Skip Navigation
Resource

Mail Voting: What Has Changed in 2020

In response to Covid-19, most states have made it easier to vote by mail this year but gaps remain.

Published: September 17, 2020
Secure drop box
Chris Delmas

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_w2b872t 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_8zehb8i 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_gj1o9kj 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_0o0bz5p 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.

End Notes

1. Expanding Excuses for Absentee Voting

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_a8l8e5r 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_uz51f4d 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_ac8tjjw 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_tg8ngzk 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_hoyp­b6b 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_b332bh1 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_4fgmgox 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_1r2h­pal 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_1rzdzj3 9 CT, DE, MA, MO, NY, and SC.  The remain­ing four states did so through action by state elec­tion offi­cials. foot­note10_4g7g­s15 10 AL, KY, NH, and WV.  As of public­a­tion, five states still require an excuse for most voters this Novem­ber. foot­note11_6d48tx0 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_4464o07 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_8tnhprj 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_2uxw1z4 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_hs8fme8 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_09w290m 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_mdktzse 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_9qkdifw 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_kze9ipx 19 Repub­lican State Commit­tee of Delaware v. State of Delaware, C.A. No. 20–685-SG (Del. Ct. of Chan­cery).

End Notes

2. Making It Easier to Obtain Absentee Ballots

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_5p5e­f6r 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_x4lb­t5w 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_682d­lau 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_hkbunxr 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_1ncdk35 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_dg025xa 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_kqox9ui 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_agim­wua 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_lwjr3e5 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_tae8ujg 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_z3a30b0 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_yd27njg 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_mcm34kx 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_irkbyt8 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_o9tiehh 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_sfxixqm 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_d2ec1zf 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_39pneoy 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_spwzqyz 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_uu5t0na 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_e0sjczc 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_ny0nyc9 22 AR (email and fax), MO (email and fax), NH (fax), OH (email), TN (email and fax), and TX (email and fax).

End Notes

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. foot­note1_3ks1tzl 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_g3c0fha 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_6cheeba 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_edbme5y 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_0mews32 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_arflyja 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_emcmbs0 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_p29grgy 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_q1gs0gx 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_k4n2nbj 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_cojn­l4i 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_r0cb­po7 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_au604t3 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_6ki5w4j 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_itsc0m3 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_m23k­p6j 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_rc83yzu 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_t5e701p 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_usfk­p2u 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_mzt5pgt 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_k4o6b05 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_lkdqb5p 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_zm76ts8 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_5wpkmkf 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_8amkz83 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_qstww3k 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_4dgk­wos 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_n65ntdh 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_dopdp8y 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_5m2×6p3 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.)).

End Notes

4. Fair Counting Rules

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_q4ssuco 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_ihnpodw 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_mqjtyf4 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_4z3rlq5 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_feqb­kn5 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_mje7t9t 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_1uepitp 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_81mg9wj 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_2srw2pi 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_uhfj5wy 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_a8d1m2p 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_w9k25y8 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_mwf5lmo 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_t3zetii 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_ton1t95 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_xfq5jj9 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.).

End Notes

Acknowledgements

The authors thank Mark Haidar for his signi­fic­ant research assist­ance.