Voting Rights Roundup: Congress' massive rescue package doesn't do enough to protect voting in November

Election experts have widely recommended that Congress use its authority to immediately require and fund the switch to extensive voting by mail (at least in federal elections) as a way to guarantee that elections still go forward and are conducted in a manner that minimizes potential exposure to the virus among voters and election workers. However, it will take time, effort, and organization to ensure that states can effectively implement such policies, and related measures will be necessary to ensure mail voting doesn’t disenfranchise anyone. This is why Congress must act as soon as possible.

Congressional Republicans, who've long been hostile to voting rights, strongly opposed provisions to make it easier to vote. Democrats can still try to reach a future compromise by agreeing to make these provisions temporary emergency measures rather than, as Pelosi envisioned, enshrining them into law permanently. By doing so, Democrats can demonstrate to the public that they are acting in good faith and not taking advantage of a crisis for alleged partisan gain.

Furthermore, because Republican-leaning states are least likely to make it easy to vote by mail as shown on the map at the top of this post (see here for a larger version), and because the GOP's elderly voter base is most at risk of serious illness, it's in Republicans’ own interest to ensure that voters have alternatives to in-person voting this year. Indeed, even Republicans in red states such as Ohio, Indiana, and Montana have called for a switch to mail voting.

Regardless, Democrats must make these voting provisions a red line that cannot be crossed when it comes to supporting any future stimulus package. With the economy in free fall and Trump's re-election chances dropping along with it, Republicans realize that it's in their immediate partisan interest to stabilize our economic situation. Because of that, Democrats hold tremendous leverage.

Democrats must therefore hold the line and demand that any further stimulus measures include these voting provisions to ensure our elections can go on. Donald Trump lacks the power to postpone the November elections, but they could become a catastrophe if millions of voters are unable to vote. As Congress fights to resolve our public health and economic crises, it must also act to avert a constitutional crisis.

ELECTION CHANGES

The following states have recently moved their primaries for various positions from the presidency down to local office:

• Delaware: from April 28 to June 2 (presidential) and from May 12 to June 16 (school board)
• Massachusetts: from March 31 to May 19 and June 2 (special elections)
• Ohio: from March 17/June 2 to April 28 (presidential and downballot)
• Pennsylvania: from April 28 to June 2 (presidential and downballot)
• Puerto Rico: from March 29 to April 26 (Democratic presidential)
• Rhode Island: from April 28 to June 2 (presidential)

You can stay on top of all changes to statewide primary dates by bookmarking our 2020 calendar.

● Alaska: Alaska's Republican-run state Senate has unanimously passed a bill that would allow Republican Lt. Gov. Kevin Meyer to order that the state's Aug. 18 downballot primaries be conducted entirely by mail. (The lieutenant governor is Alaska's chief election official.) However, Republicans blocked an attempt by Democrats to require that the state provide dropboxes where voters can return their ballots, an option that is very popular in states that have adopted universal voting by mail, in part because it obviates the need for a postage stamp and avoids the risk of delayed mail return service.

The bill now goes to the state House, which is controlled by a Democratic-led coalition that includes Republicans and independents. The Alaska Daily News says that Republican Gov. Mike Dunleavy is "expected" to sign the measure "speedily" if both chambers pass it.

Alaska Democrats have also canceled in-person voting for their April 4 presidential primary and will instead extend the deadline by which absentee ballots must be received to April 10 (previously, ballots had to be postmarked by March 24). Ballots have already been mailed to 71,000 voters, but voters can also download a ballot from the party's website.

● Arkansas: Officials in Arkansas have announced that they will not postpone the state's March 31 runoffs, making it the only state in the nation still set to conduct primary elections in the month of March. While no congressional or statewide elections will host runoffs, 12 counties that make up about 30% of the state's population will do so for local races. Administrators say they have reduced the number of polling locations and are encouraging voters to cast ballots absentee. While Arkansas normally requires an excuse to vote absentee, the state's Board of Election Commissioners has said all voters may request absentee ballots for the runoffs due to the coronavirus.

Separately, the NAACP filed a federal lawsuit on Friday seeking to count ballots that are postmarked by Election Day so long as they are received no more than 10 days later; currently, the state disqualifies all ballots not received by Election Day. The plaintiffs argue that the current deadline illegally discriminates against black voters.

● California: Democratic Gov. Gavin Newsom has ordered that all voters be sent mail-in ballots for the May 12 special election taking place in California's 25th Congressional District. A small number of in-person polling sites will remain open to assist voters who need help in casting ballots.

● Delaware: Democratic Gov. John Carney has issued an order allowing all voters in the June primary to request an absentee ballot (Delaware is one of 17 states that requires an excuse to vote absentee).

● Georgia: Republican Secretary of State Brad Raffensperger says his office will send absentee ballot application forms to all active Georgia voters for the state's May 19 presidential and downballot primary, a plan that officials had previously floated. Voters will still need to return the forms (which are not postage-paid) in order to receive a ballot.

● Hawaii: Hawaii Democrats have canceled the in-person portion of their April 4 presidential primary, which was set to be conducted mostly by mail to begin with. To compensate, the party will mail out a third round of ballots to voters.

● Idaho: Republican Secretary of State Lawrence Denney's office has announced that voters may now request absentee mail ballots online after Democrats had called on the state to give voters this option as an alternative to mailing in their requests.

● Indiana: Indiana's bipartisan Election Commission has unanimously waived the state's requirement that voters who wish to vote absentee in June's presidential and downballot primaries provide an excuse in order to do so.

● Iowa: Republican Secretary of State Paul Pate is allowing absentee voting for Iowa's June 2 downballot primaries to begin on April 23, 11 days earlier than the statutory May 4 start date. Before the passage of a voter ID bill in 2017, this 40-day absentee period was the law in Iowa. Pate also postponed three elections for local office until July 7.

● Maryland: Maryland's Board of Elections is recommending to GOP Gov. Larry Hogan that the state's June 2 presidential and downballot primaries be conducted entirely by mail, with all voters receiving a mail-in ballot and in-person voting completely eliminated. That last provision could result in a lawsuit, because federal law requires states to make voting accessible for people with disabilities, and not all voters are able to cast ballots by mail.

In fact, in the board's discussion of the April 28 special election in Maryland's 7th Congressional District, which will be conducted by mail, one board official even noted that state law requires election administrators to offer in-person voting to comply with the Americans with Disabilities Act. However, according to the board's website, there will be no in-person voting for the special election.

● Massachusetts: Republican Gov. Charlie Baker has signed a bill that gives towns the ability to reschedule any local election that was set to take place by May 30 to as late as June 30. The measure also allows all voters to request an absentee mail ballot for these elections (Massachusetts normally requires an excuse to vote absentee).

● Michigan: Democratic Secretary of State Jocelyn Benson says that she will send postage-paid absentee ballot applications to all voters able to participate in Michigan's May 5 local elections. Voters will still need to return the applications in order to receive a ballot, but they can also check a box that allows them to permanently receive an absentee ballot application in all future elections. Benson also says that her office will help local governments ensure that postage-paid return envelopes are included with any ballots.

● Minnesota: Democratic Secretary of State Steve Simon says that Minnesota is considering the possibility of conducting all voting by mail for its "2020 statewide elections," which presumably would include both the state's Aug. 11 downballot primaries and the November general election. As an alternative, Simon says officials may encourage voters to cast absentee ballots, a method that almost a quarter of the state used in 2018.

● Missouri: Republican Secretary of State Jay Ashcroft says that the possibility of relaxing Missouri's excuse requirement to vote absentee by mail is "on the table," though he indicated that such a change would require action by the GOP legislature. Ashcroft also sounded largely opposed to the idea of holding elections entirely by mail.

● Montana: Following requests from officials in both parties, Democratic Gov. Steve Bullock has told county election officials that they may conduct the state's June 2 presidential and downballot primaries almost entirely by mail. Voters would be sent ballots with postage-paid return envelopes, and they'd also be able to vote in person during the state's early voting period, which runs for 30 days leading up the primary.

● Nebraska: Republican Secretary of State Bob Evnen now says that all Nebraska voters will be sent an absentee ballot application ahead of the state's May 12 presidential and downballot primaries; previously, only some counties were planning to do so.

● Nevada: Republican Secretary of State Barbara Cegavske and local election officials from all 17 Nevada counties have announced plans to conduct the state's June 9 downballot primaries almost entirely by mail. Every active registered voter will be sent a postage-paid absentee ballot that they can return by mail or at an in-person polling site, of which each county will have at least one. Importantly, these voters will not have to request a ballot.

Ballots must be postmarked or turned in by Election Day, though they will still count as long as they are received up to seven days later. Officials will also contact any voter whose ballot has an issue (such as a missing signature), and voters will have until the seventh day after the election to correct any problems. Cegavske's press release wisely cautions that, under this system, final election results will not be known until well after election night, though this is a point that officials across the country will have to emphasize loudly and repeatedly as mail voting becomes more widespread.

One potential issue with Cegavske's plan, though, is that registered voters who are listed as "inactive" on the voter rolls will not be sent ballots. However, as voting expert Michael McDonald notes, these voters are still eligible to vote, and every election, many do. While they can still request absentee ballots on their own, they now face an obstacle that active voters will not. Approximately 14% of Nevada's 1.8 million registered voters are on inactive status.

● New Mexico: Democratic Gov. Michelle Lujan Grisham reportedly plans to call a special session of the legislature (which is run by Democrats) to address emergency responses to the coronavirus, including the possibility of moving to all-mail elections this year. Democratic Secretary of State Maggie Toulouse Oliver says that she and other election officials are also looking into the matter, though she says she believes it would take an act of the legislature to switch to a fully vote-by-mail system.

● New York: Democratic Attorney General Tish James has asked Gov. Andrew Cuomo, a fellow Democrat, to issue an executive order mandating that all New Yorkers be sent mail-in ballots so that they can vote from home in New York's April 28 presidential primary. A special election for the state's vacant 27th Congressional District is also set for that date.

Democratic Assemblyman Jeff Dinowitz has also introduced a bill that would allow all voters to request an absentee ballot due to the coronavirus, since New York still requires an excuse to vote absentee and can't outright repeal that requirement before 2022. Cuomo has said he's looking into whether he can expand absentee access under his own authority, or whether legislative action is required.

Meanwhile, Democratic state Sen. Jen Metzger has introduced a bill that would enable universal mail voting amid public health crises. Were the bill to become law, every voter would be sent a ballot for the state's June 23 downballot primaries.

● North Carolina: North Carolina's Board of Elections has asked Democratic Gov. Roy Cooper and the Republican-run legislature to make a number of changes that would make absentee voting easier. The board's recommendations include:

• allowing voters to request absentee ballots online, or to return applications via email or fax;
• relaxing the state's requirement that absentee ballots be witnessed by two people or a notary, either by reducing the requirement to one witness or eliminating it entirely;
• having the state provide postage-paid return envelopes for absentee ballots; and
• making Election Day in November a state holiday so that a wider part of the workforce would be able to serve as poll workers.

● North Dakota: Republican Gov. Doug Burgum has signed an executive order giving North Dakota counties the option to hold the state's June 9 downballot primaries entirely by mail. The order directs the secretary of state to send absentee ballot applications to all voters, with postage-paid return envelopes.

Burgum's order also allows counties to eliminate all in-person voting sites, however, which could potentially cause serious problems on Native reservations where mail service is limited. In addition, it could run afoul of federal laws requiring that voting be accessible to persons with disabilities, though the order does specify that officials must make "at least one assistive ballot marking device" available at each county's courthouse from 40 days prior to the election through Election Day.

● Ohio: Republican Gov. Mike DeWine has signed a law that the GOP legislature unanimously passed to extend the time to vote absentee by mail in the state's presidential and downballot primaries until April 28. There would be limited in-person voting only for people with disabilities or who lack a home address, and voters would also be able to drop off absentee ballots in person on that day, but ballots would have to be mailed by April 27 and be received by May 8 in order to count. However, voting rights groups have expressed serious reservations about the plan and say they may sue.

Under the bill, the state would send postcards to voters explaining how to request an absentee ballot application. Voters would then have to print out applications on their own, or request one be mailed to them, and then mail them in—they cannot be submitted online. They would then have to mail in their absentee ballots (though these at least would come with a postage-paid envelope).

Voting rights advocate Mike Brickner notes that there is very little time left to carry out this multi-step process, particularly because each piece of mail would be in transit for several days. In addition, printing all of these materials, including the postcards that are designed to kick off this effort, will take considerable time, especially since government offices, the postal service, and print shops "may not be operating optimally," as Brickner observes. Local election officials are also opposed and say that a date in mid-May is more realistic.

● Rhode Island: Democratic Gov. Gina Raimondo has signed an executive order directing the state Board of Elections to conduct a "predominantly mail ballot" election, which Democratic Secretary of State Nellie Gorbea had previously advised. The state Board of Elections has also asked Raimondo to issue another order removing the requirement that voters have their absentee ballot notarized or signed by two witnesses. The board has also requested that voters be allowed to provide additional information in case officials say the signature on their ballot does not match the one on file.

● South Carolina: Election officials in South Carolina are weighing whether to implement excuse-free absentee voting and early voting, as well as moving to an all-mail election for the state's June 9 downballot primaries. Any changes would require an executive order by Republican Gov. Henry McMaster or action by the GOP legislature.

● Virginia: Statewide organizations representing local election officials have asked Virginia's Department of Elections to cancel in-person voting for the state's May 5 local elections and June 9 congressional primary and instead conduct them by mail. The Department of Elections has already allowed all voters to vote absentee in May's local elections but have yet to do so for June's primaries. Democratic Gov. Ralph Northam is expected to approve a bill by April 11 that would permanently remove the excuse requirement to vote absentee by mail, but it wouldn't take effect until July 1.

● West Virginia: Republican Secretary of State Mac Warner says all voters will be sent an absentee ballot application with a postage-paid return envelope ahead of West Virginia's May 12 presidential and downballot primaries. Previously, Warner effectively waived the state's requirement that voters provide an excuse to vote absentee by allowing all voters to cite the coronavirus as their reason.

● Wisconsin: On Friday, just a week-and-a-half before Wisconsin's April 7 elections, Democratic Gov. Tony Evers asked the Republican-run legislature to pass a bill sending every voter an absentee ballot. The proposal was immediately rejected, however: State Senate Majority Leader Scott Fitzgerald angrily accused Evers of "lying directly to Wisconsinites about this even being remotely possible."

Earlier this week, voting rights advocates brought a new lawsuit asking a federal judge to bar Wisconsin officials from enforcing a state law that requires voters to have a witness sign their absentee ballots. Meanwhile, election clerks in Wisconsin's two largest counties, the Democratic strongholds of Milwaukee and Dane (home of Madison), have advised voters that they do not need to upload a copy of their ID when requesting an absentee ballot online, a move aimed at helping voters who lack the necessary technological means. Republicans filed a lawsuit with the conservative-majority state Supreme Court late on Friday to stop Dane County from doing so.

In Green Bay, city officials filed a lawsuit on Tuesday asking that a federal judge order Wisconsin officials to delay the state's April 7 elections until June 2 and to extend its voter registration deadline to May 1, while a voter turnout group called Souls to the Polls filed a separate but similar federal lawsuit on Thursday. (The deadline for registering by mail has already passed, but voters can still register online through March 30 thanks to an earlier order by a different judge.) Green Bay has also asked that it be allowed to cancel in-person voting and mail ballots to all registered voters.

● Wyoming: Wyoming Democrats, who had previously canceled in-person voting for their April 4 presidential caucus, have now moved to an entirely vote-by-mail election. This means that voters will no longer be able to drop off ballots in person. In addition, the deadline by which ballots must be received has been extended to April 17 (previously, ballots had to be postmarked by March 20).

ELECTION SECURITY

● Kentucky: A committee in Kentucky's Republican-majority state House has passed a bill to require that all votes be cast via a method that produces a voter-verifiable paper trail. However, the bill does not allocate the millions in funding needed for counties to buy new voting equipment to replace paperless voting machines they're still using, and it would only require that they make the change whenever they decide to replace their current machines.

BALLOT ACCESS

● West Virginia: A federal district court has denied West Virginia's motion to dismiss a Democratic-backed lawsuit arguing that the way the state determines the ordering of how candidates appear on the ballot violates the U.S. Constitution.

State law requires that the party that won the most votes in the last presidential election in the state be listed first for all partisan offices. Because of the state's heavily Republican lean at the presidential level, that means the GOP gets listed first in all downballot races.

The plaintiffs argue that this system violates the First and 14th Amendments because candidates listed first can enjoy a boost in support that can prove decisive in a close election, particularly in downballot races where voters have much less information about the candidates than they do for the top of the ticket. Thanks to the court's ruling, plaintiffs will now have the chance to have their case decided on its merits.

VOTER REGISTRATION AND VOTING ACCESS

● Michigan: A federal district court has denied a motion to dismiss a Democratic-supported lawsuit challenging Michigan's procedures for rejecting mail ballots over problems with a voter's signature supposedly not matching. The court also allowed Republican legislative leaders to intervene as defendants (plaintiffs originally named Democratic Secretary of State Jocelyn Benson as the sole defendant).

The plaintiffs contend that the ballot rejection process is arbitrary and lacks a statewide standard. Michigan law does not require officials to notify voters that their ballots have been rejected or allow them to challenge any such rejections. Similar laws have been struck down in other states in recent years.

● Utah: Republican Gov. Gary Herbert has signed into law a measure that repeals Utah's straight-ticket voting option, which passed with the support of every Democratic legislator and most Republicans. Proponents of the repeal law, which was sponsored by a Democrat, have argued that the change would make voters more thoughtful about their choices. Nevertheless, in an era of historic partisan polarization, repealing the option is unlikely to significantly increase split-ticket voting.

Instead, academic research on the experience in North Carolina, which eliminated straight-ticket voting in 2013, found that the move increased voting lines by making it take longer for voters fill out the ballot. That in turn likely deterred some people from voting and had a disproportionate effect on black voters because they voted straight tickets more often. However, because Utah overwhelmingly votes by mail, long voting lines are far less of a concern than in other states, though the absence of the straight-ticket option could increase the rate of undervoting in races further down the ballot.

Utah's move leaves only six states with the option to check a single box to vote for every candidate on the ballot affiliated with that particular party.

VOTER SUPPRESSION

● North Carolina: On Tuesday, North Carolina's Court of Appeals rejected Republicans' request for all 15 judges on the court to review of a February ruling by three judges that had overturned a lower court ruling and temporarily blocked the GOP's voter ID statute. The case is currently proceeding on the merits, with plaintiffs arguing that Republicans acted with the intent to discriminate against black voters in enacting their voter ID law. GOP legislators could appeal to the state Supreme Court, but given its 6-1 Democratic majority, a reversal appears unlikely.

Earlier this year, a federal court issued its own preliminary injunction in a separate case ahead of an upcoming trial, and a panel of three judges on the 4th Circuit Court of Appeals reversed a lower court ruling on Friday to allow GOP legislative leaders to intervene as defendants.

Democratic state Attorney General Josh Stein had previously announced he would wait until after the March 3 primaries to appeal the federal ruling (Stein has a general obligation to defend state laws in most instances), so the voter ID requirement was already on hold in this month's vote. However, this latest state-court decision means the law could remain suspended for the November general election while the case proceeds.

FELONY DISENFRANCHISEMENT

● Florida: Federal Judge Robert Hinkle has given Republican Gov. Ron DeSantis' administration an ultimatum to establish a process to determine which citizens who've served felony sentences are unable to pay off their outstanding court fines and fees and therefore cannot remain subject to the GOP's modern-day poll tax. That law requires the payment of such debts before people with felony convictions can regain their voting rights. Hinkle said that if the state does not act before the start of trial on April 27, he would institute the necessary measures himself.

Hinkle also said on Thursday that he would grant class certification in the case, meaning that his ruling could soon apply to the hundreds of thousands of Floridians who are unable to pay off their court debts to regain their voting rights. Previously, Hinkle had temporarily blocked the poll tax from going into effect, but that decision only applied to the 17 individuals who had brought the case against the law last year.