Mail Ballot Receipt Deadlines
Eighteen states and D.C. will count mail ballots that are timely sent (depending on the state, this may be on or before election day) but arrive in the days following election day. Those jurisdictions are: AK, CA, DC, IL, KS, KY, MA, MD, MN, MS, NC, NJ, NV, NY, PA, TX, VA, WA & WV.footnote1_OmJ16Xcv4iWJNQ6Ub3ges9X3XAQ-9q6cn—RYRTxXU_qKUnQsaME3jB1See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions.
Six states which had previously required that mail ballots arrive by election day changed that policy for the November 2020 election. Those states are: KY, MA, MN, MS, NY & PA.
- One state did so by executive order (KY).footnote2_ipmeraN6RfHp1habQjqf7s7gJSigmy6omc6kmTJ2ooc_pRzL4WB8Lk8m2See Kentucky’s 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf.
- Three states did so by legislation (MA, MS & NY).footnote3_BGM16l5GM-Bfk7iGjbc3R0h6GDmQRchyT8ad1Zp2QE_a1ENK7W3tlyi3MA: See H.4820 https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115. MS: See H.B. 1521 http://billstatus.ls.state.ms.us/documents/2020/pdf/HB/1500–1599/HB1521SG.pdf. NY: See S.8799A/A.10808-A https://www.governor.ny.gov/news/governor-cuomo-signs-law-sweeping-election-reforms.
- Two states did so as a result of litigation (MN & PA).footnote4_Uj1xaj2lcVzJKABAis30I4DkY7AcVlMZ8kRUHq4BWh8_uY7EDPeOa7734MN: See Order https://www.documentcloud.org/documents/7012992-LaRose-Order-62-CV-20–3149-Order-on-July-31.html approving General Election Consent Decree in LaRose v. Simon, No. 62-CV-20–3149 (Minn. Dist. Ct., Ramsey Cnty.). PA: See order & opinion https://www.courtlistener.com/recap/gov.uscourts.pawd.268736/gov.uscourts.pawd.268736.446.1.pdf issued 9/17/20 in Pennsylvania Democratic Party v. Boockvar, No. 407 MD 2020 (Commonwealth Ct. Pa.); No. 133 MM 2020 (Pa. Sup. Ct.). However, the decisions in Pennsylvania and Minnesota may be subject to change given pending cert petitions in the U.S. Supreme Court regarding Pennsylvania and an October 29, 2020 order https://ecf.ca8.uscourts.gov/opndir/20/10/203139P.pdf from the Eighth Circuit finding that the Minnesota deadline extension was likely unconstitutional and ordering the segregation of late-arriving ballots.
There are lawsuits related to ballot receipt deadlines pending in 16 states. Those states are AZ, DE, GA, IN, MI, MN, MO, MS, MT, NC, NH, NJ, NV, OK, PA & TX.footnote5_LFbjOnfaAcmS2JGZx1J2TZvZF41heYp6qZS8GY5Jizg_rxSgkgVGgEJm5See Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020.
Ballot Signatures and Curing Defects
For the November election, only 23 states require election officials to notify voters and provide them with an opportunity to cure at least some mail ballot defects after election day.footnote6_OmJ16Xcv4iWJNQ6Ub3ges9X3XAQ-9q6cn—RYRTxXU_aeoNxSakzoBn6See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions. Those states are: AZ, CA, CO, FL, GA, HI, IL, IN, KS, KY, MS, NC, ND, NJ, NM, NV, NY, OH, OR, RI, UT, VA & WA.
Eight states have altered their notice-and-cure policies since the start of the pandemic. Those states are: IN,footnote7_C-VHhHxwVXAtFCssatgNgLueZlDpjPC7fTd40EK-UE0_tyWRO0v7kSvE7On August 20, 2020, a federal district court issued a permanent injunction, https://www.courtlistener.com/recap/gov.uscourts.insd.94815/gov.uscourts.insd.94815.82.0_1.pdf, precluding the Indiana Secretary of State and all Indiana election officials from rejecting “any mail-in absentee ballot on the basis of a signature mismatch absent adequate notice and cure procedures to the affected voter.” As of November 2, 2020, however, it is unclear whether statewide notice and cure guidelines have been issued to comply with the order. KY, MS, NC, ND, NJ, NY & VA.
- Two states did so via legislation (NJ, VA).footnote8_tOn-HI2PIviQD0MniM9A5RRWOQsquG-IRFt2fRS-7Y_qnJEWmKihsQb8NJ: See NJ A4276, https://www.billtrack50.com/BillDetail/1234587, enacted 8/28/20, which appears to have been passed (at least in part) in response to litigation, https://www.lwv.org/newsroom/press-releases/agreement-new-jersey-lawsuit-will-establish-fair-ballot-signature-match. VA: See Virginia Senate Bill 5120, https://lis.virginia.gov/cgi-bin/legp604.exe?202+ful+SB5120, approved by the Governor on 9/4/20.
- Five made the change as a result of litigation (IN, MS, NC, ND & NY).footnote9_4fV51t-nXgJytSxbGH9Ud-VJdXIMxs0sUKJunADGhYk_ppS25YhwHhE59For more information about these lawsuits, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. Note also that MS & NC changed their notice and cure procedures via executive action brought about by litigation.
- One did so by executive action (KY).footnote10_CVqx6KtHzv78wM8pjtpf2AA5HdJ90DhPbBTM9xOU0E_onkNDfMXNK8o10See August 14, 2020 letter, https://governor.ky.gov/attachments/SOS%20General%20Election%20Manner%20Recommendation.pdf, from Secretary of State Michael Adams to Governor Andy Beshear.
Early Voting
Forty-four states and the District of Columbia will provide all voters with the option to participate in some form of early voting in person during the November 2020 election.
At least seven states expanded their early voting hours or began offering early voting in person for the November 2020 election. Those states include AL, KY, MA, NC, NV, TX, & VA.footnote11_2mzEJBxiOZoArgHahUgdOdB-kHcBSu0qjbhYNhgLvPo_eDKMwp0H6KvF11AL: See Alabama Reporter, In-person absentee voting underway in Alabama, https://www.alreporter.com/2020/09/10/in-person-absentee-voting-underway-in-alabama/. KY: See Kentucky Secretary of State, 2020 Elections General Updates, https://www.sos.ky.gov/elections/Pages/2020-General-Updates.aspx. MA: See Massachusetts Secretary of State, Elections and Voting, https://www.sec.state.ma.us/earlyvotingweb/earlyvotingsearch.aspx. NC: See North Carolina State Board of Elections, Vote Early in Person, https://www.ncsbe.gov/voting/vote-early-person. NV: See Nevada Assembly Bill 4, https://www.leg.state.nv.us/App/NELIS/REL/32nd2020Special/Bill/7150/Text, signed into law August 3, 2020. TX: See July 27, 2020 Executive Order, https://gov.texas.gov/uploads/files/press/PROC_COVID-19_Nov_3_general_election_IMAGE_07–27–2020.pdf, of Governor Greg Abbott. VA: See 13newsnow.com, Expanded Early Voting Begins in Virginia, https://www.13newsnow.com/article/news/politics/elections/expanded-early-voting-starts-in-virginia/291–81bbbfcd-5e94–4eca-a13c-d7c5df44f2dc.
Four states have not allowed any form of early voting in person during the November 2020 election. They are CT, MO, MS & NH.footnote12_kI83MMKLs14k4t8JJlPMONnDCAt71HLeUn3IJK-b1E_yNtdsH0I7YSU12See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions.
Affirmatively Sending Mail Ballots to Voters
Nine states and D.C. affirmatively mailed absentee ballots to all registered voters for the November 2020 election with no application required. Those states are: CA, CO, DC, HI, NJ, NV, OR, UT, VT &WA.
Of those ten jurisdictions, five states already had primarily vote-by mail systems (CO, HI, OR, UT & WA).footnote13_iHytoVYyXxsuRYY0thb0ojRlY1AByaAhdnLx2JVf9w_pkWwNdNXEcGn13Colo. Rev. Stat. § 1–7.5–107(3)(a)(I); Haw. Rev. Stat. § 11–102(b); Or. Rev. Stat. § 254.465; Utah Code § 20A-3a-202; Wash. Rev. Code § 29A.40.01. The other five changed their procedures since the start of the pandemic in order to automatically mail all registered voters a ballot for the November election.
- Three states and the District of Columbia did so by executive action (CA, DC, NJ & VT).footnote14_OGPqpjGEohDGo0LWQGOMH9X89VxDJbCnPqTu1x6tRI8_zp5lCSm7niFY14CA: See Executive Order N-64–20, https://www.gov.ca.gov/wp-content/uploads/2020/05/05.08.2020-EO-N-64–20-text.pdf, subsequently codified by the legislature at Cal. Elec. Code § 3000.5(a). DC: See District of Columbia Board of Elections, General Election 2020, https://www.dcboe.org/. NJ: Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf?utm_medium=email&utm_source=govdelivery, subsequently codified by the legislature, see Assembly Bill 4475, https://legiscan.com/NJ/text/A4475/id/2208140, signed by the Governor on August 28, 2020. VT: See First Statewide Elections Directive, https://sos.vermont.gov/media/hxgjjdkb/secretary-of-state-s-first-2020-statewide-election-procedures-directive.pdf, issued by Secretary of State Jim Condos on 7/20/20.
- Nevada did so through legislation.footnote15_uxikxR42wsEn-sOQfWgxi-l68opg7wqZJmnMDlReFEc_zR3MRg1oosC015See Assembly Bill 4, https://www.leg.state.nv.us/App/NELIS/REL/32nd2020Special/Bill/7150/Overview, signed by the Nevada governor on 8/3/20.
An additional state, Montana, has given counties the option of automatically mailing absentee ballots to all active, registered voters.footnote16_QgPeAum-fVsEFfN0Jv4aoMFC8Rk1QT2aV6C39pjo8_bnkNWqkF1nY316See Directive, https://covid19.mt.gov/Portals/223/Documents/2020–08–06_Directive%20-%20November%20Elections.pdf?ver=2020–08–06–112431–693, issued by Governor Steve Bullock dated 8/6/20.
Affirmatively Sending Mail Ballot Applications to Voters
Of the 41 states that did not affirmatively mail ballots to voters, eleven mailed absentee ballot applications to most or all registered voters for the November 2020 election. Those states are: CT, DE, IA, IL, MA, MD, MI, NE, OH, RI & WI. In addition, New Mexico gave counties the option of automatically sending ballot applications.footnote17_-INQuPa85hF6mWWMZlgBVBu3HQMf4EvMFLQWlyiPY4g_lHdXkeq16X0i17NMSA 1–12–72(D). Alaska has sent ballot applications to all active, registered voters aged 65 and older.footnote18_XMPFqx4gDHpoRr28zO25SpSULR8N5gQaZf1dstt0o_n2EHCGNPIhRF18See https://www.alaskapublic.org/2020/06/21/state-will-mail-absentee-ballot-applications-to-seniors-critics-say-that-suppresses-young-minority-votes/.
- Eight of the eleven states changed their practice by executive action (CT, IA, MD, MI, NE, OH, RI & WI).footnote19_9rrkiQtwUBN0nCxLLv3BI0m7y9G6HhfdOLg4QIrvtHY_vKrOSsLJRA5B19CT: See 5/4/20 press release, https://portal.ct.gov/SOTS/Press-Releases/2020-Press-Releases/Secretary-Merrill-Releases-Connecticuts-Election-Plan-in-the-Face-of-COVID19, by Secretary of State Denise Merrill. IA: See 9/4/20 press release, https://sos.iowa.gov/news/2020_09_04.html, by Secretary of State Paul D. Pate. MD: See 7/8/20 letter from Governor Larry Hogan, https://governor.maryland.gov/wp-content/uploads/2020/07/Letter-to-SBE_November-Election.pdf, to the State Board of Elections. MI: Executive Order 2020–27, https://www.michigan.gov/whitmer/0,9309,7–387–90499_90705–523400—,00.html. NE: See 8/19/20 press release, https://sos.nebraska.gov/sites/sos.nebraska.gov/files/doc/news-releases/Media%20Release%20Nebraska%20Voters%20to%20Receive%20Early%20Ballot%20Request.pdf, from Secretary of State Robert Evnen. OH: See 9/1/20 press release, https://www.ohiosos.gov/media-center/press-releases/2020/2020–09–01/, from Secretary of State Frank LaRose. RI: See 9/11/20 press release, from Secretary of State Nellie Gorbea. WI: See https://www.wpr.org/commission-gives-final-ok-mailing-out-2–7m-absentee-ballot-applications (noting that the Wisconsin Elections Commission had approved a plan to mail all registered voters absentee ballot request forms).
- Three did so by legislation (DE, IL & MA).footnote20_ZDOiu2PCTKCfBwZRdghRhO8SLfEhaoRgvpfJ6WNJH90_bLb7lZi8wSmF20DE: 15 Del. C. § 5603, which expires 1/12/21, states that “The State Election Commissioner shall, no later than 60 days before any election to which this chapter applies, mail an application to receive a voting by mail ballot to every qualified, duly registered elector.” IL: See HB 2238, signed by the governor on 6/6/20, https://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=108&GA=101&DocTypeId=HB&DocNum=2238&GAID=15&LegID=118021&SpecSess=&Session=. MA: See H 4820, http://cdn.cnn.com/cnn/2020/images/07/07/h4820.signed.pdf, signed by the governor on 7/ 6/20.
At least three states that did not mail all voters an absentee ballot application have certain local jurisdictions that did so. Those jurisdictions include Dekalb County, GA; some counties in Pennsylvania; and three counties in Kansas.
Eighteen of the 30 states that did not automatically send ballots or ballot applications provided an online absentee ballot request tool to voters across the state. Those states are: AK, AZ, FL, GA, ID, IN, KY, LA, ME, MN, NC, ND, NM, NY, OK, PA, VA & WV.footnote21_mhTRg-TWX7oXIHMBZsrmdkrKMOPlNC0LVQA6deYFpvc_yuwvRJtp1zJQ21The online absentee ballot request websites for each state are available here: AK: https://absenteeballotapplication.alaska.gov/, AZ: https://my.arizona.vote/Early/ApplicationLogin.aspx, FL: https://dos.myflorida.com/elections/for-voters/voting/vote-by-mail/, GA: https://ballotrequest.sos.ga.gov/voter/voterSearch, ID: https://elections.sos.idaho.gov/ElectionLink/ElectionLink/BeginAbsenteeRequest.aspx, IN: https://indianavoters.in.gov/MVPHome/PrintDocuments, KY: https://vrsws.sos.ky.gov/abrweb/, LA: https://www.sos.la.gov/ElectionsAndVoting/Vote/VoteByMail/Pages/default.aspx, ME: https://apps.web.maine.gov/cgi-bin/online/AbsenteeBallot/index.pl, MN: https://mnvotes.sos.state.mn.us/ABRegistration/ABRegistrationStep1.aspx, NC: https://www.ncsbe.gov/voting/vote-mail/absentee-ballot-tools, ND: https://vip.sos.nd.gov/absentee, NM: https://portal.sos.state.nm.us/OVR/WebPages/AbsenteeApplication.aspx?type=RA&AspxAutoDetectCookieSupport=1, NY: https://absenteeballot.elections.ny.gov/, OK: https://www.ok.gov/elections/OVP.html, PA: https://www.pavoterservices.pa.gov/onlineabsenteeapplication/#/OnlineAbsenteeBegin, VA: https://vote.elections.virginia.gov/VoterInformation & WV: https://sites.omniballot.us/54/absentee/app/absentee/lookup.
That leaves twelve states that did not mail all registered voters absentee ballot applications and also did not make the absentee ballot request form easily accessible through an online system. Those states are AL, AR, KS, MO, MS, MT, NH, SC, SD, TN, TX & WY.
Ballot Postage
Twenty-two states and D.C. provided pre-paid postage for vote-by-mail or absentee ballots during the November 2020 election. Those states are: AZ, CA, CT, DC, DE, HI, IA, IN, KY, MA, MD, MN, MO, NJ, NM, NV, OR, PA, VA, VT, WA, WI, WV.footnote22_kI83MMKLs14k4t8JJlPMONnDCAt71HLeUn3IJK-b1E_eAKbLe7HifeG22See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions.
Eight states and D.C. made changes in order to provide pre-paid postage for absentee ballots during the November 2020 election. They are CT, DC, KY, MA, MD, NJ, PA, VA, VT.
- Five states and D.C. did so by executive action (CT, DC, KY, NJ, PA & VT).footnote23_L8a-9tKFamjsfUIHkCY7Xn81NnuO8ZRzkQxZpXUobS4_dQZ5RDgrScFz23CT: See Letter from Secretary of the State Denise Merrill, https://authoring.ct.gov/-/media/SOTS/ElectionServices/2020-Voting-Plan-FINAL-DRAFT-May-2–715-PM.pdf?la=en. DC: See District of Columbia Board of Elections, Mail Ballot Instructions,https://www.dcboe.org/Voters/How-to-Vote/Mail-Ballot-Instructions. KY: See 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf; NJ: See Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf?utm_medium=email&utm_source=govdelivery, and Assembly Bill 4475 https://legiscan.com/NJ/text/A4475/id/2208140. NJ: See Press Release of Governor Phil Murphy, https://www.nj.gov/governor/news/news/562020/20200814b.shtml; see also Assembly Bill 4475, https://legiscan.com/NJ/bill/A4475/2020, signed by the Governor on August 28, 2020. PA: See Pennsylvania Pressroom, Pennsylvania Will Provide Postage-Paid Return Envelopes with Mail and Absentee Ballots, https://www.media.pa.gov/pages/state-details.aspx?newsid=391. VT: See First Statewide Elections Directive, https://sos.vermont.gov/media/hxgjjdkb/secretary-of-state-s-first-2020-statewide-election-procedures-directive.pdf, issued by Secretary of State Jim Condos on 7/20/20. New Jersey’s executive order was later codified legislatively.
- Three states did so by legislation (MA, MD & VA).footnote24_Gdyl6AhlyLvhpNKozFqAHafrVjK1QuqE-LJ6TFsr-8_wjIHvUOz73nT24MA: See House Bill 4820, https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115. MD: See Md. Election Law Code § 9–310(a)(4)(ii). VA: Senate Bill 5120, https://lis.virginia.gov/cgi-bin/legp604.exe?202+sum+SB5120&202+sum+SB5120.
Absentee ballot postage related lawsuits are currently pending in GA, MI, NC, NY, OH, OK & TX.footnote25_LFbjOnfaAcmS2JGZx1J2TZvZF41heYp6qZS8GY5Jizg_gqVwk4wS6BHX25See Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020.
Changes to Voting Laws & Procedures, Generally
As a result of the pandemic, 35 states and Washington, D.C. have made substantive changesfootnote26_MrCJ4hH5Ugz2XrXJDG960Mr88HMMQzWi0mFKvOb1N4w_ojXWN7CNfBE826The term “substantive changes” includes changes to the absentee process such as: significantly expanding who can vote absentee; ending notary requirements for absentee voting; extending the deadline for arrival of absentee ballots that are post-marked by election day; providing postage for absentee ballots; newly providing voters with a notice-and-cure opportunity; and directly mailing ballots or absentee applications to voters. The term also includes significantly expanding early voting, such as adding additional days or significantly increasing hours. Those changes that did not count as significant included expanding absentee ballot return locations (e.g., ME, WY) or simply clarifying that those individuals with pre-existing conditions could use the illness exception to vote absentee (e.g., LA, TN). to their voting systems that will be in place at least through the November 2020 election.
Fourteen states have passed new legislation that makes substantive changes related to voting which will be in place for the November election. Those states are: CA, CT, DE, IL, MA, MD, MO, MS, NJ, NV, NY, PA, SC & VA.footnote27_d3dRBx7-Ck9894nYENDmASKc6IzDgKevamiAbGfkVQ_qVa0E2qjfbeo27See, e.g., Missouri Senate Bill 631, https://www.senate.mo.gov/20info/BTS_Web/Bill.aspx?SessionType=R&BillID=26837998, signed by the Governor on June 4, 2020, which provides for no-excuse mail-in voting during all 2020 elections. For more information about changes to state voting laws, see The Brennan Center, Protecting Election 2020 from Covid-19: Toolkits for Activists Across the Nation, https://www.brennancenter.org/our-work/research-reports/election-2020-covid-toolkits.
Thirteen states and Puerto Rico have made substantive changes to voting procedures or policies since the start of the pandemic as a result of litigation. Those states are: AK, AL, AZ, IN, MI, MN, NC, ND, NY, PA, RI, VA & WI.footnote28_loSqiKKh5L1nmMrWNfJHL1MoJqjhh8axc4uaNHdTJY0_pHJjokte8t3J28See, e.g., Michigan Alliance for Retired Americans v. Benson, No. 2020–000108-MM (Mich. Ct. Claims) (ordering that otherwise valid ballots postmarked by the day before election day and received within 14 days of election day be counted). For more information about COVID-related voting litigation, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020.
Twenty states and D.C. have made substantive changes to voting procedures or policies since the start of the pandemic via executive action. Those states are: AL, AR, AZ, CA, CT, IA, KY, MI, MT, NC, NE, NH, NJ, NM, OH, PA, RI, TX, VT & WV.footnote29_Ak41kVc1Z340cNODgP3DhxTW2wEn2rRI2rEmNpiOeCA_yHZvJId1Rm2P29See, e.g., New Jersey Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf, issued August 14, requiring ballots be sent to all registered voters in the state. For more information on substantive changes made by executive order, see notes 2, 11, 15, 20, 24 & 33.
Five states already had 100% vote-by-mail systems before the pandemic. Those states are: CO, HI, OR, UT & WA.
That leaves 10 states that, despite having voting systems which are vulnerable to being upended by the pandemic, have not made substantive changes to their voter systems for November. Those states are: FL, GA, ID, KS, LA, ME, OK, SD, TN & WY.footnote30_e6D2s9MNyAPFCSr4Ndixv-wfBhuUF96XkvE5YpPwb8_jerZBGlmaQZf30Each of these states had the opportunity to make changes that would have made voting during a pandemic more accessible, but did not do so. For example, every state on this list except Kansas will refuse to count ballots which are postmarked on election day but received in the days following (See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions). Indeed, Florida requires, https://dos.myflorida.com/elections/for-voters/voting/vote-by-mail/, that absentee ballots be received by county officials ten days before election day. As another example, Kansas requires, https://www.kshb.com/news/election-2020/election-guide/mo-supreme-court-signs-off-on-mail-in-ballot-notary-requirement, mail ballots be notarized, Louisiana requires, https://www.sos.la.gov/ElectionsAndVoting/Vote/FrequentlyAskedQuestions/Pages/VotingByMail.aspx?OwnershipName=VotingByMail&faqid=0, they be signed by a witness, and Oklahoma requires, https://www.ok.gov/elections/documents/Physically%20Incapacitated_Absentee_Ballot_Packet.pdf, signatures from two witnesses.
Vote-by-Mail and Absentee Voting Excuses
Thirty-four states and D.C. allow any voter who chooses to vote by mail or absentee ballot to do so without having to provide an excuse. Those jurisdictions are: AK, AZ, CA, CO, 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 & WY.
All but one of these states (VA) already had no-excuse voting in place prior to the pandemic. Virginia is the only state which has passed legislation to permanently allow no-excuse absentee voting since the start of the pandemic.footnote31_9ae4vxpfxXwCykJUtFzX1lFc4cgaKLSblOxqPpt0pI_o6v4ImnJLzEb31See Va. Code § 24.2–700.
Of the remaining 16 states, 11 have eliminated the excuse requirement for the November election, or have expanded the definition of a pre-existing excuse to encompass voters who fear spreading or contracting Covid-19. As a result, voters in those 11 states will be able to vote absentee in November without having to provide an excuse beyond Covid-19. Those states are AL, AR, CT, DE, KY, MA, MO, NH, NY, SC & WV. Of those:
- 5 states did so by executive action (AL, AR, KY, NH & WV);footnote32_RXgr510DcdeuxZFKsClXj7pA3zqR1Lct64AC8RSLgX4_pc3eBDX5Z05H32AL: On 7/17/20, Alabama Secretary of State John Merrill (R) issued an emergency rule, https://www.sos.alabama.gov/sites/default/files/proposedRules/820–2–3-.06-.04ER.pdf, allowing any qualified voter to cast an absentee ballot in the November 3, 2020 election, by interpreting the “physical illness or infirmity” language of Ala. Code § 17–11–3(a)(2) to include Covid-related concerns. AR: On 8/7/20, Arkansas Governor Asa Hutchinson issued Executive Order 20–44, https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20–44.pdf, allowing Arkansans to vote absentee if they are concerned that voting in person may be a risk to their health or to the health of others due to Covid-19. KY: See Kentucky’s 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf. NH: On 4/10/20, the New Hampshire secretary of state issued a memorandum, https://www.nhpr.org/sites/nhpr/files/202004/covid-19_elections_guidance.pdf, expanding the interpretation of “disability” to include voters who elect to self-quarantine. WV: On 7/27/20, the West Virginia secretary of state announced, https://sos.wv.gov/news/Pages/07–27–2020-A.asp, that “[a]ny voter concerned about their health and safety because of COVID-19 will have the option to vote by absentee ballot” by selecting the “illness, injury or other medical reason which keeps me confined” as the excuse.
- 6 states did so by legislation (CT, DE, MA, MO, NY & SC).footnote33_46UKVRP-jjP2hTfOUiqjTR7gGTEfM6UADN5r6zn4zK8_zqFCbiZgfZ4p33CT: On 7/31/20, the Connecticut governor signed HB 6002, https://legiscan.com/CT/text/HB06002/2020, which adds “the sickness of Covid-19” to the list of excuses for absentee voting during the 2020 election. DE: See 15 Del. C. § 5602, which expires 1/12/21, allowing “any qualified elector” to vote by mail in the 2020 general election. MA: On 7/6/20, the Massachusetts governor signed H.4820, https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115, allowing “any qualified voter to cast an early ballot by mail for the … general election.” MO: On 6/4/20, the Missouri governor signed SB 631, https://legiscan.com/MO/text/SB631/2020, expiring 12/31/20, providing that “any registered voter of this state may cast a mail-in ballot.” NY: On 8/20/20, the New York governor signed S.8015-D/A.10833, https://www.governor.ny.gov/news/governor-cuomo-signs-law-sweeping-election-reforms, authorizing voters to request an absentee ballot due to risk of illness, including Covid-19. SC: On 9/16/20, the South Carolina governor signed H.305/R.149, https://www.scvotes.gov/new-absentee-rules-2020-general-election, allowing all voters to vote absentee in the November 3, 2020 general election using a newly created “State of Emergency” excuse.
Seven of the 11 states that made changes did so by re-interpreting existing excuses, such as disability or illness in relation to Covid-19, either via executive order or temporary legislation. Those states are AL, AR, CT, KY, NH, NY & WV. The four remaining states—DE, MA, MO & SC—did so by passing no-excuse legislation that will sunset after the November 2020 election.
The five states that will not allow all voters to vote-by-mail in spite of the pandemic are IN, LA, MS, TN & TX.footnote34_CSyITNhxou63VtRM3bOUDZ0shnWJjcFFju3iqTw14w_wcG6xPoZDNxn34IN: Ind. Code § 3–11–10–24. LA: La. RS § 18:1303(B), Harding v. Edwards, 2020 WL 5543769 (M.D. La. 2020), expanding the available excuses to include voters at a higher risk of contracting Covid-19 “because of serious medical conditions, those subject to a ‘medically necessary quarantine or isolation order,’ those advised by a health provider to self-quarantine, those experiencing symptoms of Covid-19 and seeking a medical diagnosis, and those caring for an individual who is subject to a quarantine order and has been advised to self-quarantine.” MS: H.B. 1521, http://billstatus.ls.state.ms.us/documents/2020/pdf/HB/1500–1599/HB1521SG.pdf, expanding excuses to include being subject of “a physician-imposed quarantine due to COVID-19 during the year 2020,” or caring for one who is subject to the same. TN: Tenn. Code § 2–6–202(a)(3), Fisher v. Hargett, 604 S.W.3d 381 (Sup. Ct. Tenn. 2020), holding that persons with underlying medical or health conditions that make them particularly susceptible to contracting Covid-19 or who are at greater risk should they contract it, and their caretakers, are eligible to vote absentee by mail for the November 3 election. TX: Tex. Elec. Code § 82.001–82.004. Excuse-related litigation is pending in all of those states.footnote35_kyq0x8exszRjstkEDNmfFGyUMtN8SvU0pYzGqfmiuyk_zLiMGVjT94Xj35IN: Tully v. Okeson, No. 1:20-cv-1271 (S.D. Ind.), No. 20–2605 (7th Cir.). LA: Harding v. Edwards, No. 3:20-cv-495 (M.D. La.). MS: O’Neill v. Hosemann, No. 3:18-cv-815 (S.D. Miss.); Parham v. Watson, No. 3:20-cv-572 (N.D. Miss.). TN: Demster v. Hargett, No. 20–0435-III (Tenn. Chancery Ct., Davidson Cnty.); Fisher v. Hargett, No. M2020–831-SC-RDM-CV (Sup. Ct. Tenn.); Memphis A. Phillip Randolph Institute v. Hargett, No. 3:20-cv-374 (M.D. Tenn.), Nos. 20–6046, 20–6141 (6th Cir.). TX: 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.), No. 2020–50407 (5th Cir.), No. 19A1055 (S. Ct.). Louisiana, Mississippi, and Tennessee have modestly expanded existing excuses to encompass voters who are at a particularly high risk of contracting or spreading COVID-19, Mississippi having done so through legislation, and Louisiana and Tennessee having done so as a result of litigation. Due to successful litigation in Puerto Rico, all voters aged 60 and over may vote absentee this November and beyond.
Pandemic-Related Voting Litigation
Since the start of the pandemic, approximately 250 voting-related lawsuits have been filed in at least 42 states, the District of Columbia and Puerto Rico.footnote36_CBeW33hCSShQC4b6KT6byIzLD7kjJ3wyfFaG8M8nM_qrP9PV5wGmBw36For more detailed information about pandemic-related voting litigation, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. This leaves only eight states that have not seen voting rights litigation during this period: CO, KS, NE, OR, SD, UT, WV & WY.
Of these, 165 cases take what the Brennan Center would consider to be a “pro-voter” posture, whereas only 77 seek to restrict voters’ rights.
As of November 2, 2020, 77 cases had either interim or final “anti-voter” outcomes, whereas primarily pro-voter interim or final orders were issued in 108 cases.
As of November 2, 2020, 143 cases in 32 states and the District of Columbia remain pending, on appeal, or subject to appeal.
End Notes
-
footnote1_OmJ16Xcv4iWJNQ6Ub3ges9X3XAQ-9q6cn—RYRTxXU_qKUnQsaME3jB
1
See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions. -
footnote2_ipmeraN6RfHp1habQjqf7s7gJSigmy6omc6kmTJ2ooc_pRzL4WB8Lk8m
2
See Kentucky’s 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf. -
footnote3_BGM16l5GM-Bfk7iGjbc3R0h6GDmQRchyT8ad1Zp2QE_a1ENK7W3tlyi
3
MA: See H.4820 https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115. MS: See H.B. 1521 http://billstatus.ls.state.ms.us/documents/2020/pdf/HB/1500–1599/HB1521SG.pdf. NY: See S.8799A/A.10808-A https://www.governor.ny.gov/news/governor-cuomo-signs-law-sweeping-election-reforms. -
footnote4_Uj1xaj2lcVzJKABAis30I4DkY7AcVlMZ8kRUHq4BWh8_uY7EDPeOa773
4
MN: See Order https://www.documentcloud.org/documents/7012992-LaRose-Order-62-CV-20–3149-Order-on-July-31.html approving General Election Consent Decree in LaRose v. Simon, No. 62-CV-20–3149 (Minn. Dist. Ct., Ramsey Cnty.). PA: See order & opinion https://www.courtlistener.com/recap/gov.uscourts.pawd.268736/gov.uscourts.pawd.268736.446.1.pdf issued 9/17/20 in Pennsylvania Democratic Party v. Boockvar, No. 407 MD 2020 (Commonwealth Ct. Pa.); No. 133 MM 2020 (Pa. Sup. Ct.). However, the decisions in Pennsylvania and Minnesota may be subject to change given pending cert petitions in the U.S. Supreme Court regarding Pennsylvania and an October 29, 2020 order https://ecf.ca8.uscourts.gov/opndir/20/10/203139P.pdf from the Eighth Circuit finding that the Minnesota deadline extension was likely unconstitutional and ordering the segregation of late-arriving ballots. -
footnote5_LFbjOnfaAcmS2JGZx1J2TZvZF41heYp6qZS8GY5Jizg_rxSgkgVGgEJm
5
See Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. -
footnote6_OmJ16Xcv4iWJNQ6Ub3ges9X3XAQ-9q6cn—RYRTxXU_aeoNxSakzoBn
6
See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions. -
footnote7_C-VHhHxwVXAtFCssatgNgLueZlDpjPC7fTd40EK-UE0_tyWRO0v7kSvE
7
On August 20, 2020, a federal district court issued a permanent injunction, https://www.courtlistener.com/recap/gov.uscourts.insd.94815/gov.uscourts.insd.94815.82.0_1.pdf, precluding the Indiana Secretary of State and all Indiana election officials from rejecting “any mail-in absentee ballot on the basis of a signature mismatch absent adequate notice and cure procedures to the affected voter.” As of November 2, 2020, however, it is unclear whether statewide notice and cure guidelines have been issued to comply with the order. -
footnote8_tOn-HI2PIviQD0MniM9A5RRWOQsquG-IRFt2fRS-7Y_qnJEWmKihsQb
8
NJ: See NJ A4276, https://www.billtrack50.com/BillDetail/1234587, enacted 8/28/20, which appears to have been passed (at least in part) in response to litigation, https://www.lwv.org/newsroom/press-releases/agreement-new-jersey-lawsuit-will-establish-fair-ballot-signature-match. VA: See Virginia Senate Bill 5120, https://lis.virginia.gov/cgi-bin/legp604.exe?202+ful+SB5120, approved by the Governor on 9/4/20. -
footnote9_4fV51t-nXgJytSxbGH9Ud-VJdXIMxs0sUKJunADGhYk_ppS25YhwHhE5
9
For more information about these lawsuits, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. Note also that MS & NC changed their notice and cure procedures via executive action brought about by litigation. -
footnote10_CVqx6KtHzv78wM8pjtpf2AA5HdJ90DhPbBTM9xOU0E_onkNDfMXNK8o
10
See August 14, 2020 letter, https://governor.ky.gov/attachments/SOS%20General%20Election%20Manner%20Recommendation.pdf, from Secretary of State Michael Adams to Governor Andy Beshear. -
footnote11_2mzEJBxiOZoArgHahUgdOdB-kHcBSu0qjbhYNhgLvPo_eDKMwp0H6KvF
11
AL: See Alabama Reporter, In-person absentee voting underway in Alabama, https://www.alreporter.com/2020/09/10/in-person-absentee-voting-underway-in-alabama/. KY: See Kentucky Secretary of State, 2020 Elections General Updates, https://www.sos.ky.gov/elections/Pages/2020-General-Updates.aspx. MA: See Massachusetts Secretary of State, Elections and Voting, https://www.sec.state.ma.us/earlyvotingweb/earlyvotingsearch.aspx. NC: See North Carolina State Board of Elections, Vote Early in Person, https://www.ncsbe.gov/voting/vote-early-person. NV: See Nevada Assembly Bill 4, https://www.leg.state.nv.us/App/NELIS/REL/32nd2020Special/Bill/7150/Text, signed into law August 3, 2020. TX: See July 27, 2020 Executive Order, https://gov.texas.gov/uploads/files/press/PROC_COVID-19_Nov_3_general_election_IMAGE_07–27–2020.pdf, of Governor Greg Abbott. VA: See 13newsnow.com, Expanded Early Voting Begins in Virginia, https://www.13newsnow.com/article/news/politics/elections/expanded-early-voting-starts-in-virginia/291–81bbbfcd-5e94–4eca-a13c-d7c5df44f2dc. -
footnote12_kI83MMKLs14k4t8JJlPMONnDCAt71HLeUn3IJK-b1E_yNtdsH0I7YSU
12
See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions. -
footnote13_iHytoVYyXxsuRYY0thb0ojRlY1AByaAhdnLx2JVf9w_pkWwNdNXEcGn
13
Colo. Rev. Stat. § 1–7.5–107(3)(a)(I); Haw. Rev. Stat. § 11–102(b); Or. Rev. Stat. § 254.465; Utah Code § 20A-3a-202; Wash. Rev. Code § 29A.40.01. -
footnote14_OGPqpjGEohDGo0LWQGOMH9X89VxDJbCnPqTu1x6tRI8_zp5lCSm7niFY
14
CA: See Executive Order N-64–20, https://www.gov.ca.gov/wp-content/uploads/2020/05/05.08.2020-EO-N-64–20-text.pdf, subsequently codified by the legislature at Cal. Elec. Code § 3000.5(a). DC: See District of Columbia Board of Elections, General Election 2020, https://www.dcboe.org/. NJ: Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf?utm_medium=email&utm_source=govdelivery, subsequently codified by the legislature, see Assembly Bill 4475, https://legiscan.com/NJ/text/A4475/id/2208140, signed by the Governor on August 28, 2020. VT: See First Statewide Elections Directive, https://sos.vermont.gov/media/hxgjjdkb/secretary-of-state-s-first-2020-statewide-election-procedures-directive.pdf, issued by Secretary of State Jim Condos on 7/20/20. -
footnote15_uxikxR42wsEn-sOQfWgxi-l68opg7wqZJmnMDlReFEc_zR3MRg1oosC0
15
See Assembly Bill 4, https://www.leg.state.nv.us/App/NELIS/REL/32nd2020Special/Bill/7150/Overview, signed by the Nevada governor on 8/3/20. -
footnote16_QgPeAum-fVsEFfN0Jv4aoMFC8Rk1QT2aV6C39pjo8_bnkNWqkF1nY3
16
See Directive, https://covid19.mt.gov/Portals/223/Documents/2020–08–06_Directive%20-%20November%20Elections.pdf?ver=2020–08–06–112431–693, issued by Governor Steve Bullock dated 8/6/20. -
footnote17_-INQuPa85hF6mWWMZlgBVBu3HQMf4EvMFLQWlyiPY4g_lHdXkeq16X0i
17
NMSA 1–12–72(D). -
footnote18_XMPFqx4gDHpoRr28zO25SpSULR8N5gQaZf1dstt0o_n2EHCGNPIhRF
18
-
footnote19_9rrkiQtwUBN0nCxLLv3BI0m7y9G6HhfdOLg4QIrvtHY_vKrOSsLJRA5B
19
CT: See 5/4/20 press release, https://portal.ct.gov/SOTS/Press-Releases/2020-Press-Releases/Secretary-Merrill-Releases-Connecticuts-Election-Plan-in-the-Face-of-COVID19, by Secretary of State Denise Merrill. IA: See 9/4/20 press release, https://sos.iowa.gov/news/2020_09_04.html, by Secretary of State Paul D. Pate. MD: See 7/8/20 letter from Governor Larry Hogan, https://governor.maryland.gov/wp-content/uploads/2020/07/Letter-to-SBE_November-Election.pdf, to the State Board of Elections. MI: Executive Order 2020–27, https://www.michigan.gov/whitmer/0,9309,7–387–90499_90705–523400—,00.html. NE: See 8/19/20 press release, https://sos.nebraska.gov/sites/sos.nebraska.gov/files/doc/news-releases/Media%20Release%20Nebraska%20Voters%20to%20Receive%20Early%20Ballot%20Request.pdf, from Secretary of State Robert Evnen. OH: See 9/1/20 press release, https://www.ohiosos.gov/media-center/press-releases/2020/2020–09–01/, from Secretary of State Frank LaRose. RI: See 9/11/20 press release, from Secretary of State Nellie Gorbea. WI: See https://www.wpr.org/commission-gives-final-ok-mailing-out-2–7m-absentee-ballot-applications (noting that the Wisconsin Elections Commission had approved a plan to mail all registered voters absentee ballot request forms). -
footnote20_ZDOiu2PCTKCfBwZRdghRhO8SLfEhaoRgvpfJ6WNJH90_bLb7lZi8wSmF
20
DE: 15 Del. C. § 5603, which expires 1/12/21, states that “The State Election Commissioner shall, no later than 60 days before any election to which this chapter applies, mail an application to receive a voting by mail ballot to every qualified, duly registered elector.” IL: See HB 2238, signed by the governor on 6/6/20, https://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=108&GA=101&DocTypeId=HB&DocNum=2238&GAID=15&LegID=118021&SpecSess=&Session=. MA: See H 4820, http://cdn.cnn.com/cnn/2020/images/07/07/h4820.signed.pdf, signed by the governor on 7/ 6/20. -
footnote21_mhTRg-TWX7oXIHMBZsrmdkrKMOPlNC0LVQA6deYFpvc_yuwvRJtp1zJQ
21
The online absentee ballot request websites for each state are available here: AK: https://absenteeballotapplication.alaska.gov/, AZ: https://my.arizona.vote/Early/ApplicationLogin.aspx, FL: https://dos.myflorida.com/elections/for-voters/voting/vote-by-mail/, GA: https://ballotrequest.sos.ga.gov/voter/voterSearch, ID: https://elections.sos.idaho.gov/ElectionLink/ElectionLink/BeginAbsenteeRequest.aspx, IN: https://indianavoters.in.gov/MVPHome/PrintDocuments, KY: https://vrsws.sos.ky.gov/abrweb/, LA: https://www.sos.la.gov/ElectionsAndVoting/Vote/VoteByMail/Pages/default.aspx, ME: https://apps.web.maine.gov/cgi-bin/online/AbsenteeBallot/index.pl, MN: https://mnvotes.sos.state.mn.us/ABRegistration/ABRegistrationStep1.aspx, NC: https://www.ncsbe.gov/voting/vote-mail/absentee-ballot-tools, ND: https://vip.sos.nd.gov/absentee, NM: https://portal.sos.state.nm.us/OVR/WebPages/AbsenteeApplication.aspx?type=RA&AspxAutoDetectCookieSupport=1, NY: https://absenteeballot.elections.ny.gov/, OK: https://www.ok.gov/elections/OVP.html, PA: https://www.pavoterservices.pa.gov/onlineabsenteeapplication/#/OnlineAbsenteeBegin, VA: https://vote.elections.virginia.gov/VoterInformation & WV: https://sites.omniballot.us/54/absentee/app/absentee/lookup. -
footnote22_kI83MMKLs14k4t8JJlPMONnDCAt71HLeUn3IJK-b1E_eAKbLe7HifeG
22
See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions. -
footnote23_L8a-9tKFamjsfUIHkCY7Xn81NnuO8ZRzkQxZpXUobS4_dQZ5RDgrScFz
23
CT: See Letter from Secretary of the State Denise Merrill, https://authoring.ct.gov/-/media/SOTS/ElectionServices/2020-Voting-Plan-FINAL-DRAFT-May-2–715-PM.pdf?la=en. DC: See District of Columbia Board of Elections, Mail Ballot Instructions,https://www.dcboe.org/Voters/How-to-Vote/Mail-Ballot-Instructions. KY: See 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf; NJ: See Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf?utm_medium=email&utm_source=govdelivery, and Assembly Bill 4475 https://legiscan.com/NJ/text/A4475/id/2208140. NJ: See Press Release of Governor Phil Murphy, https://www.nj.gov/governor/news/news/562020/20200814b.shtml; see also Assembly Bill 4475, https://legiscan.com/NJ/bill/A4475/2020, signed by the Governor on August 28, 2020. PA: See Pennsylvania Pressroom, Pennsylvania Will Provide Postage-Paid Return Envelopes with Mail and Absentee Ballots, https://www.media.pa.gov/pages/state-details.aspx?newsid=391. VT: See First Statewide Elections Directive, https://sos.vermont.gov/media/hxgjjdkb/secretary-of-state-s-first-2020-statewide-election-procedures-directive.pdf, issued by Secretary of State Jim Condos on 7/20/20. -
footnote24_Gdyl6AhlyLvhpNKozFqAHafrVjK1QuqE-LJ6TFsr-8_wjIHvUOz73nT
24
MA: See House Bill 4820, https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115. MD: See Md. Election Law Code § 9–310(a)(4)(ii). VA: Senate Bill 5120, https://lis.virginia.gov/cgi-bin/legp604.exe?202+sum+SB5120&202+sum+SB5120. -
footnote25_LFbjOnfaAcmS2JGZx1J2TZvZF41heYp6qZS8GY5Jizg_gqVwk4wS6BHX
25
See Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. -
footnote26_MrCJ4hH5Ugz2XrXJDG960Mr88HMMQzWi0mFKvOb1N4w_ojXWN7CNfBE8
26
The term “substantive changes” includes changes to the absentee process such as: significantly expanding who can vote absentee; ending notary requirements for absentee voting; extending the deadline for arrival of absentee ballots that are post-marked by election day; providing postage for absentee ballots; newly providing voters with a notice-and-cure opportunity; and directly mailing ballots or absentee applications to voters. The term also includes significantly expanding early voting, such as adding additional days or significantly increasing hours. Those changes that did not count as significant included expanding absentee ballot return locations (e.g., ME, WY) or simply clarifying that those individuals with pre-existing conditions could use the illness exception to vote absentee (e.g., LA, TN). -
footnote27_d3dRBx7-Ck9894nYENDmASKc6IzDgKevamiAbGfkVQ_qVa0E2qjfbeo
27
See, e.g., Missouri Senate Bill 631, https://www.senate.mo.gov/20info/BTS_Web/Bill.aspx?SessionType=R&BillID=26837998, signed by the Governor on June 4, 2020, which provides for no-excuse mail-in voting during all 2020 elections. For more information about changes to state voting laws, see The Brennan Center, Protecting Election 2020 from Covid-19: Toolkits for Activists Across the Nation, https://www.brennancenter.org/our-work/research-reports/election-2020-covid-toolkits. -
footnote28_loSqiKKh5L1nmMrWNfJHL1MoJqjhh8axc4uaNHdTJY0_pHJjokte8t3J
28
See, e.g., Michigan Alliance for Retired Americans v. Benson, No. 2020–000108-MM (Mich. Ct. Claims) (ordering that otherwise valid ballots postmarked by the day before election day and received within 14 days of election day be counted). For more information about COVID-related voting litigation, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020. -
footnote29_Ak41kVc1Z340cNODgP3DhxTW2wEn2rRI2rEmNpiOeCA_yHZvJId1Rm2P
29
See, e.g., New Jersey Executive Order 177, https://nj.gov/infobank/eo/056murphy/pdf/EO-177.pdf, issued August 14, requiring ballots be sent to all registered voters in the state. For more information on substantive changes made by executive order, see notes 2, 11, 15, 20, 24 & 33. -
footnote30_e6D2s9MNyAPFCSr4Ndixv-wfBhuUF96XkvE5YpPwb8_jerZBGlmaQZf
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Each of these states had the opportunity to make changes that would have made voting during a pandemic more accessible, but did not do so. For example, every state on this list except Kansas will refuse to count ballots which are postmarked on election day but received in the days following (See Brennan Center, Preparing Your State for an Election Under Pandemic Conditions, https://www.brennancenter.org/our-work/research-reports/preparing-your-state-election-under-pandemic-conditions). Indeed, Florida requires, https://dos.myflorida.com/elections/for-voters/voting/vote-by-mail/, that absentee ballots be received by county officials ten days before election day. As another example, Kansas requires, https://www.kshb.com/news/election-2020/election-guide/mo-supreme-court-signs-off-on-mail-in-ballot-notary-requirement, mail ballots be notarized, Louisiana requires, https://www.sos.la.gov/ElectionsAndVoting/Vote/FrequentlyAskedQuestions/Pages/VotingByMail.aspx?OwnershipName=VotingByMail&faqid=0, they be signed by a witness, and Oklahoma requires, https://www.ok.gov/elections/documents/Physically%20Incapacitated_Absentee_Ballot_Packet.pdf, signatures from two witnesses. -
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See Va. Code § 24.2–700. -
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AL: On 7/17/20, Alabama Secretary of State John Merrill (R) issued an emergency rule, https://www.sos.alabama.gov/sites/default/files/proposedRules/820–2–3-.06-.04ER.pdf, allowing any qualified voter to cast an absentee ballot in the November 3, 2020 election, by interpreting the “physical illness or infirmity” language of Ala. Code § 17–11–3(a)(2) to include Covid-related concerns. AR: On 8/7/20, Arkansas Governor Asa Hutchinson issued Executive Order 20–44, https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20–44.pdf, allowing Arkansans to vote absentee if they are concerned that voting in person may be a risk to their health or to the health of others due to Covid-19. KY: See Kentucky’s 2020 General Election Emergency Regulations, https://www.sos.ky.gov/elections/Documents/2020GeneralElection/Signed%2031%20KAR%204.192E.pdf. NH: On 4/10/20, the New Hampshire secretary of state issued a memorandum, https://www.nhpr.org/sites/nhpr/files/202004/covid-19_elections_guidance.pdf, expanding the interpretation of “disability” to include voters who elect to self-quarantine. WV: On 7/27/20, the West Virginia secretary of state announced, https://sos.wv.gov/news/Pages/07–27–2020-A.asp, that “[a]ny voter concerned about their health and safety because of COVID-19 will have the option to vote by absentee ballot” by selecting the “illness, injury or other medical reason which keeps me confined” as the excuse. -
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CT: On 7/31/20, the Connecticut governor signed HB 6002, https://legiscan.com/CT/text/HB06002/2020, which adds “the sickness of Covid-19” to the list of excuses for absentee voting during the 2020 election. DE: See 15 Del. C. § 5602, which expires 1/12/21, allowing “any qualified elector” to vote by mail in the 2020 general election. MA: On 7/6/20, the Massachusetts governor signed H.4820, https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter115, allowing “any qualified voter to cast an early ballot by mail for the … general election.” MO: On 6/4/20, the Missouri governor signed SB 631, https://legiscan.com/MO/text/SB631/2020, expiring 12/31/20, providing that “any registered voter of this state may cast a mail-in ballot.” NY: On 8/20/20, the New York governor signed S.8015-D/A.10833, https://www.governor.ny.gov/news/governor-cuomo-signs-law-sweeping-election-reforms, authorizing voters to request an absentee ballot due to risk of illness, including Covid-19. SC: On 9/16/20, the South Carolina governor signed H.305/R.149, https://www.scvotes.gov/new-absentee-rules-2020-general-election, allowing all voters to vote absentee in the November 3, 2020 general election using a newly created “State of Emergency” excuse. -
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IN: Ind. Code § 3–11–10–24. LA: La. RS § 18:1303(B), Harding v. Edwards, 2020 WL 5543769 (M.D. La. 2020), expanding the available excuses to include voters at a higher risk of contracting Covid-19 “because of serious medical conditions, those subject to a ‘medically necessary quarantine or isolation order,’ those advised by a health provider to self-quarantine, those experiencing symptoms of Covid-19 and seeking a medical diagnosis, and those caring for an individual who is subject to a quarantine order and has been advised to self-quarantine.” MS: H.B. 1521, http://billstatus.ls.state.ms.us/documents/2020/pdf/HB/1500–1599/HB1521SG.pdf, expanding excuses to include being subject of “a physician-imposed quarantine due to COVID-19 during the year 2020,” or caring for one who is subject to the same. TN: Tenn. Code § 2–6–202(a)(3), Fisher v. Hargett, 604 S.W.3d 381 (Sup. Ct. Tenn. 2020), holding that persons with underlying medical or health conditions that make them particularly susceptible to contracting Covid-19 or who are at greater risk should they contract it, and their caretakers, are eligible to vote absentee by mail for the November 3 election. TX: Tex. Elec. Code § 82.001–82.004. -
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IN: Tully v. Okeson, No. 1:20-cv-1271 (S.D. Ind.), No. 20–2605 (7th Cir.). LA: Harding v. Edwards, No. 3:20-cv-495 (M.D. La.). MS: O’Neill v. Hosemann, No. 3:18-cv-815 (S.D. Miss.); Parham v. Watson, No. 3:20-cv-572 (N.D. Miss.). TN: Demster v. Hargett, No. 20–0435-III (Tenn. Chancery Ct., Davidson Cnty.); Fisher v. Hargett, No. M2020–831-SC-RDM-CV (Sup. Ct. Tenn.); Memphis A. Phillip Randolph Institute v. Hargett, No. 3:20-cv-374 (M.D. Tenn.), Nos. 20–6046, 20–6141 (6th Cir.). TX: 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.), No. 2020–50407 (5th Cir.), No. 19A1055 (S. Ct.). -
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For more detailed information about pandemic-related voting litigation, see Brennan Center, Voting Rights Litigation 2020, https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020.