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The Canvass | September 2020

August 31, 2020

Elections Go to Court

Elected officials often look like the most partisan people in the elections world. This year, however, that description may more accurately belong to the lawyers who duke it out on behalf of political parties.

Amid the COVID-19 pandemic, a wave of election changes emerged to expand, regulate and/or secure absentee and mail voting options. But those changes have had a rocky reception, culminating in an election season characterized by litigation as it is by campaigning and getting out the vote.

Expand mail/absentee voting? Get sued. Don’t expand mail/absentee voting? Get sued.

The policy positions generally fall along party lines, with Democrats suing to expand absentee voting options, and Republicans suing to maintain current policy or roll back newly implemented changes.

Nearly all aspects of absentee/mail voting have come under fire, though most litigation has centered on four flashpoints: all-mail elections, absentee ballot eligibility and applications, witness requirements, and how ballots can be returned. In fact, many lawsuits touch on more than one of these issues, though we address each topic separately below.

All-Mail Elections

Five states—Colorado, Hawaii, Oregon, Utah and Washington—currently employ all-mail voting, where every registered voter receives a ballot in the mail. Lawmaker and voter interest in mail voting increased during the primaries as a way to give voters the option to avoid in-person voting if they feared contracting COVID-19. In addition to the five all-mail states, seven states mailed ballots to all registered voters during the primaries: Alaska (Democrats only), Maryland, Montana (counties’ choice; all opted in), Nevada, New Jersey and Wyoming (Democrats only).

California, Nevada, New Jersey and Vermont all plan to mail ballots to all voters for the 2020 general election, while not making the change permanent. These changes, though, have been met with some resistance. In California, the Republican National Committee (RNC) sued Governor Gavin Newsom (D) after he issued an executive order implementing statewide mail voting, arguing that the order usurped the state legislature. When the legislature passed a nearly identical law, the RNC voluntarily dismissed the case.

Nevada and New Jersey both remain embroiled in active litigation with President Donald Trump’s campaign. Shortly after New Jersey Governor Phil Murphy (D) issued an executive order requiring an all-mail election in November, the president’s campaign filed a complaint alleging violations of the Elections and Electors Clauses of the U.S. Constitution, the 14th Amendment and various federal statutes.

In Nevada, Trump’s campaign, along with the RNC and the state Republican Party, sued the Republican secretary of state on the basis that newly enacted legislation does not require uniform standards for processing and counting ballots and allows election officials to accept mailed ballots without postmarks if they are received by 5 p.m. on the third day after an election.

Absentee Ballot Eligibility and Applications

Sixteen states require an excuse to use an absentee ballot, though 10 of those states have temporarily waived excuse requirements or authorized COVID-19 as a valid excuse for the November election.

The six states that have not expanded eligibility requirements for absentee voting are facing litigation led by individual voters and state Democratic parties. Indiana, for example, is being sued over the state’s absentee ballot policies, which do not allow voters to use COVID-19 concerns to request an absentee ballot and which restrict absentee voting to certain categories of voters, such as those over a certain age.

Similar lawsuits are active in Louisiana, Mississippi, South Carolina, Tennessee and Texas.

To increase the use of absentee ballots, some states are opting to mail absentee ballot applications to registered voters, after several states took this novel approach during the primaries. This option has been a source of contention, as well. The Disability Law Center of Alaska is pursuing a lawsuit against the state for mailing absentee ballot applications only to voters over age 65. In Illinois, the Cook County Republican Party has sued the state for passing a law that requires absentee ballot applications be sent to most registered voters.

Witness Requirements

If a person is quarantined or self-isolating, it may be hard to find a witness, so some states have opted to loosen witness or notary requirements for absentee or mail ballots. In Minnesota, for example, individual voters and the Minnesota Alliance for Retired Americans Educational Fund sued the North Star State over two laws requiring witness signatures on absentee ballots. In a June consent decree, Minnesota agreed not to enforce the laws in 2020. Rhode Island similarly agreed to suspend witness/notary requirements after Common Cause and the League of Women Voters brought suit; the RNC’s motion to overturn the consent decree was denied by the U.S. Supreme Court.

Alabama is being sued over witness requirements (as well as photo ID requirements for absentee ballot applications), while Missouri faces a suit against the state’s notary requirement. Witness requirements are also being challenged by the American Federation of Teachers in New Hampshire, the League of Women Voters in North Carolina, the Democratic Congressional Campaign Committee and state Democratic Party in Oklahoma, the state Democratic Party and Democratic National Committee (DNC) in South Carolina, the League of Women Voters in Virginia (partially settled) and the state Democratic Party and DNC in Wisconsin.

Returning Ballots

In most states, voters must pay a ballot’s return postage. Seventeen states, however, require local election officials to provide return postage for mailed ballots, and New Jersey leaves it to the discretion of county clerks.

Several states that don’t prepay return postage for voters faced lawsuits. In Georgia, for example, Black Votes Matter Fund challenged the requirement that voters must pay postage to return absentee ballots and ballot applications, arguing that it constitutes a poll tax. Although part of the case was dismissed, the part concerning voters who cannot afford postage will move forward. Georgia also faces another suit, brought by the New Georgia Project, on the same postage issue.

These challenges have come mostly from the left, and more are underway in Maine, New Hampshire, Oklahoma and South Carolina, often as part of lawsuits challenging multiple election laws.

Issues have also arisen over receipt deadlines for ballots and whether those received after the polls close must be discarded—often due to a mismatch between state and U.S. Postal Service deadlines. In general, left-leaning groups have sued over Election Day receipt deadlines (see lawsuits in Georgia, Minnesota, Montana, New Hampshire and South Carolina), while right-leaning groups have sued over later deadlines that allow ballots to come in after Election Day in Illinois and Nevada.

Other Issues

Democrats sued Arizona for its lack of a signature cure process, Georgia for providing an insufficient number and distribution of polling places, Montana for prohibiting people from collecting others’ ballots unless the situation falls into one of six exemption categories and Oklahoma for imposing criminal penalties on anyone who helps a voter obtain an absentee ballot.

As part of their challenge to Illinois's decision to mail absentee ballot applications, Republicans also sued the state for giving government employees a paid holiday on Election Day and allowing 16-year-olds to serve as election judges. They are also pursing litigation in Pennsylvania that challenges the state’s new vote-by-mail law, which allows voters to return absentee and mail-in ballots at locations other than a county’s board of elections and disallows poll watchers at ballot return locations.

And, of course, the battle over felon voting rights continues in Florida. After voters approved a ballot measure restoring the right to vote to people with felony convictions, the legislature enacted a law making the restoration of rights contingent upon the payment of fines, fees and restitution. That law in turn prompted a lawsuit arguing that it imposes an illegal poll tax. The issue has been in the courts for months, and a ruling from the 11th U.S. Circuit Court is expected before November.

What Next?

Despite nearly 6,000 legislative seats up for reelection and the fact that many of the winners will have a hand in redistricting, the story so far of this upcoming election is litigation. "There is an avalanche of voting litigation this year," notes legal scholar Nate Persily, and "we should expect 2020 to break records in terms of the number of election-related lawsuits that are filed."

We don’t know how everything will shake out—and however it goes, it’s bound to be messy—but we’re here to help.

From the Chair

We spoke with Georgia Representative Shaw Blackmon (R) this month. He has represented District 146 in central Georgia since 2015. This interview has been edited for length and clarity.

How did you get selected to chair theHouse Committee on Governmental Affairs?

I’ve been chair for less than a year, but I was previously the secretary of this committee and the chair of the transportation subcommittee. When the longtime Governmental Affairs chair, Rep. Ed Rynders, decided to leave the legislature, the speaker asked if I’d be willing to move into this role.

What are the current election administration priorities for you and Georgia?

At the moment, we’re looking into some of the problems that we ran into on June 9 [the date of Georgia’s rescheduled presidential and state primaries].

We were basically implementing two new voting systems in June: new ballot marking devices andwidespread vote-by-mail. Previously, vote-by-mail was only used by about 5% of the voting population. So, we had resources in place to handle three weeks of in-person early voting, in-person Election Day voting and a certain number of absentee ballots. But we ended up having fewer resources—especially fewer poll workers—and needing to reallocate them after people decided to vote in other ways. We saw the fallout from that, but we also had a lot of people working very hard.

The state has done a lot to improve what was a tough day on June 9, and it will be better in November.

As you mentioned, Georgia’s primary had some hiccups, but the primary runoff went smoothly. Thoughts on what changed?

During the primary, we had a confluence of challenging issues—COVID-19, a delayed election, new ballot marking devices and the secretary of state decided to mail absentee ballot applications to all active voters for the first time. Plus, fewer longtime poll workers were willing or able to work. Those that did work had limited training on the new devices. By the time of the runoff, people were more familiar with the new machines.

Georgia has gotten a lot of press, good and bad, for replacing its voting equipment. Now that it’s done, do you have advice for other states who must make that expensive but important choice?

Don’t change in the middle of a pandemic! There’s a learning curve, and my suggestion is to train and retrain and retrain. The more training and modeling practice runs that can be done, the better.

The new equipment was provided for in last year’s budget when we passed HB 316. We had an intense debate about whether to go with ballot marking devices or hand-marked paper ballots. There was enough of a consensus that we use ballot marking devices, so we budgeted for it and the secretary of state had a selection process and found a vendor for us.

What aspect of Georgia’s elections are you most proud of?

In my short time chairing the committee, I’ve had the opportunity to receive testimony from people who work elections across the state and to talk one-on-one with folks who’ve been doing this work for a long time.

Their dedication and commitment really impress me. I’ve learned a whole lot from great folks who’ve dedicated a lot of time over the years to ensure that the elections in their communities run smoothly.

Which states allow voters to return absentee/mail ballots at drop boxes?

A drop box is a location where voters can return absentee/mail ballots in sealed and signed envelopes. Drop boxes may be supervised or unsupervised with security features such as cameras. Eight states—Arizona, California, Colorado, Hawaii, Montana, New Mexico, Oregon and Washington—have statutory provisions for drop boxes.

States and jurisdictions may not need explicit laws addressing drop boxes to use them, and our team is aware of at least 24 states where at least one jurisdiction plans to employ drop boxes for the November 2020 election.

For more information about drop boxes, see Table 9 from our Voting Outside the Polling Place report and drop box guides from the U.S. Election Assistance Commission and the Elections Group.

Worth Noting

New and Updated NCSL Resources

We have created a new polling places resource and refreshed our election emergencies page. Recent publications include blog posts on women’s suffrage, messaging for constituents, answering voter questions and a magazine story on how recent changes at the U.S. Postal Service affect election administration. If you are looking for something lighter, check out the recently relaunched American Democracy Game, which makes learning civics fun.

CTCL Announces COVID-19 Response Rural Grants Program

The Center for Tech and Civic Life will award grants to five rural Wisconsin cities to implement safe elections in November. The grants total $6.3 million and will be available to local election offices in qualifying jurisdictions, either at the county or municipal level.

USPS Launches New Election Mail Website

The focus of increased attention due to its role in elections, the U.S. Postal Service has launched a new election mail website. The new resource includes information tailored to voters, military members and overseas citizens, and election officials.

Maine Expands Access for Visually Impaired Voters

Maine will make changes to its voting systems following a lawsuit filed in June alleging the state violated the Americans with Disabilities Act and other laws by not offering methods for visually impaired people to vote safely during the COVID-19 pandemic. As part of the settlement, the state will work with vendors to provide absentee ballots to voters through an electronic ballot available online.

Signature Verification and Mail Ballots

Stanford’s Law and Policy Lab, led by elections expert Nathaniel Persily, has published a new report on signature verification and mail ballots. The report focuses on the implementation of California’s recent Every Vote Counts Act and includes interviews with 33 county election officials and experts, including Charles Stewart and Judd Choate.

Google Launches Updated 2020 Voter Tools

In advance of the upcoming elections, Google has launched an updated set of voter tools designed to provide authoritative information and connect people to the democratic process. The new features include details on how to register and how to vote. The project is supported by partnerships with the nonprofit Democracy Works and other organizations.

Upcoming Webinar From the National States Geographic Information Council

The National States Geographic Information Council is hosting a webinar on geo-enabled elections on Wednesday, Sept. 2, at 1 p.m. ET. Hear from two states and one county that used GIS to remove inaccuracies from their voter information in advance of the November election. Also, Benjamin Hovland, chairman of the U.S. Election Assistance Commission, will address how data inaccuracy problems can be mistaken for cybersecurity issues—and offer strategies for telling the two apart. Register here.

Monthly Cybersecurity Update

The federal Cybersecurity and Infrastructure Security Agency has released a new infographic on security risks surrounding mail-in voting. The report notes that all forms of voting involve security risks and recommends policies to manage the risks involved with mail voting. Recommendations include using intelligent mail barcodes and setting the expectation that results in many races may take longer than voters normally expect.

Anheuser-Busch Donates Hand Sanitizer to Polling Places

In support of its “Brew Democracy” initiative designed to increase political participa­tion and bring the nation’s political leaders together, Anheuser-Busch is producing and donating more than 8 million ounces of hand sanitizer to polling locations across the country. In coordination with the National Association of State Election Directors, the National Association of Secretaries of State and the Cybersecurity and Infrastructure Security Agency, the brewing giant will distribute the sanitizer to state election offices to help ensure voter and poll worker safety throughout the election process.

From the NCSL Elections Team

NCSL is hard at work as November approaches, preparing for more virtual events. The elections team will host events on digital ads, campaign finance and lessons learned from the primaries. NCSL will offer a new three-day online experience, Base Camp 2020, Sept. 15-17. The event will feature speakers including Deborah Birx, the White House coronavirus coordinator; Arne Duncan, a former U.S. education secretary; and movie star Chris Evans, who’s launched a new civic engagement website. Our portion includes political analysis on the federal scene from Amy Walter and on the states from our own Tim Storey and Mandy Zoch, plus “Elections: What to Expect When the Unexpected Happens.” Join us.

And f you have any questions or something we need to know, please get in touch.

—Wendy Underhill, Brian Hinkle and Mandy Zoch

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