Author

Jerrick Adams

Jerrick Adams is a staff writer at Ballotpedia and can be reached at jerrick.adams@ballotpedia.org

Tracking the 90+ lawsuits related to COVID-19 election changes

Lawsuits involving election policy proliferate in response to COVID-19 outbreak 

The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting procedures, and modifications to candidate filing protocols. It has also resulted in at least 90 lawsuits filed in state and federal courts touching on various aspects of election administration. These lawsuits span 32 different states. 

In this edition of The Ballot Bulletin, we take a closer look at five of what we think are the most noteworthy lawsuits filed to date. We selected these lawsuits because they deal with a variety of election-related issues and originate in different regions of the country. For a complete list of all the election lawsuits we’re tracking, click here.

Esshaki v. Whitmer (Michigan) 

The parties to the suit: The plaintiffs were Eric Esshaki, Matt Savich, and Deana Beard, candidates for Congress, the Forty-Seventh Judicial District Court, and the Third Circuit Court, respectively. The defendants were Gov. Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Elections Director Jonathan Brater.

The issue: Attorneys for the plaintiffs argued that Whitmer’s stay-at-home order, which disallowed large gatherings and closed numerous businesses, prevented them from collecting the number of signatures needed to earn a place on the ballot. They argued that these conditions imposed a severe burden on the plaintiffs’ ability to seek elective office, violating their constitutional free-speech and associational rights. 

The outcome: On April 20, Judge Terrence Berg, of the United States District Court for the Eastern District of Michigan, ruled in favor of the plaintiffs and issued an order reducing the petition signature requirements for certain primary candidates to 50 percent of their statutory thresholds. Berg also extended the filing deadline from April 21 to May 8 and directed election officials to develop procedures allowing for the collection and submission of electronic petition signatures. Berg’s order applied only to candidates for offices without a filing-fee option: U.S. Senate, U.S. Congress, and judicial offices. The order did not apply to state legislative candidates, who could pay filing fees to get on the ballot.

Berg’s order was appealed to the United States Court of Appeals for the Sixth Circuit, which ruled on May 5 that Berg had erred in his initial order. Although the appeals court agreed that the original ballot requirements were unconstitutional, it ruled that Berg had exceeded his authority in mandating new requirements. The appeals court directed the state “to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances.”

On May 8, state authorities announced they would abide by the requirements laid out in Berg’s original order. Jake Rollow, a spokesman for the Michigan Department of State, said, “As the district court declined to amend its order, and with the revised filing deadline today, May 8, the best course of action to reduce further uncertainty in advance of the rapidly approaching August elections is to maintain the procedures that have been in place for the last two and a half weeks.”

Issa v. Newsom (California) 

The parties to the suit: The plaintiffs are former U.S. Rep. Darrell Issa (R) and four registered California voters: James Oerding, Jerry Griffin, Michelle Bolotin, and Michael Sienkiewicz. The defendants are Gov. Gavin Newsom (D) and Secretary of State Alex Padilla (D).

The issue: On May 8, Newsom issued an executive order directing county election officials to deliver mail-in ballots to all registered voters in the Nov. 3 general election. California law allows any eligible voter to vote by mail, but the voter is required to submit a mail-in ballot application first in order to receive an actual ballot. Under Newsom’s order, all voters will automatically receive the mail-in ballots. 

On May 21, the plaintiffs filed suit in the United States District Court for the Eastern District of California. In their complaint, attorneys for the plaintiffs allege that Newsom’s order violates both the Elections Clause and the Electors Clause of the United States Constitution. The Elections Clause (Article I, Section 4) establishes that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The Electors Clause (Article II, Section 1) establishes that each state may appoint presidential electors “in such Manner as the Legislature thereof may direct.” Attorneys for the plaintiffs argue that neither Newsom nor Padilla meet the definition of a “Legislature” for the purposes of these provisions. 

The outcome: The case is pending before Judge Morrison England, who was appointed to the court by President George W. Bush (R).

League of Women Voters of Oklahoma v. Ziriax (Oklahoma) 

The parties to the suit: The plaintiffs were the League of Women Voters of Oklahoma and two qualified Oklahoma voters, Angela Zea Patrick and Peggy Jeanne Winton. The defendant was Paul Ziriax, in his capacity as secretary of the Oklahoma State Election Board.

The issue: Attorneys for the plaintiffs alleged that official absentee ballot forms and other instructional materials were misleading voters by suggesting that a notarized affidavit was required in order for absentee ballots to be counted. The plaintiffs argued instead that a personally signed statement, under penalty of perjury, was sufficient in lieu of a notarized affidavit. 

The outcome: On May 4, the Oklahoma Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the contested requirement. The court ruled that the requirement did not qualify as an exception under a state law establishing that statements, signed and dated under the penalty of perjury, carry the force of an affidavit. 

However, on May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement. The legislation also included provisions applicable only to the 2020 election cycle. SB210 permitted voters to submit copies of their identification in lieu of fulfilling the notarization requirement in the event of a state of emergency occurring within 45 days of an election. The legislation also specified that individuals experiencing symptoms indicative of COVID-19, and individuals classified as vulnerable to infection could cast absentee ballots under the ‘physical incapacitation’ eligibility criterion.

Wisconsin Legislature v. Evers (Wisconsin) 

The parties to the suit: The plaintiff was the Wisconsin Legislature, in which Republicans have majorities in both chambers. The defendant was Gov. Tony Evers, a Democrat. 

The issue: On April 6, Evers issued an executive order postponing in-person voting in the spring election, scheduled to take place on April 7, to June 9. Evers also extended the receipt deadline for absentee ballots to June 9. 

State Senate Majority Leader Scott Fitzgerald (R) and Assembly Speaker Robin Vos (R) argued that Evers’ order exceeded his constitutional authority. They filed suit in the state supreme court, seeking an emergency stay of Evers’ order. In their motion for the stay, plaintiffs’ attorneys said, “Given that the Governor’s order comes mere hours before the in-person election is set to begin, the Legislature will suffer irreparable harm if Executive Order 74 is not immediately enjoined. Moreover, such sweeping changes to an election made just before the election is set to begin will undoubtedly cause voter confusion and call into question the integrity of the electoral process.” 

The outcome: On April 6, the state supreme court voted 4-2 to stay Evers’ order, allowing the election to proceed as scheduled. Justices Annette Ziegler, Rebecca Bradley, Patience Roggensack, and Brian Hagedorn formed the majority. Justices Ann Walsh Bradley and Rebecca Dallet dissented. Justice Daniel Kelly, who ran for re-election on April 7, did not participate in the decision.

In an unsigned opinion, the court majority wrote, “The question presented is not whether the policy choice to continue with this election is good or bad, or otherwise in the public interest. … Rather, the question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.” 

Bradley wrote the following in her dissent, which Dallet joined: “[The] majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic. These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.”

Yang v. Kellner (New York) 

The parties to the suit: The plaintiffs were Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention. The defendants were Robert Brehm, Douglas Kellner, Peter Kosinski, Andrew Spano, and Todd Valentine, all members of the New York State Board of Elections, and Gov. Andrew Cuomo (D).

The issue: On April 27, the New York State Board of Elections moved to cancel the Democratic presidential preference primary, which had been scheduled to take place on June 23. The Republican presidential preference primary had already been canceled. The statewide primary election was scheduled to proceed as planned on June 23. Earlier in April, the state enacted a law authorizing the board of elections to remove candidates’ names from the ballot upon the suspension or termination of their campaigns. Sen. Bernie Sanders (I) suspended his presidential campaign on April 8, making former Vice-President Joe Biden (D) the presumptive Democratic nominee.

In their complaint, filed April 28, attorneys for the plaintiffs alleged that “this unprecedented and unwarranted move infringes the rights of Plaintiffs and all New York State Democratic Party voters … as it fundamentally denies them the right to choose our next candidate for the office of President of the United States.” 

The outcome: On May 5, Judge Analisa Torres, of the United States District Court for the Southern District of New York, ordered the New York State Board of Elections to reinstate the Democratic presidential primary. Torres wrote, “[T]he removal of presidential candidates from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party’s nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention.” Torres joined the court in 2013, having been nominated by President Barack Obama (D). 

On May 6, the state board of elections appealed the decision. On May 19, a three-judge panel of the United States Court of Appeals for the Second Circuit affirmed Torres’ ruling. The panel comprised Judges Amalya Kearse, Dennis Jacobs, and Jose Cabranes. Kearse, Jacobs, and Cabranes were appointed to the court by Presidents Jimmy Carter (D), George H.W. Bush (R), and Bill Clinton (D), respectively. The state board of elections indicated it would make no further appeal. 

Election postponements

Since our May 20 edition, we’ve tracked the following election postponement updates: 

  • Puerto Rico: On May 21, the Democratic Party of Puerto Rico announced its presidential preference primary would take place on July 12. The primary was originally scheduled for March 29. It was first postponed to April 26. It was then postponed indefinitely. 


To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.

Absentee/mail-in voting modifications

Since our May 20 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Connecticut: Gov. Ned Lamont (D) issued an executive order extending absentee voting eligibility to any registered voter in the Aug. 11 primary if there is no “federally approved and widely available vaccine for prevention of COVID-19” at the time he or she requests an absentee ballot.
  • Montana: On May 27, the Montana Supreme Court voted 5-2 to halt a lower court order that had extended the absentee ballot receipt deadline for the June 2 primary to June 8.
  • Pennsylvania: On June 1, Gov. Tom Wolf (D) issued an executive order extending the absentee ballot receipt deadline for the June 2 primary to 5:00 p.m. on June 9 (with a postmark deadline of June 2) in Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties.
  • South Carolina: On May 25, Judge J. Michelle Childs, of the United States District Court for the District of South Carolina, issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee ballots in the June 9 primary and subsequent runoff elections.
  • Texas: On May 27, the Texas Supreme Court ruled that a voter’s lack of immunity to COVID-19 does not qualify as a disability under the state’s election laws and, therefore, cannot be cited as an excuse for voting absentee.

To date, 28 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, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically 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: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Seven states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 

Legislation tracking 

To date, we have tracked 165 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 

Current as of June 2, 2020

Looking ahead 

On June 2, Ballotpedia covered 1,990 primary elections for 1,011 offices across 12 states and Washington, D.C. In our June 17 issue, we’ll examine the effects of the COVID-19 outbreak on the conduct of these elections, turning our attention to the use of absentee/mail-in voting, consolidation of polling places, and preliminary data on voter turnout rates.



Pennsylvania extends absentee ballot receipt deadline to June 9 in six counties; postmark deadline remains June 2

On June 1, Gov. Tom Wolf (D) issued an executive order extending the absentee ballot receipt deadline for the June 2 primary to 5:00 p.m. on June 9 (with a postmark deadline of June 2, 2020) in Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties. In all other counties, a return deadline of June 2 remains in effect.

Pennsylvania’s primary was originally scheduled to take place on April 28. On March 27, Wolf signed into law legislation postponing the primary to June 2. The law also authorized counties to consolidate polling places without court approval and begin processing mail-in ballots beginning at 7:00 p.m. on Election Day.

Pennsylvania is one of 28 states that have modified their absentee/mail-in voting procedures in response to the COVID-19 outbreak.


Texas Supreme Court rules that a voter’s lack of immunity does not qualify as a disability for absentee voting purposes

On May 27, 2020, the Texas Supreme Court ruled that a voter’s lack of immunity to COVID-19 does not qualify as a disability under the state’s election laws and, therefore, cannot be cited as an excuse for voting absentee. The court ruled unanimously on the matter.

Chief Justice Nathan Hecht wrote the following in the court’s opinion: “We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability.'”

This ruling overturned two lower state court rulings to the contrary. On May 19, a federal district court judge ordered that all voters be allowed to cast absentee ballots, but the U.S. Court of the Appeals for the Fifth Circuit stayed that order later that same day.



California governor’s revised budget proposes cuts to public-sector worker pay, education spending

On May 14, California Gov. Gavin Newsom (D) submitted his proposed budget revision to the state Legislature. He has proposed several spending reductions, including cuts to public-sector salaries and education spending, in an effort to close an estimated $54 billion budget deficit. That deficit has resulted, in large part, from the effects of the COVID-19 outbreak.

How have budget projections changed?

The May revision projects a $54 billion budget deficit: “Job losses and business closures are sharply reducing state revenues. Compared to the January forecast, General Fund revenues are projected to decline over $41 billion. This revenue drop, combined with increased costs in health and human services programs and the added costs to address COVID-19, leads to a projected budget deficit of approximately $54 billion before the changes proposed in the May revision.”

Newsom’s original budget proposal, released in January, called for approximately $222.2 billion in total state spending in the 2020-2021 fiscal year. Newsom’s May revision calls for $203.3 billion in spending, an 8.5 percent decrease. January revenue projections totaled $211.9 billion. May revenue projections total $181.8 billion, a 14.2 percent decrease.

Personal income tax revenue projections decreased 25.3 percent, from $105.3 billion in January to $78.7 billion in May. Sales and use tax revenue projections decreased 25.4 percent, from $41.0 billion to $30.6 billion.

What kinds of reductions are being proposed, and what are the reactions?

Newsom’s proposal incorporates a 10 percent pay cut for California’s 234,000 state employees: “Absent additional federal funds, the COVID-19 recession requires reductions necessary to balance the state budget. These reductions will be triggered off if the federal government provides sufficient funding to restore them. Savings in employee compensation will need to be part of the budget solution absent federal funds.” Newsom [https://www.sacbee.com/news/politics-government/the-state-worker/article242745126.html said, “None of us in state government will be immune from tightening our belts and helping to support the cause and helping those most in need.”

Assembly Speaker Anthony Rendon (D) said, “I want to make sure that we are not only respecting state workers, but collective bargaining. I am concerned about the 10 percent cut. You are looking at workers who are already suffering, so I am going to make sure we go through those details.”

Yvonne Walker, president of SEIU Local 1000, which represents 96,000 public-sector workers, said, “I just want to be clear. It is not a straight across-the-board pay cut. If we do nothing, that’s exactly what it comes to. But I have confidence in our bargaining team. I have confidence in our members.”

The budget revision also estimates a $19 billion decrease in the Proposition 98 guarantee of minimum funding levels for K-12 schools and community colleges, a 23 percent decrease compared to Proposition 98 funding in the 2019-2020 fiscal year budget. Newsom has proposed implementing temporary tax changes, using federal COVID-19 relief and emergency education relief funds, and reducing employer pension contributions to mitigate the shortfall.

The Education Coalition, a group of nine statewide teachers unions and other K-12 education associations, opposed the proposed reductions: “[The] May revision proposes drastic cuts to K-12 education at a time when schools face significant costs related to COVID-19 and as they prepare for re-opening in the fall. It is for these reasons that the Education Coalition must respectfully oppose the proposed cuts in the May Revision to K-12 education and ask that both the Administration and the Legislature look to alternate revenue sources to ensure K-12 schools can provide quality and safe educational environments for its six million students.”

In a statement on Newsom’s budget revision, Assembly Minority Leader Marie Waldron (R) called on the governor to ease restrictions on individuals and businesses implemented in response to the COVID-19 outbreak: “The best way to fix this budget crisis is by helping people get back to work safely. If we can get employees back to work safely, receive some help from the federal government and make government more efficient to withstand future downturns, we will be able to protect jobs and public health and put California back on a path to prosperity that works for everyone.”

What comes next?

Newsom’s proposal now goes before lawmakers, which must pass a balanced budget by June 15 or else forgo their salaries. California is a Democratic trifecta, with a Democratic governor and Democratic majorities in both chambers of the legislature.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 95 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Union Station map May 22, 2020.png

Number of relevant bills by current legislative status

Union Station status chart May 22, 2020.png

Number of relevant bills by partisan status of sponsor(s)

Union Station partisan chart May 22, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California SB1173: Existing law requires public employers to provide unions with contact information for all employees within the bargaining unit. Existing law also requires that public employers provide unions with contact information for new employees within 30 days of hire. This bill would impose liability on employers who violate these provisions 3 or more times in a 12-month period.
    • Democratic sponsorship.
    • Senate Labor, Public Employment, and Retirement Committee reported favorably on May 18. Re-referred to Appropriations Committee.

See also



Indiana advances start date for third phase of reopening to May 22

On May 21, Gov. Eric Holcomb (R) announced that 89 of Indiana’s 92 counties would advance to the third phase of reopening effective May 22, two days earlier than the original target date of May 24.

The following businesses will be allowed to reopen or expand their operations: retail stores (at 75 percent capacity); mall common areas (at 50 percent capacity); gyms and fitness centers; playgrounds and other outdoor recreation facilities; community pools; campgrounds; and movie theaters (at 50 percent capacity).

Social gatherings of up to 100 people will be permitted. Cass, Lake, and Marion counties will be eligible to move into the third phase on June 1.

Holcomb unveiled Indiana’s five-stage reopening plan, the “Back on Track Indiana” plan, on May 1. The first stage constituted the period covered by the stay-at-home order. The first part of the second stage took effect on May 4 in most parts of the state. At that time, the following businesses were allowed to reopen: retail and commercial businesses (at 50 percent capacity); manufacturers, industrial operations, and other infrastructure; public libraries; and office settings. On May 11, restaurant dining rooms (at 50 percent capacity) and personal service businesses (by appointment only) were allowed to reopen.

The target start date for the fourth phase of Indiana’s reopening remains June 14.



Redistricting and COVID-19

Redistricting and the COVID-19 outbreak 

The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting policies, and adjustments to candidate filing protocols. The outbreak also stands to affect the redistricting cycle set to begin next year. This week, we turn our attention to this topic.

The 2020 census: why it matters 

Article I, Section 2, of the United States Constitution requires that a census of the U.S. population be conducted every 10 years. Census results inform apportionment and redistricting efforts. The congressional and state legislative district maps drawn on the basis of 2020 census results will stand until after the next census in 2030 (although maps may be subject to court challenges). 

Article I, Section 2, also stipulates that congressional seats be apportioned, or allotted, to the states on the basis of population. There are 435 seats in the United States House of Representatives. A state may gain or lose seats in the House if its population increases or decreases, relative to the other states. In 1964, the United States Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.”

The Constitution is silent on the issue of state legislative redistricting. In the mid-1960s, the Supreme Court issued a series of rulings establishing standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the United States Constitution] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”

COVID-19 and the 2020 census

The 2020 census, the nation’s 24th, is already underway. However, the COVID-19 outbreak may cause significant delays in the count. 

The Census Bureau has requested that Congress approve a four-month delay in delivering redistricting data to the states. This would postpone the following key census events (original dates are italicized; proposed postponements are bolded):

  • Process apportionment counts (July 31, 2020 – Dec. 31, 2020; Oct. 31, 2020 – April 30, 2021)
  • Process redistricting data (January 1, 2021 – March 30, 2021; May 1, 2020 – July 31, 2021)
  • Deliver apportionment counts to the president (Dec. 31, 2020; April 30, 2021)
  • Deliver redistricting counts to the states (April 1, 2021; July 31, 2021)

These delays, in turn, would affect redistricting efforts set to begin next year:   

  • Two states – New Jersey and Virginia – are scheduled to conduct state legislative elections in 2021. In both states, primaries are scheduled for June 8, more than a month in advance of the Census Bureau’s proposed July 31 data delivery deadline. 
  • Three states – California, Delaware, and Maine – have fixed redistricting deadlines set to occur before the July 31 deadline. Another six states – Hawaii, New York, Ohio, South Dakota, Utah, and Washington – have fixed redistricting deadlines set to occur at some point after July 31. 
  • Nine states – Alabama, Arkansas, Illinois, Massachusetts, Nevada, New Hampshire, Oklahoma, Oregon, and Vermont – have census-contingent deadlines for state legislative redistricting. One state – Indiana – has a census-contingent deadline for congressional redistricting. Two states – Connecticut and Michigan – have census-contingent deadlines for both congressional and state legislative redistricting.
  • Eleven states – Alaska, Colorado, Iowa, Louisiana, Minnesota, Missouri, Montana, North Carolina, Pennsylvania (legislative districts only), Texas, and Wisconsin – have redistricting deadlines tied to the receipt or publication of census data. 
  • Five states – Florida, Kansas, Maryland, Mississippi, and Wyoming – are not required to complete legislative redistricting until 2022. Two states – Mississippi and New Jersey – are not required to complete congressional redistricting until 2022.
  • Eleven states do not have any statutory or constitutional state legislative redistricting deadlines. Twenty-eight states do not have statutory or constitutional congressional redistricting deadlines.  

Redistricting ballot measures 

We have tracked nine statewide redistricting ballot measures this year. These measures would, to varying extents, alter existing redistricting processes ahead of the coming redistricting cycle. Social distancing protocols implemented at the state and local levels have affected signature-gathering efforts for some of these measures. Here is a brief status update on each of these nine measures:

Election postponements

Since our May 6 edition, we’ve tracked the following election postponement updates: 

  • Delaware: On May 7, Gov. John Carney (D) announced the postponement of the state’s presidential primary to July 7. Carney also postponed school board elections to July 21. 
  • New York: On May 19, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed a lower court decision reinstating New York’s Democratic presidential preference primary on June 23.


To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.

Absentee/mail-in voting modifications

Since our May 6 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • California: On May 8, Gov. Gavin Newsom (D) signed an executive order directing county election officials to send mail-in ballots to all registered voters in the Nov. 3 general election.
  • Delaware: On May 7, Gov. John Carney (D) announced that the state would automatically mail absentee ballot applications to all eligible voters in the presidential preference primary.
  • Michigan: On May 19, Secretary of State Jocelyn Benson (D) announced that all registered voters in the Aug. 2 primary and Nov. 3 general election would automatically receive mail-in ballot applications.
  • New Jersey: On May 15, Gov. Phil Murphy (D) issued an executive order providing for expanded mail-in voting in the July 7 elections. All registered, active Democratic and Republican voters will automatically receive mail-in ballots. Unaffiliated and inactive voters will automatically receive mail-in ballot applications.
  • Oklahoma: On May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement struck down by the state supreme court on May 4. The legislation also included provisions applicable only to the 2020 election cycle, including absentee voting eligibility expansions and a modified verification requirement for those unable to have their absentee ballots notarized.
  • South Carolina: On May 13, Gov. Henry McMaster (R) signed into law a bill allowing any eligible South Carolina voter to request an absentee ballot for the state’s June 9 primary and subsequent runoff elections.

To date, 28 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, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of 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: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in advance of certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Eight states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, Texas, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Three states (Ohio, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 

Legislation tracking 

To date, we have tracked 118 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 

Current as of May 19, 2020

Looking ahead 

We are tracking 60 lawsuits in 26 states involving pandemic-related election issues. In our next issue, we will turn our attention to these lawsuits, examining in greater detail some of the more noteworthy suits that have been filed in recent weeks. 



All registered Michigan voters in August 4, 2020, and November 3, 2020, elections to receive mail-in ballot applications automatically

On May 19, 2020, Michigan Secretary of State Jocelyn Benson (D) announced that all registered voters in the August 2, 2020, primary and November 3, 2020, general election would receive mail-in ballot applications automatically.

Michigan one of 12 states that have opted to deliver absentee/mail-in ballot applications automatically to all voters in advance of certain elections. It is also one of three states that have expanded absentee/mail-in ballot policies for both upcoming statewide primaries and the November general election. The other two are California and Connecticut.



Whitmer signs executive order allowing retail businesses, restaurants to reopen in 32 Michigan counties

On May 18, Gov. Gretchen Whitmer (D) signed an executive order allowing retail businesses, offices, restaurants, and bars to reopen effective May 22 in the following 32 counties: Alger, Alpena, Antrim, Baraga, Benzie, Charlevoix, Cheboygan, Chippewa, Crawford, Delta, Dickinson, Emmet, Gogebic, Grand Traverse, Houghton, Iron, Kalkaska, Keweenaw, Leelanau, Luce, Mackinac, Manistee, Marquette, Menominee, Missaukee, Montmorency, Ontonagon, Otsego, Presque Isle, Roscommon, Schoolcraft and Wexford.

Restaurants and bars will be subject to a 50% capacity limit.

Michigan’s reopening has been in progress since April 24, at which time Whitmer announced that landscaping and outdoor activity businesses, and curbside retail for nonessential supplies, could resume. Effective May 11, manufacturing businesses were allowed to reopen.

Michigan’s stay-at-home order, first issued on March 23 and originally set to expire on April 13, has been modified and extended numerous times. It is currently set to expire on May 28.



Massachusetts governor to detail reopening plan

At a press conference scheduled for 11:00 a.m. Eastern, Massachusetts Gov. Charlie Baker (R) is expected to provide further information about the state’s reopening plan. The state’s stay-at-home order is set to expire today.

Last Monday, Baker unveiled a four-phase plan for reopening Massachusetts. Under Phase 1 (“Start”), limited industries will be permitted to reopen, subject to restrictions. In Phase 2 (“Cautious”), additional industries will be permitted to reopen, subject to restrictions and capacity limits. Under Phase 3 (“Vigilant”), more industries will be allowed to reopen, subject to guidance. In phase 4 (“New Normal”), which is contingent on the development of a vaccine and/or therapeutic treatment, normal activities may resume. The plan did not elaborate on specific effective dates or contingencies for phases 1, 2, or 3.

Massachusetts is one of six states that have yet to begin implementing a reopening plan. The others are Connecticut, Delaware, New Jersey, Illinois, and South Dakota. The remaining 44 states have partially or completely lifted restrictions on three or more industries.



Massachusetts state legislator proposes bill giving liability protections to unions during COVID-19 outbreak

On April 23, Sen. Paul Feeney (D) introduced S2700, which would grant liability protections to unions that advise their members of their right to refuse to work due to abnormally dangerous conditions.

What does the bill propose?

Section 2 of the bill proposes that “it shall be unlawful to file a civil action for damages against any employee organization or union for advising their bargaining unit members of their right to refuse to work because of an abnormally dangerous condition at the place of the employment.”

The legislation would also grant liability protections to construction contractors and sub-contractors. It would take effect immediately upon passage and apply retroactively to any claims arising during the COVID-19 state of emergency, which was declared by Gov. Charlie Baker (R) on March 10.

What comes next?

Both the upper and lower chambers of the Massachusetts General Court are considering the bill simultaneously. The bill has been referred to the Joint Committee on the Judiciary, where it is awaiting action.

Political context: Massachusetts has a divided government. Gov. Charlie Baker is a Republican. Democrats, meanwhile, have veto-proof supermajorities in both chambers of the state legislature.

Minnesota public-sector workers sue for refunds of previously paid union fees

On May 8, six Minnesota state workers filed two class action lawsuits in U.S. district court against their unions. The plaintiffs want the unions to refund an estimated $19 million in fees paid before the U.S. Supreme Court’s 2018 Janus v. AFSCME decision.

Who are the parties to the suits?

  • Fellows v. MAPE (0:20-cv-01128):
    • Plaintiffs: Mark Fellows, a Department of Human Services employee; Catherine Wyatt, a former Department of Revenue employee; and Alicia Bonner, a Department of Employment and Economic Development employee.
      • Representation: Greenberg Traurig; LLP; Liberty Justice Center; National Right to Work Foundation; Upper Midwest Law Center.
    • Defendant: Minnesota Association of Professional Employees
      • MAPE is a union representing about 12,500 professional public-sector employees..

What is at issue, and what comes next?

In both suits, attorneys for the plaintiffs argue the unions illegally compelled employees within their bargaining units to pay union fees. They argue that, after the U.S. Supreme Court issued its ruling in Harris v. Quinn in 2014, the unions “should have known that [their] agency fee seizures may violate public employees’ First Amendment rights.” In Harris v. Quinn, the court struck down an Illinois statute compelling a specific class of home healthcare workers to pay fees to the Service Employees International Union.

The cases are both pending adjudication in the United States District Court for the District of Minnesota.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 95 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Union Station map May 15, 2020.png

Number of relevant bills by current legislative status

Union Station status chart May 15, 2020.png

Number of relevant bills by partisan status of sponsor(s)

Union Station partisan chart May 15, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. Bills are listed in alphabetical order, first by state, then by bill number. The partisan affiliation of bill sponsor(s) is also provided.

  • California SB1173: Existing law requires public employers to provide unions with contact information for all employees within the bargaining unit. Existing law also requires that public employers provide unions with contact information for new employees within 30 days of hire. This bill would impose liability on employers who violate these provisions 3 or more times in a 12-month period.
    • Democratic sponsorship.
    • Senate Labor, Public Employment, and Retirement Committee hearing scheduled May 14.
  • Louisiana HB572: This bill would allow teachers and other school employees to cease withholding union dues from their wages at any time upon submitting a written or email request.
    • Republican sponsorship.
    • House Labor Committee hearing scheduled May 14.
  • Massachusetts S2700: This bill would make it unlawful to file a civil action against any union for advising its members of their right to refuse to work “because of an abnormally dangerous condition at the place of employment.”
    • Democratic sponsorship.
    • Referred to Joint Judiciary Committee May 7.


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