273 & 20–1092 (4th Cir.); 2020 K.Y. S.B. 2.  In a prior Wisconsin suit, the state supreme court overturned an executive order allowing voters to obtain absentee ballots without providing photo ID. footnote28_sxseqer 28 Jefferson v. Dane County, No. 2020AP557-OA (Wis. S. Ct.); see https://www.wpr.org/sites/default/files/2020ap557-oa_3–31–20_order.pdf.

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. footnote29_7n5ii6j 29 AL, KY, ME, NC, NH, OK, TX, and WI.  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. footnote30_fn82yur 30 Alabama (League of Women Voters of Alabama v. Merrill, 03-cv-2020–900702.00 (Ala. Cir. Ct., Montgomery Cty.); People First of Alabama v. Merrill, 2:20-cv-619 (N.D. Ala); Kentucky (Collins v. Adams, No. 3:20-cv-375 (W.D. Ky.); Sterne v. Adams, No. 20-CI-538 (Ky. Cir. Ct. Franklin Cnty.)); Maine (Alliance for Retired Americans v. Dunlap, (Kennebec Superior Ct.)); North Carolina (Holmes v. Moore, 18 CVS 15292 (Gen. Ct. Justice, Sup. Ct. Division, Wake Cnty.), No. COA19–762 (N.C. Ct. App.)); Oklahoma (DCCC v. Ziriax, No. 4:20-cv-211 (N.D. Okla.)); Texas (Mi Familia Vota v. Abbott, 5:20-cv-830 (W.D. Tex.)); Wisconsin (One Wisconsin Institute, Inc. v. Nichol, 3:15-cv-324 (W.D. Wis.); One Wisconsin Institute, Inc. v. Thomsen, No. 16–3091 (7th Cir.)).

Since Covid-19 hit, states have modified their policies to allow counting of timely postmarked ballots that arrive after Election Day or those with correctable errors.

a. Notice and Opportunity to Correct Defects

In most states, before counting a ballot, election administrators compare the signature on the ballot envelope with the voter’s signature on file in the voter rolls. Missing signatures or signature mismatches are two of the principal reasons that ballots cast by eligible voters are not counted. This is particularly true because the election workers tasked with verifying voters’ signatures typically lack any training in handwriting analysis, causing untold numbers of valid ballots to be rejected due to faulty signature matching practices. Some states allow defects to be corrected but require that any such corrections be made by the close of the polls on Election Day, thus rendering the cure provisions illusory for many voters who do not receive notification of defects in sufficient time to meet the correction deadline. When states implement processes to notify voters of defects on their absentee ballot envelopes and offer them an opportunity to correct any errors after Election Day, more valid votes are counted.

Prior to Covid-19, 15 states provided notice and an opportunity for voters to cure signature mismatches or missing signatures after Election Day. footnote1_3qw6mi1 1 AZ, CA, CO, FL, GA, HI, IL, KS, NM, NV, OH, OR, RI, UT, and WA.  An additional state, Texas, had an optional procedure at the discretion of the county. footnote2_ckylrjr 2 Brennan Center for Justice, Preparing Your State Election.  As a result of successful litigation, two additional states — North Dakota and New Jersey — allowed voters to cure ballot defects during the primaries, and both states will continue to do so for the November election. Additionally, federal courts recently expanded the notice and cure requirements in two additional states. Arizona, which previously required notice and cure only for mismatched signatures, is now required to do so with respect to missing signatures this November and beyond. footnote3_92zzw2l 3 Arizona Democratic Party v. Hobbs, No. 2:20-cv-1143 (D. Ariz.).  In Texas, the court gave the state two options for the upcoming November election: either provide notice and cure opportunities for mismatched signatures or refrain from engaging in signature verification altogether. footnote4_tpbsf1d 4 Richardson v. Texas Secretary of State, No. 5:19-cv-963 (W.D. Tex.).  Both orders were appealed, and the cases remain pending.

In total, litigation seeking to compel states to provide notice and a cure opportunity remains pending in 14 states. footnote5_as40cwf 5 AZ, CA, GA, IN, ME, MS, NC, ND, NJ, NY, OH, PA, TN and TX.  Accordingly, unless the Texas or Arizona orders are overturned on appeal, voters in at least 21 states will be entitled to this important procedural safeguard in the November elections. footnote6_3mcxam6 6 AZ, CA, CO, FL, GA, HI, IL, KS, KY, NC, ND, NJ, NM, NV, OH, OR, RI, TX, UT, VA, and WA.  

b. Ballot Receipt Deadlines

Prior to March 11, 2020, only 12 states and Washington, DC, accepted mail ballots that were postmarked by Election Day but received afterward. footnote7_hyd88ug 7 AK, CA, DC, IL, KS, MD, NC, NJ, NV TX, VA, WA, and WV.  Six additional states accepted late-arriving ballots postmarked by election day in their primaries, although half of those states are not expected to allow late-arriving ballots in November. footnote8_udxjtkr 8 ID, KY, MN, NY, UT, and WI; ID, UT, and WI.  Kentucky modified its election day receipt deadline for the June 23 primary to permit ballots postmarked by Election Day to be counted if received by 6:00 p.m. on June 27. footnote9_tsx2gh2 9 See Ky. Rev. Stat. Ann. § 117.086 (a)(b) (setting the ordinary election day receipt deadline); Kentucky Secretary of State’s Office, Letter to Governor Beshear, April 23, 2020, https://elect.ky.gov/SiteAssets/Pages/default/SOS%20Letter.pdf.  Utah permitted ballots to be counted in its June primary if postmarked by election day. footnote10_cidp2dq 10 Vote.Utah.gov, “Learn about voting by mail," accessed July 27, 2020, https://voteinfo.utah.gov/learn-about-voting-by-mail-and-absentee-voting/; see Utah Code Ann. § 20A-3a-204(2)(a)(1) (ordinarily requiring a postmark before Election Day).  As a result of a court ruling, Wisconsin counted all ballots sent by its rescheduled primary election day and received within six days after election day. footnote11_bn7sqg5 11 Republican National Committee v. Democratic National Committee, 140 S. Ct. 1205 (2020).  And, as a result of litigation, Minnesota agreed not to enforce its election day receipt deadline for the August primary, and instead counted ballots postmarked on or before Election Day and received within two days of Election day. footnote12_s67ow5x 12 LaRose, Teresa Maples, Mary Sansom, Gary Severson, and Minnesota Alliance for Retired Americans v. Steve Simon, Minnesota Secretary of State, No. 62-CV-20–3149, (Minnesota 2nd District Court), https://www.democracydocket.com/wp-content/uploads/sites/41/2020/06/62-CV-20–3149-Stipulation-and-Partial-Consent-Decree-1.pdf.  In addition, Pennsylvania Gov. Tom Wolf extended the mail ballot receipt deadline in six counties by executive order. footnote13_qywgnca 13 Pennsylvania Governor Exec. Order No. 2020–02, (June 1, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/06/20200601-EO-Deadline-Extention.pdf.

At least three more states — Massachusetts, Mississippi, and Georgia — will accept late arriving yet ballots for the November election if postmarked by Election Day. Massachusetts and Mississippi’s policy changes came about via legislation, whereas Georgia’s was the result of a preliminary injunction issued in a federal lawsuit. footnote14_b9wtg70 14 New Georgia Project v. Raffensperger, No. 1:20-cv-1986 (N.D. Ga.).  Additionally, Arizona agreed to conduct a feasibility study on the implementation of a postmark deadline as a result of litigation. footnote15_j4b2yhi 15 See Voto Latino Foundation, Priorities USA, and Shelby Aguallo v. Katie Hobbs, Arizona Secretary of State, No. 2:19-CV-05685-DWL, (Arizona District Court), https://www.democracydocket.com/wp-content/uploads/sites/41/2020/06/AZ-Settlement-1.pdf.  Accordingly, thus far at least 18 states and Washington, DC, will accept late-arriving ballots this November. However, lawsuits challenging the Election Day receipt deadline are pending in 10 of the 32 states that still impose such a deadline. footnote16_79q2q40 16 AZ, IN, MI, MO, MT, NH, OK, PA, TX, and WI. See Yazzie v. Hobbs, No. 3:20-cv-8222 (D. Ariz.); Common Cause Indiana v. Lawson, 1:20-cv-2007 (S.D. Ind.); Michigan Alliance for Retired Americans v. Benson, No. 2020–000108-MM (Mich. Ct. Claims)); American Women v. State of Missouri, No. 20AC-CC00333 (Mo. Cir. Ct., Cole Cnty.); Driscoll v. Stapleton, No. DV 20–408 (Mont. Dist. Ct., Yellowstone Cnty.)); American Federation of Teachers v. Gardner, No. 216–2020-CV-570 (N.H. Super. Ct. Hillsborough Cnty.); DCCC v. Ziriax, No. 4:20-cv-211 (N.D. Okla.)); Pennsylvania (Crossey v. Boockvar, No. 108-MM-2020; (S. Ct. Pa.); 266-MD-2020 (Commonwealth Ct. of Pa.); NAACP Pennsylvania State Conference v. Boockvar, (Commonwealth Ct. Pa.); Pennsylvania Democratic Party v. Boockvar, No. 407 MD 2020 (Commonwealth Ct. Pa.); Texas (Lewis v. Hughs, No. 5:20-cv-577 (W.D. Tex.); DNC v. Bostelmann, No. 3:20-cv-249 (W.D. Wis.).