On Aug. 3, Nevada Gov. Steve Sisolak (D) signed AB4 into law, directing election officials to automatically send mail-in ballots to all active registered voters in the Nov. 3 general election.

How did the bill become law?

The legislation was introduced in the Nevada Assembly on July 31 and referred to the Committee of the Whole. The Assembly approved AB4 on the same day and transmitted it to the Nevada Senate, where it was referred to the Committee of the Whole. The Senate approved the legislation on Aug. 2 and sent it to the governor.

The Assembly voted 29-12 in favor of the bill, with one member excused. The Senate voted 13-8 in favor of the bill. The vote split along partisan lines in both chambers, with all Democrats voting in favor of the legislation and all Republicans voting against (except the one Assembly Republican excused from the vote).

What changes did the bill make to existing law?

AB4 modifies election procedures during declared states of emergency. Specifically, the legislation:

• Directs election officials to automatically send mail-in ballots to all active registered voters in elections affected by a statewide state of emergency.
• Sets the postmark deadline for mail-in ballots as the day of the election and the receipt deadline as seven days after the election.
• Allows a voter to authorize any person to return a mail-in ballot on behalf of the voter.
• Authorizes election officials to begin counting ballots 15 days before the election.

What were the reactions?

Both national and state-level Republicans criticized the legislation, both in terms of its content and its method of enactment. Former state attorney general Adam Paul Laxalt (R) posted on Twitter: “Gov. Sisolak and the NV Dems called a special session with no public present and inside 24 hours are ramming through mail-in balloting and ballot harvesting. They are massively altering our election 97 days out entirely without the SecState. They are working to steal our election[.]”

President Donald Trump (R) retweeted Laxalt’s post, adding, “This is outrageous. Must be met with immediate litigation!”

Democrats dismissed these criticisms. Assembly Speaker Jason Frierson and Senate Majority Leader Nicole Cannizzaro, both Democrats, said, “This bill ensures every eligible voter in the state is able to cast his or her ballot safely and securely without risk to their health.”

William McCurdy, chairman of the state Democratic Party, said, “Trump and his allies have always been motivated by partisanship, even at the expense of American lives. That he would threaten Nevada Democrats’ work to protect voting access through a crisis of his own making is both despicable and par for the course.”

What comes next?

On Aug. 4, Donald J. Trump for President, Inc. the Republican National Committee, and the Republican Party of Nevada filed suit in the U.S. District Court for the District of Nevada. In their formal complaint, they allege: “AB4 adds more than 25 new election-related sections to the Nevada Revised Statutes and amends more than 60 others. Many of those provisions will undermine the November election’s integrity. Some go beyond that, crossing the line that separates bad policy judgments from enactments that violate federal law or the United States Constitution.”

On Aug. 10, attorneys for Nevada Secretary of State Barbara Cegavske (R) filed a motion to dismiss the lawsuit. In that document, attorneys wrote, “Absent a concrete and particularized injury to plaintiffs, the court has no jurisdiction to intervene in election preparations. Because Plaintiffs have failed to plead facts from which one might reasonably infer that an injury is actual and imminent, not hypothetical, the court should dismiss their claims for lack of jurisdiction.”

The lawsuit, and the motion to dismiss, are pending before Judge James Mahan, an appointee of President George W. Bush (R). The case name and number are Donald J. Trump for President v. Cegavske, 2:20-cv-01445.

Absentee/mail-in voting modifications since our last issue

Since our July 29 edition, we’ve tracked the following absentee/mail-in voting modifications:

• Arkansas: On Aug. 7, Gov. Asa Hutchinson (R) issued an executive order extending absentee ballot eligibility to all voters in the Nov. 3 general election “who conclude their attendance at the polls may be a risk to their health or the health of others due to the COVID-19 pandemic.” The order formalized the policy that Hutchinson and Secretary of State John Thurston (R) first announced on July 2.
• California: On Aug. 6, Gov. Gavin Newsom (D) signed SB 423 into law, authorizing counties to consolidate polling places in the Nov. 3 general election, among other modifications to administration procedures.
• Connecticut: On July 31, Gov. Ned Lamont (D) signed HB6002 into law, allowing voters to cite concern over COVID-19 as a reason for voting absentee in the Nov. 3 general election.
• Minnesota: On Aug. 3, a Minnesota district court approved a consent decree between the plaintiffs and the state defendants in LaRose v. Simon. Under the terms of the consent decree, state election officials agreed to waive the witness requirement for mail-in ballots cast in the Nov. 3 general election. The state also agreed to count all mail-in ballots postmarked on or before Nov. 3 and received within five business days of Election Day.
• Montana: On Aug. 6, Gov. Steve Bullock (D) issued a directive permitting counties to conduct the Nov. 3 general election entirely by mail. Bullock also authorized counties to expand early voting opportunities for the general election.
• Nevada: On Aug. 3, Gov. Steve Sisolak (D) signed AB4 into law, directing election officials to automatically send to all active registered voters in the Nov. 3 general election.
• Pennsylvania: On July 31, Secretary of the Commonwealth Kathy Boockvar (D) announced the state would provide prepaid return postage for all mail-in and absentee ballots in the Nov. 3 general election.
• Rhode Island:
  • On July 31, Judge Mary McElroy of the U.S. District Court for the District of Rhode Island approved a consent agreement reached by the parties in Common Cause Rhode Island v. Gorbea. Rhode Island officials agreed not to enforce witness or notary requirements for mail-in ballots in both the Sept. 8 primary and Nov. 3 general elections.
  • On Aug. 7, a three-judge panel of the United States Court of Appeals for the First Circuit issued a per curiam opinion denying Republicans’ motion to stay the consent decree.
• Tennessee: On Aug. 5, the Tennessee Supreme Court vacated a lower court order that had extended absentee voting eligibility to all voters during the course of the COVID-19 pandemic. As a result, the state’s standard eligibility criteria apply to the Nov. 3 general election. The state granted that “individuals with a special vulnerability to COVID-19” and “or caretakers for individuals with a special vulnerability to COVID-19” would meet the existing statutory criteria for absentee voting eligibility.
• Virginia: On Aug. 5, the parties in League of Women Voters of Virginia v. Virginia State Board of Elections reached a settlement providing for the suspension of Virginia’s witness requirement for absentee ballots in the Nov. 3 general election.

To date, 38 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

• Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
• Automatic mail-in ballot applications: Seventeen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
• Eligibility expansions: Ten states (Alabama, Arkansas, Indiana, Kentucky, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
• Deadline extensions: Five states (Minnesota, Mississippi, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
• Other process changes: One state (North Carolina) has made other modifications to its absentee/mail-in ballot procedures in certain elections. This state is shaded in gray in the map below.

Redistricting developments since our last issue

Since our July 29 edition, we’ve tracked the following redistricting-related developments.

• On Aug. 3, the United States Census Bureau announced it would conclude field data collection efforts by Sept. 30. The agency said it would use incentive awards and additional hires “to accelerate the completion of data collection and apportionment counts by our statutory deadline” of Dec. 30. The Bureau had previously indicated it might have to extend door-knocking efforts into October.

Litigation tracking

To date, we have tracked 165 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Georgia, Anderson v. Raffensperger.

• Case name: Anderson v. Raffensperger
• Case number: 1:20-cv-03263
• State of origin: Georgia
• Court: U.S. District Court for the Northern District of Georgia
• Summary: On Aug. 6, the Democratic Party of Georgia, the Democratic Senatorial Campaign Committee, and three Georgia residents filed suit against several state and local election officials. The plaintiffs allege that state and local election administration policies result in extended waiting times at the polls, deterring citizens from voting. They are asking the court to order election officials to “provide a sufficient number, and equitable distribution, of polling places and other election resources to prevent voters from having to wait in unreasonably long lines on Election Day.” In a statement, Deputy Secretary of State Jordan Fuchs said, “The Democratic Party of Georgia, Fair Fight and Democratic legislators all opposed Secretary Raffensperger’s legislation that would have required counties to add more polling places, equipment, and/or poll workers if any polling place had a wait time of more than an hour at any point throughout the day. Now, they are asking a federal court to order just that. Meanwhile, Secretary Raffensperger has been providing Georgia counties with specific data to help them know where they might need to add more polling places or voting equipment in order to avoid lines in November.”
• Court documents:
  • Complaint (dated Aug. 6)

Legislation tracking

To date, we have tracked 276 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020