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Voting During Covid-19

A comparison of policies and changes as a result of Covid-19

Last Updated: November 20, 2020
Published: November 2, 2020
Voters cast their ballots in person on Election Day.
ROBYN BECK/Getty

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_unzqm16 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.

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.

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_r62rpqy 5 See 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_mi8flzr 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.  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_s4lx4h6 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.  KY, MS, NC, ND, NJ, NY & VA. 

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_e4hscft 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.

Four states have not allowed any form of early voting in person during the Novem­ber 2020 elec­tion. They are CT, MO, MS & NH. foot­note12_btsqlfm 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.

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_fb5xyem 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.  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. 

An addi­tional state, Montana, has given counties the option of auto­mat­ic­ally mail­ing absentee ballots to all active, registered voters. foot­note16_umjjm1g 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.

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_pgb491i 17 NMSA 1–12–72(D).  Alaska has sent ballot applic­a­tions to all active, registered voters aged 65 and older. foot­note18_pod43ao 18 See https://www.alaskapub­lic.org/2020/06/21/state-will-mail-absentee-ballot-applic­a­tions-to-seni­ors-crit­ics-say-that-suppresses-young-minor­ity-votes/.

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_hanc­qr3 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.

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_kwa27oo 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.

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.

Absentee ballot post­age related lawsuits are currently pending in GA, MI, NC, NY, OH, OK & TX. foot­note25_zpzm­qmx 25 See 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 changes foot­note26_kgt28o3 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).  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_6dljggb 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.

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_lejq2a7 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.

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_hl25p4f 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.

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_rccs22k 30 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.

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_d8z1p4j 31 See 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:

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_2ma68tc 34 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.  Excuse-related litig­a­tion is pending in all of those states. foot­note35_9zbzt2z 35 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.).  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_6lzdg36 36 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.  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