A number of states have onerous mail-in ballot requirements that make it more difficult for voters to exercise their right to vote. We’ve focused on a select number of swing states that have requirements that make it more difficult for voters’ mail-in ballots to be accepted. Lawsuits from both voting rights groups and the Trump campaign have been brought in each state. The highlights are summarized below.
Eligible voters can request a mail-in ballot by completing an absentee ballot request form, signing it (non-digital signature required) and returning it to the county auditor.
A voter may choose to either return the completed ballot by mail or physically return it to the county auditor.
There have been a series of lawsuits in Iowa regarding the expansion of requirements for absentee voting. However, the most controversial and impactful lawsuit was against a directive issued by the Secretary of State (R) to all counties stating that the ballots must be completely blank, in order to ensure uniformity across the state. However, some counties already printed pre-filled ballots containing voter’s personal information, and already dispatched those ballots to the voters. The state Supreme Court issued a ruling upholding Secretary of State’s directive, thus invalidating 70,000 ballots. The voters need to fill in new blank ballots and send them back to the county office.
A last lawsuit initiated by Democratic party and other interest groups is pending. It is against a new law directing county officials to contact voters by phone, email or mail, if there are any details missing from the form – rather than just filling the details using the voter registration database they already have access to. This law was passed by the Republican-controlled legislature stating the need to decrease the possibility of fraud.
Eligible voters can request a mail-in ballot without providing an excuse. While a voter may complete the form online, they need to print the completed form and sign it (digital signatures are not accepted) before either scanning it back and emailing it to the county board of elections office. Voters may also choose to post their ballot requests or physically submit them at the board of elections office. This requirement to print the ballot-request forms presents some accessibility challenges. Voters that do not have access to printers are disadvantaged, especially in the conditions of the pandemic.
In order to complete the ballot itself, voters are required to present one fitness signature, before mailing (or physically dropping at the polling station) the ballot. Ballots must be postmarked by 5 pm on Election Day, and must be received by the board of elections office nine days after the election (Nov. 12). The witness requirement presents its own set of challenges, especially for those voters who are elderly, in quarantine or have underlying diseases that make them more susceptible to Covid-19.
Ohio offers the option of mailing through absentee ballots for everyone. Voters do not need to show any excuse to request an absentee by mail ballot, and ballot-request forms are already mailed to every registered voter in the State. A voter then needs to sign the form and mail it to the Board of Elections (local county office). However, if an unregistered voter needed a ballot-request form, they would need to fill it online, print and sign it, before mailing it to the county board of election office. The deadline to request an absentee ballot is three-days before the election.
The requirement to physically print the ballot request form may be a hurdle for unregistered voters (Over 110,000 people were not registered), especially if they are young, or economically disadvantaged and do not have access to a printer during the pandemic.
Upon receiving and filling a ballot, a voter can then mail the ballot (must be postmarked a day before the election to be eligible) to the Board of Elections or deliver it personally (before 7:30pm on Election Day). For a vote to be counted, the ballot must be recieved a maximum 10 days after the election.
A lawsuit against the Secretary of State (Frank LaRose-Republican) limiting the number of ballot drop-boxes to just one per county (a total of 88 counties in Ohio) was unsuccessful, and the appeals court held LaRose’s argument that the fair administration of the election was possible with one-ballot per county, especially since early voting had already started.
Pennsylvania has two types of voting by mail: absentee voting and mail-in voting. While absentee voting requires an approved excuse, anyone can vote by mail without an excuse due to the pandemic. Voters have to apply for absentee and mail-in ballots; they will not be sent automatically.
Returning a mail-in ballot in Pennsylvania is a bit more complicated. Pennsylvania requires the use of a secrecy envelope, and mail-in ballots will be thrown out if they are “naked” ballots (ballots that aren’t enclosed in the secrecy envelopes).
In June, the Trump Campaign and the Republican National Convention (“RNC”) filed a lawsuit in the Western District of Pennsylvania. The complaint asked a federal judge to ban the use of ballot drop boxes in Pennsylvania for the general election. The Trump Campaign argued that the use of drop boxes would allow for voter fraud. Specifically, the Trump Campaign alleged that they would allow voters to cast more than one vote, destroy ballots, and engage in other forms of ballot tampering. Additionally, the Trump Campaign also requested that Pennsylvania be required to throw out ballots that are returned without the state-mandated secrecy envelope.
In August, a federal court judge halted the lawsuit until October 5 to give the Pennsylvania state courts time to resolve the issue. In September, the Pennsylvania Supreme Court approved the use of ballot drop boxes and upheld a provision of Pennsylvania law that restricts poll watchers from monitoring polling sites outside of their home counties. However, the court also held that the secrecy envelope was required for mail-in voting. Ballots returned without the secrecy envelope will be thrown out by election officials, and those votes will not be counted.
In a separate ruling in September, the Pennsylvania Supreme Court barred people from submitting other voters’ absentee ballots, a practice known as “ballot harvesting.”
In the June 2020 primary, 1.5 million voters voted by mail in Pennsylvania. About 37,000 votes were not counted due to ballot irregularities or because they were returned late, as reported here.
Voters can only vote early by mail in Texas with an approved excuse. Texas voters qualify for mail-in voting only if they are 65 years or older, have a disability or illness, will be out of the county during the election, or are in jail. As reported here, the Texas Supreme Court ruled in May that a voter’s lack of immunity to COVID-19, without more, is not enough to qualify a voter to apply for a mail-in ballot.
A district court in Texas issued a ruling that would have overturned this rule and allowed all voters in Texas to qualify to vote by mail during the pandemic. However, a panel for the Fifth Circuit Court of Appeals blocked that ruling, which keeps the state’s original mail-in voting rules in place.
The Fifth Circuit also ruled that Texas can limit ballot drop off boxes to one per county, finding that it did not burden voting to do so.
In the 2020 Primary, 1,080 mail-in ballots were rejected in Texas, as reported here.
No excuse is needed to vote by mail in Wisconsin. However, returning a ballot by mail has an onerous requirement: a witness signature. Mail-in ballots must be completed in the presence of a witness, who must sign the included certificate. Ballots that do not contain a witness signature will be thrown out.
In September, a federal judge ruled that absentee ballots will be counted if they are postmarked by November 3 and received by November 9. Additionally, the judge ruled that voters have until October 21 to register to vote, extending this deadline as well.
In contrast to the recent decision in Texas, the judge also ruled that poll workers in Wisconsin can work in any county, not just in the county where they live. However, the court declined to lift the witness signature requirement for absentee ballots, and also declined Democrats’ request to mail absentee ballots to all voters in Wisconsin.
In the 2020 Primary, over 23,000 mail-in ballots were rejected, as reported here.