TagBallot Bulletin

Recent SCOTUS actions involving COVID-19 and elections

On June 25 and June 26, the Supreme Court of the United States declined to intervene in two lawsuits involving COVID-19 and election administration. The first was a suit out of Ohio involving remote signature gathering for ballot initiatives. The second was a suit out of Texas dealing with absentee voting eligibility.

Thompson v. DeWine

On April 27, three registered Ohio voters and ballot initiative petition circulators (Chad Thompson, William Schmitt, and Don Keeney) filed suit against the state in federal district court, alleging that Ohio’s in-person signature collection and witnessing requirements for ballot measures were unconstitutional in light of the COVID-19 outbreak. The plaintiffs petitioned the court either to direct state officials to place the initiatives on the ballot directly or suspend prohibitions against remote signature collection and extend filing deadlines.

On May 19, Judge Edmund Sargus issued an order directing state officials to suspend enforcement of in-person signature requirements and extend filing deadlines for the initiative campaigns involved in the suit. Sargus wrote, “[This] court finds that in these unique historical circumstances of a global pandemic and the impact of Ohio’s stay-at-home orders, the state’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden plaintiffs’ First Amendment rights as applied here.”

On May 21, Ohio Attorney General Dave Yost (R) appealed that decision to the United States Court of Appeals for the Sixth Circuit. On May 26, a three-judge appellate panel, composed of Judges Jeffrey Sutton, David McKeague, and John Nalbandian, stayed the district court’s decision. In a per curiam opinion, the court wrote:

Whether this intermediate burden on plaintiffs’ First Amendment rights passes constitutional muster depends on whether the state has legitimate interests to impose the burden that outweigh it. Here they offer two. Defendants claim the witness and ink requirements help prevent fraud by ensuring that the signatures are authentic. And the deadlines allow them time to verify signatures in an orderly and fair fashion, while also providing initiative proponents time to challenge any adverse decision in court. These interests are not only legitimate, they are compelling.[1]

The plaintiffs appealed the appellate panel’s decision to the U.S. Supreme Court. On June 25, Associate Justice Sonia Sotomayor, who fields such requests for the Sixth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent.

Texas Democratic Party v. Abbott

On May 19, Judge Samuel Biery, of the United States District Court for the Western District of Texas, ordered that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19. In his opinion, Biery wrote, “The Texas Election Code allows citizens over 65 without a disability to vote by mail. Thus, the Texas vote-by-mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64, 364 days and younger. The court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.” Biery also construed lack of immunity to, and fear and anxiety over, COVID-19 as disabilities within the context of the state election code and the state’s absentee voting eligibility criteria.

Texas Attorney General Ken Paxton (R) appealed the decision to the United States Court of Appeals for the Fifth Circuit. On June 4, a three-judge appellate panel stayed Biery’s order. Judge Jerry Edwin Smith wrote the following in the court’s opinion:

In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one. But because the spread of the Virus has not given ‘unelected federal jud[ges]’ a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal.[1]

Judge James Ho wrote a concurring opinion. Judge Gregg Costa wrote an opinion concurring in the judgment only.

On June 16, the Democratic Party of Texas appealed the decision to the Supreme Court, asking that the court lift the appellate panel’s stay and set an expedited briefing schedule for consideration of the case. Justice Samuel Alito, who fields such requests for the Fifth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent. Associate Justice Sonia Sotomayor issued a statement: “This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not disagree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.” The case now returns to the Fifth Circuit for further proceedings.

Absentee/mail-in voting modifications

Since our June 17 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • New Mexico: On June 26, Gov. Michelle Lujan Grisham (D) signed SB4 into law, authorizing county clerks to mail absentee ballot applications automatically to registered, mailable voters in the Nov. 3 general election.
  • Texas: On June 26, the Supreme Court of the United States declined to reinstate a district court order that had expanded absentee voting eligibility in Texas, as noted above. An appeals court stayed the district court’s order, a decision that was allowed to stand as a result of the Supreme Court’s decision not to intervene.
  • Alabama: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
  • Iowa: On June 25, Gov. Kim Reynolds (R) signed HF2486 into law, barring the secretary of state from mailing absentee ballot request forms to all voters without first obtaining approval from the state legislature. The legislation also barred county officials from decreasing the number of polling places by more than 35 percent during an election.
  • Tennessee: On June 24, the Tennessee Supreme Court declined to stay a lower court order that had extended absentee voting eligibility to all voters during the pandemic.
  • California: On June 18, Gov. Gavin Newsom (D) signed AB860 in law, requiring county election officials to mail absentee/mail-in ballots to all registered voters in the Nov. 3 general election. On May 8, Newsom had issued an executive order to the same effect.
  • Wisconsin: On June 17, the Wisconsin Election Commission voted unanimously to send absentee/mail-in ballot applications automatically to most registered voters in the Nov. 3 general election.

To date, 35 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 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: Fifteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, 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: Nine states (Indiana, Kentucky, Massachusetts, 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: Four states (Minnesota, 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: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (8).png

Litigation tracking

To date, we have tracked 118 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 Alabama, People First of Alabama v. Merrill.

  • Case name: People First of Alabama v. Merrill
  • Case number: 20-12184 (district court case number: 2:20-cv-00619)
  • State of origin: Alabama
  • Court: U.S. Court of Appeals for the Eleventh Circuit
  • Summary: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14, 2020, runoff elections. The panel, comprising Judges Robin Rosenbaum, Jill Pryor, and Britt Grant, voted unanimously on the matter. The lower court had ordered the state to waive the witness requirement for any voter who provides a written statement, signed under penalty of perjury, that he or she suffers from an underlying medical condition that places the individual at higher risk for contracting a severe case of COVID-19. The lower court had also ordered the state to waive the photo ID requirement for any voter who is either over the age of 65 or disabled who signs a written statement to that effect. The lower court also enjoined the state from enforcing its de facto prohibition against curbside voting.
  • Court documents:

Legislation tracking

To date, we have tracked 237 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



Ballot Bulletin: Super Junesday voter turnout

June 2 primaries mark highest concentration of voting activity since March 

On June 2, nine states held statewide primary elections (and the District of Columbia conducted its district-wide primary). This represented the busiest single day of voting since March 3. The reason? The COVID-19 outbreak prompted a series of election postponements and other modifications.     

How many of the June 2 primaries were postponements? 

Of the 10 jurisdictions conducting statewide or district-wide primaries on June 2, five had originally scheduled their primaries for an earlier date: 

  • Idaho (originally May 19)
  • Indiana (originally May 5) 
  • Maryland (originally April 28) 
  • Pennsylvania (originally April 28) 
  • Rhode Island (originally April 28) 

How did voter turnout on June 2 compare to turnout in 2016? 

The table below compares voter turnout in primary elections in 2020 versus 2016. In the five states for which information is available, turnout increased between 6.24 and 15.10 percentage points between 2016 and 2020. 

Indiana, Iowa, Maryland, Pennsylvania, and Rhode Island are not included in this table because the figures needed to calculate voter turnout in those states have not yet been fully released. 

How many votes were cast by mail, relative to 2016? 

Most of the jurisdictions that held primaries on June 2 have not yet released complete information on the number of votes cast by mail. In the District of Columbia, 71.11 percent of all votes cast on June 2 were cast by mail, an increase of 62.82 percentage points over 2016. In Idaho, 57.51 percent of all votes cast were cast by mail, an increase of 43.41 percentage points over 2016. 

Of the remaining eight states, seven modified their absentee/mail-in voting procedures, suggesting a possible increase in the share of votes cast by mail in those states: 

  • Indiana: Absentee/mail-in voting eligibility requirements suspended, allowing all voters to cast ballots by mail.
  • Iowa: Mail-in ballot applications automatically sent to all voters.
  • Maryland: Mail-in ballots automatically sent to all voters (at least one in-person voting center open in each county).
  • Montana: Counties authorized to automatically send mail-in ballots to all voters.
  • Pennsylvania: In Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties, absentee ballot receipt deadline extended to June 9.
  • Rhode Island: Mail-in ballot applications automatically sent to all voters.
  • South Dakota: Mail-in ballot applications automatically sent to all voters.

Although New Mexico did not modify its absentee/mail-in voting procedures for the June 2 primary, it already provided for universal absentee voting eligibility (i.e., no excuse required). Iowa, Maryland, Montana, Pennsylvania, and Rhode Island likewise already allowed for no-excuse absentee voting. 

Absentee/mail-in voting modifications

Since our June 3 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Alabama: On June 15, Judge Abdul Kallon, of the United States District Court for the Northern District of Alabama, issued a preliminary injunction barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
  • Missouri: On June 4, Gov. Mike Parson (R) signed SB631 into law, permitting any registered voter to cast an absentee ballot in any 2020 election, subject to a notarization requirement.
  • New York: On June 7, Gov. Andrew Cuomo (D) signed into law legislation extending the submission deadline for absentee ballots in the June 23 election to June 23.
  • North Carolina: On June 12, Gov. Roy Cooper (D) signed HB1169 into law, reducing the witness signature requirement on completed absentee ballots from two to one.
  • Tennessee: On June 4, the Chancery Court for Tennessee’s Twentieth Judicial District ruled that Tennessee’s absentee voting law, which limits eligibility to those meeting certain criteria, “during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.” The court ordered the state to extend absentee voting eligibility to all Tennessee voters during the course of the pandemic.
  • Texas: A three-judge panel of the United States Court of Appeals for the Fifth Circuit stayed a district court decision ordering that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19.


To date, 32 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 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: 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: Nine states (Indiana, Kentucky, Massachusetts, 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: 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. 
  • Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in light gray in the map below. 

Litigation tracking 

To date, we have tracked 98 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. Beginning this week, in each issue of The Ballot Bulletin, we’ll shine a spotlight on what we think is 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 California, Gallagher v. Newsom.

  • Case name: Gallagher v. Newsom
  • Case number: CVCS-20-0912
  • State of origin: California
  • Court: Sutter County Superior Court
  • Summary: On June 12, Judge Perry Parker, of the Sutter County Superior Court, issued a temporary restraining order suspending Gov. Gavin Newsom’s (D) Executive Order N-67-20. The order, issued June 3, had permitted counties to consolidate polling places in the Nov. 3 general election, provided they offer three days of early voting. Parker’s order came as the result of an action filed by two Republican state Assembly members, James Gallagher and Kevin Kiley. Gallagher and Kiley alleged Newsom’s order usurped the legislature’s authority, in violation of the state constitution. Parker enjoined Newsom’s order pending further proceedings in the case. 
  • Court documents

 

 

 

Legislation tracking 

To date, we have tracked 196 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 16, 2020



Louisiana parishes to vote on sports betting in November

On June 12, Louisiana Governor John Bel Edwards (D) signed Senate Bill 130 (SB 130) that will ask the voters in each of Louisiana’s 64 parishes whether or not to authorize sports betting within the parish. If a majority of voters in a parish support authorizing sports betting, sports betting would be allowed in the parish after state laws are passed providing for the regulation of such activities.

In Louisiana, a simple majority vote in both chambers of the state legislature is required to refer a statutory measure to the ballot. The governor’s signature is also required to refer the measure. Senator Cameron Henry (R-9) introduced SB 130 on February 25, 2020. The Louisiana State Senate passed the bill in a vote of 29-8 on May 13, 2020. The Louisiana House of Representatives passed the bill on May 17, 2020, in a vote of 71-23 with nine representatives absent.

In 2018, the legislature sent a similar set of parish measures legalizing fantasy sports to the ballot. Forty-seven (47) of the 64 parishes approved the measures, and 17 parishes defeated the measure.

In November 2020, Maryland voters will decide on the Sports Betting Expansion Measure that would authorize sports and events wagering at certain licensed facilities with state revenue intended to fund public education. Voters in Deadwood, South Dakota will also be voting on a measure that would legalize sports betting within the city limits. As of May 2020, 22 states had passed laws legalizing sports betting.

On May 14, 2018, the U.S. Supreme Court ruled 7-2 in Murphy v. NCAA that the federal government could not require states to prohibit sports betting, thereby overturning the federal ban on sports betting (the Professional and Amateur Sports Protection Act or PASPA) and allowing states to legalize sports betting.

The Louisiana State Legislature has also certified six statewide constitutional amendments for the November ballot. The topics of the amendments include abortion, state government finances, taxes, and natural resources.

Additional reading:


California Assembly passes bill for ballot measure to repeal Proposition 209, which banned considering race and sex in public jobs, education, and contracting in 1996

On June 10, the California State Assembly passed a constitutional amendment to repeal Proposition 209, which received 54.55 percent of the vote in 1996. Proposition 209 prohibited the state from considering race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

In California, a two-thirds vote is needed in each chamber of the California State Legislature to refer a constitutional amendment to the ballot for voter consideration. In the state Assembly, the vote was 60 to 14—seven votes above the two-thirds threshold. Democrats, along with one Republican and the chamber’s one independent, supported for the constitutional amendment. Fourteen Republicans opposed the constitutional amendment.

Asm. Shirley Weber (D-79), chairwoman of the Legislative Black Caucus, is the principal sponsor of the constitutional amendment in the state Legislature. Asm. Weber stated, “The ongoing pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep-seated inequality and far-reaching institutional failures that show that your race and gender still matter.” Asm. Weber said that the constitutional amendment is about “equal opportunity for all and investment in our communities.”

Asm. Steven S. Choi (R-68), one of the Republicans who voted against the amendment, said, “Repealing Proposition 209, enacted by voters 24 years ago, is to repeal the prohibition of judgment based on race, sex, color, ethnicity and national origin. We are talking about legalizing racism and sexism.”

To appear on the ballot for November 3, 2020, the California State Senate needs to pass the constitutional amendment by June 25. At least 27 votes will be needed in the state Senate. Democrats control 29 of the Senate seats, while Republicans hold 11 seats.

As of June 11, no legislative referrals have been placed on the November ballot in California, but 10 have passed at least one chamber. Amendments related to sports betting and remote legislative proceedings are also being considered before the June 25 deadline.

Additional reading:


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.



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. 



Ballot Bulletin: Candidate filing changes under COVID-19

States modify candidate filing procedures in response to the COVID-19 outbreak 

In response to the COVID-19 outbreak, at least 12 states have modified their candidate filing procedures for certain elections. Today, we examine this topic in depth, reviewing both the permanent statutory framework for candidate ballot access and the temporary modifications made in response to the coronavirus pandemic.

Background

In order to have his or her name printed on the ballot for an elective office in any given state, a candidate must meet a variety of state-specific filing requirements and deadlines. These ballot access laws are established and enforced at the state level. A candidate must prepare to meet ballot access requirements well in advance of primary and general elections. 

Broadly speaking, there are three ways by which an individual can become a ballot-qualified candidate for elective office: 

  1. An individual can seek the nomination of a state-recognized political party. In this case, a candidate generally participates in partisan primaries. He or she may be required to collect petition signatures, pay filing fees, or both. 
  2. An individual can run as an unaffiliated (i.e., independent) candidate. Like partisan candidates, he or she may be required to collect petition signatures, pay filing fees, or both. 
  3. An individual can run as a write-in candidate. In states that permit write-in voting, a candidate may be required to file some paperwork in advance in order to have his or her votes tallied. These candidates are generally not subject to the same petition and filing fee requirements as partisan and unaffiliated candidates. 

Modifications in response to the COVID-19 outbreak

Some of the social distancing policies implemented by state and local governments have complicated efforts by candidates to collect petition signatures in person. As a result, candidates have sought modifications to petition signature requirements, filing deadlines, and other candidate filing procedures. 

At least 12 states have made such modifications. These states are shaded in blue in the map below. State-specific details are provided below the map. 

  • Florida: Candidates authorized to submit qualifying documents, including signed petitions, electronically.
  • Georgia: Petition deadline for minor-party and unaffiliated candidates postponed to August 14, 2020.
  • Illinois: Candidates for state-level office exempted from filing statements of economic interests for the duration of the governor’s disaster proclamation period and for 30 days thereafter. Unaffiliated and new-party candidates authorized to collect petition signatures electronically. Unaffiliated and new-party candidate filing deadline extended to August 7, 2020. Petition signature requirements for unaffiliated and new-party candidates reduced to 10 percent of their original numbers.
  • Maine: Petition deadline for unaffiliated candidates postponed to July 1, 2020.
  • Massachusetts: Candidate filing deadlines for district and county races postponed to May 5, 2020, and June 2, 2020, respectively. Candidate petition signature requirements reduced to 50 percent of their statutory requirements. Candidates authorized to collect petition signatures electronically.
  • Michigan: Petition signature requirements for select primary candidates reduced to 50 percent of their original numbers. Candidate filing deadline extended from April 21, 2020, to May 8, 2020. Election officials directed to develop procedures allowing for the collection and submission of electronic petition signatures. Modifications applied only to candidates for whom there is no filing fee option (i.e., candidates for statewide and judicial office). 
    • Note: On May 5, the United States Court of Appeals for the Sixth Circuit ruled that the district court judge who ordered the aforementioned modifications had erred in doing so. Although the appeals court agreed that the original requirements were unconstitutional, it found that the lower court had exceeded its authority in mandating new requirements to the state. 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.”  
  • New Jersey: Candidates permitted to collect petition signatures electronically and submit petitions online. Petition deadline for unaffiliated candidates for non-presidential office extended to July 7, 2020.
  • New York: Petition signature requirements for primary candidates reduced and signature-gathering process suspended effective March 17, 2020.
  • Texas: Petition deadline for independent candidates for non-presidential office extended to August 13, 2020.
  • Utah: Candidates and/or campaigns authorized to deliver petition sheets to voters electronically. Voters permitted to return signed petition sheets electronically or by mail.
  • Vermont: Candidate petition signature gathering requirements suspended for the August 2020 primary and November 2020 general elections.
  • Virginia: Petition signature requirement for Republican primary candidates for the United States Senate reduced to 3,500. Petition deadline for independent candidates for non-presidential office extended to June 23, 2020.


Lawsuits 

A number of these modifications have been instituted by court order. The number of lawsuits involving election administration issues in light of the COVID-19 outbreak has been increasing in recent weeks. To date, we’ve tracked 43 such lawsuits across 24 different states. Orders have been issued, or settlements have been reached, in 15 of those lawsuits. 

For example, on April 17, the Massachusetts Supreme Judicial Court issued an order extending the candidate filing deadlines for district and county races to May 5 and June 2, respectively. The high court reduced candidate petition signatures requirements to 50 percent of their statutory requirements. The court also authorized candidates to collect petition signatures electronically.
 

Election postponements

Since our April 22 edition, we’ve tracked the following election postponement updates: 

  • New York: 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 preference primary, which the board had previously canceled, on June 23. The state board of elections had canceled the primary after removing from the ballot all candidates who had suspended or terminated their campaigns.


To date, 20 states and one territory have postponed or canceled upcoming state-level elections. These states are shaded in dark blue on the map below. In another five states, state-level officials have modified, or have authorized the modification of, municipal election dates. These states are shaded in light blue on the map below.

Absentee/mail-in voting modifications

Since our April 22 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Connecticut: Mail-in ballot applications sent automatically to all voters in the August 11, 2020, statewide primary and November 3, 2020, general election.
  • Kentucky: Absentee/mail-in voting eligibility requirements suspended, allowing all voters to cast ballots by mail in the June 23, 2020, primary election.
  • New York: Absentee/mail-in voting eligibility requirements suspended, allowing all voters to cast ballots by mail in the June 23, 2020, primary election. Mail-in ballot applications sent automatically to all voters in the June 23, 2020, primary.
  • Oklahoma: The state supreme court struck down a requirement that absentee ballots be notarized, finding 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.
  • Virginia: A federal court approved a partial settlement suspending the witness requirement for absentee ballots. The suspension applies to the June 23, 2020, primary election.


To date, 26 states have made modifications to 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 select upcoming 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: Eleven states (Connecticut, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are sending mail-in ballot applications automatically to all eligible voters in advance of select upcoming elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Seven states (Delaware, Indiana, Massachusetts, New Hampshire, New York, Texas, and Virginia) have expanded absentee voting eligibility in select upcoming elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Two states (Ohio and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in select elections. These states are shaded in dark gray in the map below. 
  • Procedure changes: Two states (Oklahoma and Virginia) have made other changes to their absentee/mail-in voting procedures that do not fall into one of the four categories listed above. These states are shaded in light gray in the map below. 


Legislation tracking 


To date, we have tracked 92 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 5, 2020


Looking ahead 

In light of the COVID-19 outbreak, the U.S. Department of Commerce and the U.S. Census Bureau announced on April 13 that they would ask Congress for a four-month extension of the statutory deadline for delivering redistricting-related census data to the states. If that extension is granted, the states will receive that data in July 2021 as opposed to February or March 2021. 

This will have a considerable impact on the redistricting process in the states. In a recent newsletter, political pundit Jim Ellis outlined some of the complications that might result from this proposed postponement: 

“First, the political leaders in New Jersey and Virginia, places that have 2021 elections and need their new state legislative lines in place well before that date, would find themselves in a difficult position. Initially, the two states would certainly have to postpone their primary elections because both nominate their general election candidates in June.  Beyond that, it is possible they would have to even postpone their general elections into [2022] or run in the obsolete boundaries that were drawn back in 2011.  In either case, we could expect lawsuits being launched from whichever party loses a particular electoral contest.” 

“Other states would be affected, too.  Many have legal deadlines in place mandating that the new redistricting maps for state legislature and the US House delegation be adopted before the legislative sessions ends.  Most states recess before mid-summer, which would mean special sessions being called if the legislature is to act.” 

In our May 20 issue, we will explore this issue in greater depth. 



The Ballot Bulletin April 22, 2020

States modify absentee/mail-in voting procedures in response to the COVID-19 pandemic 

In response to the COVID-19 pandemic, at least 22 states have modified their absentee/mail-in voting procedures for select upcoming elections. Today, we examine this topic in depth, reviewing both the permanent statutory framework for absentee/mail-in voting and the temporary modifications made in response to the current public health emergency. We also turn our attention to the legal mechanisms for making these changes and the emerging debate surrounding the issue.

Background

Every state provides for some mechanism whereby voters can cast ballots without visiting a physical polling place. The terms absentee voting, voting by mail, all-mall voting, or voting from home are sometimes used to describe these methods, which can be divided into two categories: automatic mail-in ballot systems and request-required mail-in ballot systems.

Automatic mail-in ballot systems require that all eligible voters automatically receive either a ballot or ballot application. These are sometimes referred to as all-mail voting systems. Access to mail-in voting is not restricted to voters meeting certain eligibility criteria.

Request-required mail-in ballot systems require that eligible voters initiate the process for receiving, and casting, mail-in ballots. These have traditionally been described as absentee voting systems. Access to mail-in voting may be restricted to voters meeting certain eligibility criteria.

The map below summarizes the existing statutory absentee/mail-in voting procedures in the states. These are the permanent rules that govern absentee/mail-in voting under normal circumstances and in the absence of temporary emergency measures. Five states (shaded in blue) provide for automatic mail-in voting. Twenty-nine states (shaded in yellow) allow any voter to request a mail-in ballot. The remaining 16 states (shaded in gray) restrict absentee/mail-in voting to those who provide a qualified excuse for casting their ballots by mail.

Modifications in response to the COVID-19 outbreak

To date, at least 22 states have modified their statutory absentee/mail-in voting procedures in response to the COVID-19 outbreak. These modifications can be divided into four broad categories:

  • Automatic mail-in ballots: Six states (California, Idaho, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of select upcoming 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: Seven states (Georgia, Iowa, Michigan, Nebraska, North Dakota, South Dakota, and West Virginia) and the District of Columbia are sending mail-in ballot applications automatically to all eligible voters in advance of select upcoming elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Seven states (Delaware, Indiana, Massachusetts, New Hampshire, New York, Texas, and Virginia) have expanded absentee voting eligibility in select upcoming elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Two states (Ohio and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in select upcoming elections. These states are shaded in dark gray in the map below. 

Mechanisms for changing absentee/mail-in voting procedures

At least eight states have statutes dealing specifically with the expansion of absentee/mail-in voting in response to an emergency: Alabama, Hawaii, Illinois, Indiana, Kansas, Maryland, Utah, and Virginia. 

Another eight states, at a minimum, have statutes granting state officials the authority to make general changes to election procedures in response to an emergency. The authority to expand absentee/mail-in voting may be permitted under these statutes. These states are California, Iowa, Louisiana, Maine, North Carolina, Oklahoma, West Virginia, and Wyoming.

Debate 

Expansions on absentee/mail-in voting procedures have prompted considerable debate in recent weeks. A couple of representative examples of recent commentary are presented below. Additional commentary can be accessed here.

Ronald J. Krotoszynski, Jr., writing for The Atlantic on March 27, said the following in favor of expanding absentee/mail-in voting: 

“Today, and possibly even this November, the potential cost of casting a ballot in person on Election Day could be considerably higher, given that crowds and shared surfaces (such as the interface of an electronic voting machine) present perfect environments for spreading the coronavirus. The election is too important to let fall prey to this virus. Americans must ensure that the country’s democratic process moves forward as scheduled. And there is one time-tested and straightforward way to do that: nationwide vote by mail. The question of expanding access to voting by mail should not be left to the states to decide. The country needs a federal law that ensures all citizens may exercise their right to vote, without having to jeopardize their health. Congress should swiftly pass a law that mandates the option of early voting by mail in all 50 states and the District of Columbia.” 

Tierney Sneed, writing for Talking Points Memo on April 14, said the following about the challenges involved with expanding absentee/mail-in voting: 

“Only a handful of the states have the infrastructure already in place to handle the expansion of mail-in voting the coronavirus is expected to bring about. For the rest of the country, election officials will have to work aggressively to overhaul their voting procedures so that, for public health reasons, in-person interactions can be limited. In a vast majority of states, officials will have to consider buying new equipment, retraining or hiring additional staff, revamping the current way they handle absentee ballots, and changing procedural deadlines — which in some places require the cooperation of the legislature. Experts anticipate bumps in the road — if not major hurdles — everywhere. Whether other states repeat last week’s primary fiasco in Wisconsin will depend on how proactive policy makers are in reconfiguring their systems and what level of absentee voting they will be starting from.”

Election postponements

Since our April 8 edition, the following states have postponed upcoming elections: 

  • Connecticut: On April 17, Gov. Ned Lamont (D) issued an executive order postponing the state’s presidential preference primary to Aug. 11, the same day as the statewide primary election. 
    • This marked the second postponement of Connecticut’s presidential preference primary. The primary, originally scheduled to take place on April 28, was first postponed to June 2.
  • Georgia: On April 9, Secretary of State Brad Raffensperger (R) announced the postponement of Georgia’s statewide and presidential primary elections to June 9. The primary runoff was postponed to Aug. 11. 
    • The state had previously postponed its presidential primary to May 19, the original date of its statewide primary.
  • Louisiana: On April 14, Gov. John Bel Edwards (D) issued Proclamation Number 46 JBE2020, postponing the state’s presidential preference primary election to July 11. 
    • This marked the second postponement of Louisiana’s presidential preference primary. The primary, originally scheduled to take place on April 4, was first postponed to June 20.
  • Maine: On April 10, Gov.Janet Mills (D) issued Executive Order No. 39 FY 19/20, postponing Maine’s statewide primary election, originally scheduled for June 9, to July 14.
  • New Jersey: On April 8, Gov. Phil Murphy (D) issued Executive Order No. 120, postponing the statewide primary election, originally scheduled for June 2, to July 7.
  • Virginia: On April 8, Gov. Ralph Northam (D) postponed the statewide primary, originally scheduled for June 9, to 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. In another five states, state-level officials have modified, or have authorized the modification of, municipal election dates. These states are shaded in light blue on the map below.

Legislation tracking 

To date, we have tracked 55 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 April 21, 2020

Looking ahead 

In our May 6 issue, we will examine the modifications states are making to candidate filing procedures in response to the COVID-19 outbreak.



Oklahoma Governor Kevin Stitt (R) sets June primary election date for Medicaid expansion question

On April 17, 2020, Oklahoma Governor Kevin Stitt (R) declared that State Question 802, which would expand Medicaid, will appear on the June 30 primary ballot rather than the November 3 general election ballot.

Initiatives in Oklahoma are generally placed on the next general election ballot following signature verification, but the governor may choose to call a special election or place the measure on the primary ballot. In 2018, Oklahoma Governor Mary Fallin placed State Question 788, the medical marijuana initiative, on the June primary ballot. Prior to 2018, a governor had not selected a date different from the general election for an initiative since 2005.

State Question 802 would expand Medicaid in Oklahoma under the Affordable Care Act (ACA), also known as Obamacare. It would provide Medicaid coverage for certain low-income adults between 18 and 65 with incomes below 133% of the federal poverty level (FPL). For 2020, the FPL is $12,490 for individuals and $25,750 for a family of four. Because the ACA includes a 5% income disregard, this measure would effectively expand Medicaid to those with incomes below 138% of the federal poverty level.

Medicaid is a government program that provides medical insurance to groups of low-income people and individuals with disabilities. The ACA provided for the expansion of Medicaid to cover all individuals earning incomes up to 138% of the federal poverty level. In 2012, the U.S. Supreme Court ruled in NFIB v. Sebelius that the federal government could not withhold funds from states that refused to expand Medicaid. The ruling had the practical effect of making Medicaid expansion optional for states. In 2018, the federal government financed 94% of the costs of state Medicaid expansion. For 2020 and subsequent years, the federal government was set to cover 90% of the costs. As of 2020, 14 states, had chosen not to expand Medicaid according to the ACA.

Oklahomans Decide Healthcare is leading the campaign in support of the initiative. Oklahomans Decide Healthcare said, “Expanding Medicaid will [make] our families healthier and our economy stronger. It will deliver healthcare to those who need it, including many parents, seniors, and hardworking folks who earn less than $17,000 a year. It will also bring more than a billion of our tax dollars home from Washington, D.C. every year to create jobs, boost our economy, and keep our rural hospitals open. That’s money that 36 other states that have expanded Medicaid get, but Oklahoma has lost out on for years.” State Question 802 is supported by the Oklahoma Hospital Association, State Medical Association, Osteopathic Association, and Nurses Association.

A spokeswoman for Governor Kevin Stitt (R) said, “If SQ 802 passes, our state agencies will experience deep cuts, because the ballot measure offers no mechanism to pay for it. The governor does not support this unfunded mandate.”

In November 2018, voters in Idaho, Montana, Nebraska, and Utah decided ballot initiatives concerning Medicaid expansion and the funding of expanded Medicaid coverage. In January 2018, voters in Oregon approved Measure 101, thereby upholding 2017 legislation to provide funding for the state’s portion of costs for expanded Medicaid coverage through a tax on healthcare insurance and the revenue of certain hospitals. In 2017, voters in Maine approved the first citizen initiative used to implement an optional provision of Obamacare.



A majority of Anchorage ballot measure races too close to call

Voters in Anchorage, Alaska, decided 13 ballot measures at the election on April 7, 2020. With 75% of ballots processed, 10 of the 13 were still too close to call according to the April 8 results update.

Here’s a summary of four notable measures:

Proposition 2, a bond issue for area-wide school capital improvements, was ahead with 58%. The measure would authorize the issuance of $82.833 million in bonds for capital improvements to schools at an area-wide tax rate of $18.45 per $100,000 in assessed property value.

Proposition 11, the Marijuana Consumption at Retail Stores Measure, was defeated with 64% opposed. The measure would have permitted licensed retail marijuana stores to allow inhaling or smoking marijuana, in addition to eating marijuana edibles, within their marijuana consumption areas.

Proposition 12, the City Assembly Size Amendment, which would increase the size of the Anchorage Assembly from 11 members to 12 members, was ahead with 59% in favor.

Proposition 13, the Alcohol Sales Tax Amendment, was ahead by 2,000 votes (52%). The measure would levy a 5% tax on alcoholic beverage retail sales and dedicating revenue from the tax toward (a) police, first responders, and criminal justice personnel, (b) addressing child abuse, sexual assault, and domestic violence, and (c) programs related to substance misuse treatment and prevention, mental and behavioral health, and homelessness. Proposition 9, which would have enacted a similar tax on alcoholic beverages, was defeated in 2019 with 53.76% opposed.

Below are the unofficial election results for the other measures as of April 8:

• Proposition 1, the Area-wide Access Roads Bond Issue, was ahead with 50.4% in favor.
• Proposition 3, the Roads and Drainage Service Area Bond Issue, was ahead with 58% in favor.
• Proposition 4, the Fire Service Area Bond Issue, was approved with 67% in favor.
• Proposition 5, the Parks and Recreation Service Area Bond Issue, was ahead with 54% in favor.
• Proposition 6, the Metropolitan Police Service Area Bond Issue, was ahead with 56% in favor.
• Proposition 7, the Areawide Facilities Bond Issue, was ahead with 56% in favor.
• Proposition 8, the Areawide Transit and Emergency Services Bond Issue, was ahead with 59% in favor.
• Proposition 9, the Property Tax for Medical Equipment and Systems, was approved with 66% in favor.
• Proposition 10, the Girdwood Valley Service Area Bond Issue, was behind with 53% opposed.

Results will be updated daily until official election results are certified on April 21.

Additional reading:
April 7, 2020 ballot measures in Alaska



Bitnami