Voting During Covid-19

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.¹

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).²
• Three states did so by legislation (MA, MS & NY).³
• Two states did so as a result of litigation (MN & PA).⁴

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.⁵

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.⁶ 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,⁷ KY, MS, NC, ND, NJ, NY & VA. 

• Two states did so via legislation (NJ, VA).⁸
• Five made the change as a result of litigation (IN, MS, NC, ND & NY).⁹
• One did so by executive action (KY).¹⁰

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.¹¹

Four states have not allowed any form of early voting in person during the November 2020 election. They are CT, MO, MS & NH.¹²

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).¹³ 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).¹⁴
• Nevada did so through legislation.¹⁵

An additional state, Montana, has given counties the option of automatically mailing absentee ballots to all active, registered voters.¹⁶

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.¹⁷ Alaska has sent ballot applications to all active, registered voters aged 65 and older.¹⁸

• Eight of the eleven states changed their practice by executive action (CT, IA, MD, MI, NE, OH, RI & WI).¹⁹
• Three did so by legislation (DE, IL & MA).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.²¹

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.²²

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).²³ New Jersey’s executive order was later codified legislatively.
• Three states did so by legislation (MA, MD & VA).²⁴

Absentee ballot postage related lawsuits are currently pending in GA, MI, NC, NY, OH, OK & TX.²⁵

Changes to Voting Laws & Procedures, Generally

As a result of the pandemic, 35 states and Washington, D.C. have made substantive changes²⁶ 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.²⁷

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.²⁸

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.²⁹

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.³⁰

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.³¹

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);³²
• 6 states did so by legislation (CT, DE, MA, MO, NY & SC).³³

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.³⁴ Excuse-related litigation is pending in all of those states.³⁵ 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.³⁶ 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.