On Aug. 14, Gov. Phil Murphy (D) issued an executive order establishing that the Nov. 3 general election will be conducted “primarily via vote-by-mail ballots.” Election officials will automatically deliver mail-in ballots to all active registered voters in advance of the election.
Murphy’s order makes the following temporary modifications to New Jersey’s election administration procedures:
- All mail-in ballots must have prepaid postage.
- Each county must provide for at least 10 ballot drop-boxes “in locations that are readily accessible to the registered voters within the county.”
- In order to be counted, ballots must be postmarked on or before Nov. 3 and received by 8:00 p.m. on Nov. 10.
- County election boards are authorized to pause counting ballots at 11:00 p.m. on Nov. 3, resuming at 9:00 a.m. on Nov. 4 and continuing every day thereafter until the count is completed.
- Each county must open at least one polling place in each municipality.
- Each county must open at least 50 percent of its usual number of polling places.
- If a county is unable to meet this threshold, it must “utilize schools or other large facilities to serve as large voting centers, which will accommodate more voting districts in one polling place.”
- All public primary and secondary schools must be closed to in-person instruction on Election Day, allowing schools to be used as voting centers.
- All polling places must adhere to prescribed sanitation and social distancing guidelines (detailed in sections 6(a) through 6(j) of the executive order).
- In-person voters must cast provisional ballots unless they are submitting a completed mail-in ballot.
Have other states made similar modifications?
To date, four states have announced they will automatically send mail-in ballots to all voters in the Nov. 3 general election: California, Nevada, New Jersey, and Vermont. In Montana, counties have been authorized, but not required, to conduct their elections by mail. Five states – Colorado, Hawaii, Oregon, Utah, and Washington – already conduct their elections by mail.
Another nine states have announced they will automatically send mail-in ballot applications to all voters in the Nov. 3 general election: Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, and Wisconsin.
What comes next?
On Aug. 18, Donald J. Trump for President, Inc., the Republican National Committee, and the New Jersey Republican State Committee filed suit against Murphy and Secretary of State Tahesha Way (D). They allege Murphy’s executive order represents “a direct usurpation of the state legislature’s authority,” as granted by the United States Constitution, “to set the time, place, and manner of congressional elections and to determine how the state chooses electors for the presidency.” They also argue that “fraudulent and invalid votes dilute the votes of honest citizens and deprive them of their right to vote in violation of the Fourteenth Amendment.” They seek an injunction to bar enforcement of the executive order.
The suit, Donald J. Trump for President, Inc. v. Murphy (3:20-cv-10753), is pending in the United States District Court for the District of New Jersey before Judge Michael Shipp, who was appointed to the bench by Barack Obama (D).
Meanwhile, Democratic lawmakers, with majorities in both chambers of the state legislature, are considering legislation that would essentially codify Murphy’s order. If enacted, the legislation (A4475 and S2580) could render the Republicans’ lawsuit moot.
Absentee/mail-in voting modifications since our last issue
Since our Aug. 12 edition, we’ve tracked the following absentee/mail-in voting modifications:
- Kentucky: On Aug. 14, Gov. Andy Beshear (D) and Secretary of State Michael Adams (R) announced multiple modifications to administration procedures in the Nov. 3 general election, including the extension of absentee/mail-in voting eligibility to all voters “concerned with contracting or spreading COVID-19.”
- Nebraska: On Aug. 19, Secretary of State Bob Evnen (R) announced that his office would automatically send early/mail-in ballot applications to all registered voters in the Nov. 3 general election whose home counties had not already done so.
- New Jersey: On Aug. 14, Gov. Phil Murphy (D) announced that the state would automatically send mail-in ballots to all voters in the Nov. 3 general election.
- New York: On Aug. 20, Gov. Andrew Cuomo (D) signed into law legislation extending absentee voting eligibility in the Nov. 3 general election to any voter who is “unable to appear personally at the polling place of the election district in which they are a qualified voter because there is a risk of contracting or spreading a disease causing illness to the voter or to other members of the public.”
- Ohio: On Aug. 12, Secretary of State Frank LaRose (R) directed each county election board to provide one drop-box for absentee/mail-in ballots in the Nov. 3 general election.
- Rhode Island: On Aug. 13, the Supreme Court of the United States denied a request by the Republican National Committee and the Republican Party of Rhode Island to stay a consent decree suspending witness/notary requirements for mail-in ballots cast in Rhode Island’s 2020 elections.
To date, 38 states have modified their absentee/mail-in voting procedures. These modifications, which can be divided into the following five broad categories, may apply to primary, special, or general elections:
- Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) either have sent or will send mail-in ballots automatically to all eligible voters in select 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) either have sent or will send mail-in ballot applications automatically to all eligible voters in select 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) either have expanded or will expand absentee voting eligibility in select elections. These states are shaded in light blue in the map below.
- Deadline extensions: Five states (Minnesota, Mississippi, Ohio, Pennsylvania, and Utah) either have extended or will extend absentee/mail-in ballot application or submission deadlines in select 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 select elections. This state is shaded in gray in the map below.
Redistricting developments since our last issue
Since our Aug. 12 edition, we’ve tracked the following redistricting-related developments.
- On Aug. 10, Colorado opened the application period for its two redistricting commissions. The 2020 redistricting cycle will be the first driven by the efforts of the two commissions – one tasked with congressional redistricting and the other with state legislative redistricting. In 2018, voters approved two constitutional amendments – Amendment Y and Amendment Z – creating the commissions. Each commission has 12 members: four from the state’s largest political party, four from the state’s second largest party, and four who are not affiliated with any party. The application period closes Nov. 10.
Ranked-choice voting update: Maine judge puts ranked-choice voting challenge back on Nov. ballot
On Aug. 24, Superior Court Judge Thomas McKeon ruled that Maine Republicans had collected enough valid signatures to place a veto referendum on the state’s ranked-choice voting law back on the Nov. 3 ballot. McKeon found that Secretary of State Matt Dunlap (D) had improperly invalidated 988 signatures. Those signatures qualified the measure for placement on the ballot.
The referendum, if approved by voters, would repeal LD 1803, legislation that had established ranked-choice voting for presidential primary and general elections. McKeon’s order precludes the state from using ranked-choice voting in this year’s presidential election, regardless of the referendum’s final outcome.
On Aug. 24, Dunlap said he had not decided whether to appeal McKeon’s ruling: “We have no idea where we’re going to go from here.” The state must print ballots by Aug. 28.
To date, we have tracked 218 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 developments in this area. Click here to view the complete list of lawsuits and court orders.
This week, we turn our attention to Washington v. Trump.
- Case name: Washington v. Trump
- Case number: 1:20-cv-03127
- State of origin: Washington
- Court: U.S. District Court for the Eastern District of Washington
- Summary: On Aug. 18, 13 state attorneys general filed suit against President Donald Trump (R), Postmaster General Louis DeJoy, and the United States Postal Service. They allege that DeJoy has “recently instituted sweeping changes that undermine the Postal Service’s ability to provide consistent and timely service … following repeated statements from President Trump evincing a partisan political motive for making it harder to vote by mail.” They claim DeJoy neglected “to consult with the Postal Regulatory Commission and to give the public an opportunity to comment.” They further allege that “these changes will have a wide range of negative consequences that violate a diverse array of federal laws, harming individuals with disabilities in violation of the Rehabilitation Act to disenfranchising voters in violation of the Constitution.” The states bringing the suit are Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. The attorneys general in these states are all Democrats. The case has been assigned to Chief Judge Stanley Bastian, who was appointed to the bench by Barack Obama (D).
- Court documents:
- Complaint (dated Aug. 18)
To date, we have tracked 296 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.