The largest effort in history to expand access to voting by mail is underway, with lawsuits filed in at least 16 states to ensure people can exercise their rights even during a dangerous pandemic. Political partisans and voting rights advocates alike are fighting in court to ensure every vote is counted in November and everyone who wants to vote has the opportunity.
And, in the lower courts, they’re winning.
A judge in Nashville, Tennessee, ruled in June that “the evidence does not support” the state’s argument that it would be “impossible” to drop its stringent requirements to obtain an absentee ballot during the coronavirus pandemic. With that decision, Tennessee joined the vast majority of states in allowing anyone to obtain an absentee ballot for the 2020 election.
In South Carolina, a federal district judge ordered the state to drop witness requirements for absentee ballots for its June primaries. The same happened in Minnesota. Plaintiffs in both cases are still suing to apply these changes to the November general election. In spite of opposition from President Donald Trump, who has baselessly claimed that voting by mail will lead to mass fraud even though he and top allies have voted by mail this year and in years past, there is infinitesimal evidence of mail-in voting fraud.
“The current times we are in, where voting in person can pose a significant threat to your health, denying vote-by-mail is unconstitutional,” said Danielle Lang, a voting rights lawyer with the Campaign Legal Center. “It is not a convenience.”
The vast majority of the vote-by-mail lawsuits have been brought by Democratic Party lawyer Marc Elias through the party-linked nonprofit Priorities USA and on behalf of other groups. Elias has been involved in vote-by-mail lawsuits in 14 states so far in 2020. Voting rights groups including the American Civil Liberties Union, Southern Poverty Law Center, NAACP Legal Defense Fund, League of Women Voters and Campaign Legal Center have also filed suits in states including Alabama, Arkansas, Kentucky, Minnesota, Missouri and Tennessee, among other places. A voting rights team at the law firm Arnold & Porter is also engaged in Michigan and Pennsylvania.
To expand voting access, challengers are focusing on a handful of laws they argue are unconstitutional barriers to the right to vote during the pandemic. They include ballot return deadlines, signature matching rules, witness or notary signature requirements, the lack of prepaid postage, and restrictions on the ability of third parties to collect mail-in ballots and return them en masse.
While lower courts are knocking down mail-in voting barriers in state after state, the U.S. Supreme Court so far appears disinclined to follow suit. In April, the court’s five conservatives rolled back a lower court’s extension of absentee voting in Wisconsin. Then, on July 2, the conservative justices stopped a lower court’s ruling from going into effect in Alabama that would have extended early voting and dropped mail-in voting restrictions like the witness requirement. In both cases, the four liberal justices dissented.
The most common litigation is happening over ballot return deadlines, the one area of the law where the Supreme Court has already accepted some changes. In many states, mail-in ballots must be returned by election day, or sometimes even before, to be counted. But this routinely punishes voters whose ballots may have been postmarked prior to election day, but did not arrive in time to be counted.
“The deadline is the single biggest threat of disenfranchisement for voters,” said Dan Jacobson, a lawyer at Arnold & Porter. “Because frankly it’s not their fault the local election officials don’t have the capacity to process the number of applications in the timely manner needed based on that deadline.”
Ballots Left Uncounted
In a recent primary election in Florida, 18,000 mailed ballots were not counted ― many likely because they arrived after the 7 p.m. election day return deadline. Thousands of ballots cast in Pennsylvania’s June primary that arrived after the state’s election day return deadline were eventually counted after Gov. Tom Wolf (D) issued an order extending the deadline for certain counties. But other ballots returned late in counties not subject to Wolf’s order were not counted.
The problem of uncounted ballots stems from the flood of absentee and mail-in ballot requests due to the pandemic, Jacobson noted. More people than ever are requesting ballots, but in almost every locality across the country, election offices are too understaffed and underfunded to handle this flood. And Congress has only appropriated $400 million to help election officials fix this issue before Nov. 3. Democrats requested $4 billion, but Republicans refused.
Officials in Pennsylvania were still sending thousands of ballots out the day before the state primary election, even though ballots had to be returned the next day. The same problem emerged in primary elections in Georgia, Maryland, New York and Washington, D.C. Voters who requested mail-in ballots but never received them were forced to head to the scaled-back in-person polling locations. This problem was so bad it created massive lines lasting up to seven hours in some places.
The Supreme Court had not said much about this issue until it stepped in ahead of the April 7 Wisconsin primary and shut down a lower-court-ordered extension of voting beyond election day. While the court’s 5-4 ruling largely cut against voting rights, it did order Wisconsin to change its election day ballot-return deadline to count all ballots postmarked by election day and received up to one week afterward. The ruling allowed more than 80,000 ballots to be counted that otherwise would not have been.
This new precedent is now being cited in lawsuits to extend ballot deadlines in states across the country. Already, the deadline has been extended through legal settlement orders in Arizona and Minnesota for those state’s primary elections. Lawsuits continue to push for changing the receipt deadline for the general election in multiple states.
Voters Versus The ‘Whims Of Untrained Pseudo-Handwriting Experts’
Another reason many mail-in ballots were not counted in this year’s pandemic-plagued primaries is because officials ruled in thousands of cases that the voter’s signature on the ballot did not match their signature on file or was otherwise incomplete.
The signature match is a key tool states use to ensure against voter fraud. But some states do not allow a voter to correct their signature if an election official rules it does not match, or to correct any other possible error on their ballot. This can cause significant problems for people with disabilities or other impairments that affect their signature. Their stories are seen in the lawsuits challenging states that do not allow voters to correct their signature if it is rejected.
Linda Lewis, a 73-year-old Waco, Texas, resident, has undergone multiple eye surgeries to repair impaired vision caused by a cornea disease, resulting in variations to her signature. Madison Lee, a 23-year-old Austin, Texas, resident, has juvenile rheumatoid arthritis affecting her hands. Maria Romo, a 53-year-old resident of North Dakota who has multiple sclerosis, had her ballot rejected in 2018 when election officials ruled her signature did not match.
Lewis and Lee are part of an ongoing lawsuit led by Elias challenging Texas’ lack of a law allowing voters to cure their ballot if their signature is rejected. Romo is party to a Campaign Legal Center lawsuit that has temporarily succeeded in forcing North Dakota to alert voters if their signature is rejected and allowing them time to correct it.
Another problem with signature matching is the lack of standards and training provided for the officials who do the matching. In the North Dakota case, the judge who ruled that the state’s signature matching system amounted to “outright disenfranchisement” determined that officials “receive no training in handwriting comparison” and “do not receive guidance on signature matching beyond the basic statutory requirements.”
“You have voters whose ballots are at the whims of untrained pseudo-handwriting experts making judgments when they have no credibility to do so,” Lang said. “Even highly trained experts are highly dubious in courts. Lay people have no ability to discern what are normal variations in signatures versus a forger.”
At least one study has found that the signatures of Black, Hispanic and younger voters are rejected at a disproportionately higher rate.
In addition to the voter’s own signature, many states require the voter to get a witness or a public notary ― or in the case of Oklahoma, both ― to observe and sign their mail-in ballot. That can be a challenge for many people who do not wish to expose themselves to the virus.
During Wisconsin’s April 7 primary, for example, one voter contacted the state Democratic Party because she was sick with COVID-19 and did not know anyone else who was similarly ill or tested positive for antibodies who could help her. Milwaukee-based state Rep. David Bowen had COVID-19 antibodies and went to witness her ballot on election day. But not everyone is so lucky to have a state representative with antibodies who can come to their doorstep.
Litigation is already bearing fruit, at least for still-to-come primary elections. The Minnesota secretary of state’s office entered into an agreement that came from a lawsuit that would drop the state’s witness requirement for its August primary elections. A judge in Alabama ruled that the state must drop the witness requirement for its July 14 primary.
‘Community Ballot Collection’ To Some, ‘Ballot Harvesting’ To Others
Perhaps the most controversial vote-by-mail legal challenges are those regarding third-party ballot collection. The practice of third parties collecting completed mail-in ballots from voters and delivering them in bulk to election offices has been called community ballot collection by Elias and others, but is also known derisively as ballot harvesting by Republicans like Trump.
“Get rid of ballot harvesting, it is rampant with fraud,” Trump tweeted on April 14.
Trump and Republicans, including House Minority Leader Kevin McCarthy (R-Calif.), have either outright asserted or suggested that Democratic Party victories in California are driven by fraud. Their evidence is simply that the state passed a law in 2016 that allows third parties not related to the absentee voter to collect absentee ballots and return them. Many absentee ballots are returned late and are counted after election day.
“We had seven elections for Congress [in 2018] and they were, like, tied, and they lost every one of them because they came and they dropped a whole pile of ballots on the table,” Trump said on May 28.
While there is no evidence of Trump’s allegations of fraud committed by Democrats in the California elections, there was a major case of ballot collection fraud by a Republican congressional candidate in a North Carolina election. The candidate, Mark Harris, hired a consulting firm that illegally collected unfinished absentee ballots and filled them out in support of his candidacy. Only completed and sealed ballots can be legally collected. Harris’ election was overturned.
Lawsuits from voting rights groups and Democratic Party-linked organizations in Arizona, Minnesota, Montana, Nevada, North Carolina and Pennsylvania seek to overturn state bans or limits on third-party ballot collection.
In January, even before the coronavirus pandemic spread widely in the U.S., the 9th Circuit Court of Appeals overturned Arizona’s ban on ballot collection. The court’s majority opinion determined the ban violated the Voting Rights Act and placed undue burdens on minority voters. The state’s attorney general, a Republican, has asked for the Supreme Court to review the case.
The lawsuit in North Carolina targets the state’s ban on ballot collection passed in the wake of the Harris scandal.
But Republicans are also filing suit against vote-by-mail and ballot collection laws. The Trump campaign is suing Pennsylvania to stop counties from operating drop-off boxes where voters can deliver their absentee ballots. The Republican National Committee sued California Gov. Gavin Newsom (D) to block his order to mail all active voters an absentee ballot. The party has also intervened in the Florida case brought by Elias to defend the state’s limits on third-party ballot collection.
Legal obstacles to voting by mail are not the only problems for voting rights during the pandemic. Many of these suits were filed as states delayed their primary elections during the early months of viral spread. Since then, voting rights advocates have witnessed the problems voters have faced as states and counties reduced the number of polling sites due to poll worker shortages and fears about the virus.
A second wave of lawsuits, focusing on this issue, is expected. Elias signaled as much in a June 18 blog post: “If the politicians fail to act, we must demand the courts step in to solve this problem and protect voters.”