TagBallot Bulletin

U.S. Census Bureau postpones release of apportionment report, redistricting data

Ballot Bulletin by Ballotpedia

On Jan. 27, Kathleen Styles, a U.S. Census Bureau official, announced that the bureau would deliver its final apportionment report by April 30. Styles also said the bureau hoped to release redistricting data after July 31. 

The U.S. census is conducted every 10 years and kickstarts the entire redistricting process. Under its original operational timeline, the census bureau was scheduled to deliver apportionment counts by Dec. 31, 2020, and redistricting data by March 31.

On June 16, 2020, in light of the coronavirus outbreak in the United States, the census bureau proposed postponing these statutory deadlines. However, Congress did not act on this proposal. Subsequent litigation over a Trump administration executive order to exclude “aliens who are not in a lawful immigration status under the Immigration and Nationality Act” from the final apportionment counts resulted in further delays. 

The U.S. Census and congressional reapportionment 

Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. There are 435 seats in the U.S. House of Representatives. Consequently, a state may gain seats in the House if its population grows or lose seats if its population decreases, relative to populations in other states. 

Arizona, Colorado, Florida, Montana, North Carolina, Oregon, and Texas are all expected to gain between one and three seats each. Meanwhile, Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia are expected to lose seats. These estimates are subject to change. 

Federal law requires that congressional and state legislative districts have equal populations (as nearly as practicable). In order to meet this requirement, redistricting authorities rely on the detailed data provided by the census bureau. 

What comes next? 

It remains to be seen how most states will respond to this postponement. The question is especially pressing for New Jersey and Virginia, both of which conduct state legislative elections this year. 

At least two states – California and New Jersey – have already provided for adjustments to their respective redistricting schedules.

  • California: On July 17, 2020, the California Supreme Court unanimously ordered that the state extend its constitutional and statutory deadlines for congressional and state legislative redistricting by at least four months. The court directed the California Citizens Redistricting Commission to release draft district plans by Nov. 1, 2021, and final district plans by Dec. 15, 2021. The original deadlines were July 1, 2021, and Aug. 15, 2021, respectively. The court provided for further extensions if the federal government does not transmit the necessary data by July 31, 2021. 
  • New Jersey: On Nov. 3, 2020, New Jersey voters approved Public Question 3, a constitutional amendment postponing state legislative redistricting until after the Nov. 2, 2021, election if the census bureau failed to deliver redistricting data by Feb. 15, 2021. As a result, the existing legislative district maps will remain in force until 2023. The amendment also provides for postponements in future redistricting cycles if the federal government fails to deliver census data by Feb. 15. 

New York City uses ranked-choice voting for the first time since 1945

On Feb. 2, New York City held a special election for City Council District 24 using ranked-choice voting. This is the city’s first use of ranked-choice voting under a 2019 charter amendment providing for its use in select municipal primary and special elections. 

New York City previously used ranked-choice voting in city council elections between 1937 and 1945. 

2019 charter amendment

On Nov. 5, 2019, New York City voters approved a charter amendment providing for the use of ranked-choice voting in municipal primary and special elections for the following offices:

  • Mayor
  • Public advocate
  • Comptroller
  • Borough president
  • City council

Voters approved the charter amendment 73.6% to 26.4%. Now, voters can rank up to five candidates for a given office in order of preference. A candidate who wins a majority of first-preference votes wins the election outright. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, raising the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process repeats until a candidate wins an outright majority. 

What comes next? 

The city will conduct its June 22 primaries for mayor, city council, public advocate, and comptroller using ranked-choice voting. Additionally, the city has two special ranked-choice voting elections scheduled this year: City Council District 31 on Feb. 23 and City Council Districts 11 and 15 on March 23.

In other electoral systems news … 

On March 2, St. Louis, Missouri, will use approval voting in its primaries for mayor, comptroller, president of the Board of Aldermen, and the Board of Aldermen. 

Under its approval voting system, approved via a ballot initiative on Nov. 3, 2020, St. Louis voters can vote for one or more candidates in the primaries for the aforementioned offices. The top two vote-getters in each race will advance to the April 6 general election. 


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 60 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of Feb. 2, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 83 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of Feb. 2, 2021

Primary systems legislation: So far this year, we’ve tracked at least five bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of Feb. 2, 2021



New York state court upholds ranked-choice voting for Feb. municipal special election in NYC

Ballot Bulletin by Ballotpedia

New York: State court upholds ranked-choice voting for Feb. municipal special election in NYC

On Dec. 16, 2020, a state trial court declined to block the implementation of ranked-choice voting in the municipal special election scheduled for Feb. 2. 

What’s at issue 

On Nov. 5, 2019, New York City voters approved a charter amendment providing for the use of ranked-choice voting in municipal primary and special elections for the following offices:

  • Mayor
  • Public advocate
  • Comptroller
  • Borough president
  • City council

Voters approved the charter amendment 73.61% to 26.39%. Now, voters can rank up to five candidates for a given office in order of preference. A candidate who wins a majority of first-preference votes wins the election outright. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, raising the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process repeats until a candidate wins an outright majority.

On Dec. 8, 2020, a group of plaintiffs, including several city council members, sued the New York City Board of Elections and the New York City Campaign Finance Board in the New York County Supreme Court, the trial court for Manhattan. The plaintiffs alleged the city’s “stated plan to use [ranked-choice voting] in violation of the City Charter’s requirements, if allowed to proceed, will deprive New York City’s limited-English proficient population of the right to vote for and elect candidates of their choice in violation of the Voting Rights Act.” The plaintiffs sought a temporary restraining order barring election officials from using ranked-choice voting, pending the development of a new rollout plan.

How the court ruled

On Dec. 16, Judge Carol Edmead rejected the plaintiffs’ request for a temporary restraining order. In her decision, Edmead first addressed questions over whether the court had jurisdiction to grant the plaintiffs’ requested remedy: 

As articulated by counsel for [the Defendants], CPLR § 6313(a) expressly provides that ‘[n]o temporary restraining order may be granted in an action…against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties.’ Here, the Board of Elections is statutorily required by the New York City Charter §1057 (g) to use RCV with respect to ‘certain primary elections and elections for which nominations were made by independent nominating petitions,’ which would include the February 2, 2021 special election. As such, Defendants argue that this Court lacks jurisdiction to grant a stay. The Court notes that Plaintiffs do not concede that this Court lacks jurisdiction to grant an interim stay under CPLR § 6313(a) nor do they agree that this jurisdictional issue is not in dispute. However, as the issue of jurisdiction is yet unresolved, the Court is disinclined to grant an interim stay. 

Edmead also declined the plaintiffs’ request for an expedited hearing schedule: 

According to counsel for Defendants, the overseas ballots are scheduled to be dispersed in two days on December 18, 2020. The Court finds that it would be improvident to hold an expedited preliminary injunction hearing as it may delay the dispersing of the overseas ballots.

What comes next? 

On Dec. 17, 2020, the plaintiffs appealed Edmead’s decision to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department. The appellate court has not yet taken any action on the appeal. 

The case name and number are Adams v. New York City (appellate court: pending; trial court: 160662/2020). 


Calif.: Appeals court affirms lower court ruling requiring district-based city council elections in Santa Clara

On Dec. 30, the California Sixth District Court of Appeal upheld a lower court’s ruling that Santa Clara’s at-large electoral system for city council seats violated the California Voting Rights Act. 

What’s at issue 

Section 14027 of the California Voting Rights Act provides that “an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” 

On Dec. 27, 2017, five Asian-American residents of Santa Clara sued the city in the Santa Clara County Superior Court, alleging that the at-large election system for city council seats violated Section 14027 of the California Voting Rights Act. Asian-Americans are a protected class under Section 14026 of that act. 

On June 16, 2018, Judge Thomas E. Kuhnle ruled in favor of the plaintiffs, finding the city liable for violating the act. The defendants appealed Kuhnle’s decision to the Sixth District Court of Appeal, arguing Kuhnle had “erred as a matter of law in concluding that racially polarized voting in five of 10 city council elections satisfied the standard for a cognizable voting rights claim, which requires a showing that the majority voting bloc in Santa Clara’s electorate ‘usually’ voted to defeat the candidate preferred by Asian-American voters.” 

In their appeal, the defendants cited the U.S. Supreme Court’s 1986 decision in Thornburg v. Gingles, which established the following criteria for proving vote dilution claims under the federal Voting Rights Act: 

  1. A minority group must demonstrate that it is large and compact enough to constitute a majority in a single-member district.
  2. A minority group must demonstrate that it is politically cohesive.
  3. A minority group must demonstrate that the majority group usually votes as a group to defeat the minority group’s preferred candidate.

The Sixth District heard oral argument in the case on Dec. 17, 2020. 

How the court ruled

A three-judge panel of the Sixth District unanimously affirmed the lower court’s decision. Judge Eugene Premo wrote the court’s opinion, which Judges Franklin Elia and Allison M. Danner joined. 

The City argues that apart from case law, simple logic contravenes the trial court’s application of the third Gingles factor. The City asserts that just as ‘[n]o one would say that a flipped coin “usually” lands on heads, because it is equally likely to land on tails,’ it cannot be said that Santa Clara’s city council elections are ‘usually’ characterized by racially polarized voting after the trial court found that to be true in only five of 10 elections. We find the City’s reasoning is sound in theory but flawed in practice. It ignores that whether a majority voting block is ‘usually’ able to defeat a cohesive minority group’s preferred candidate per Gingles third factor is not measured by mathematical formula but by the trial court’s searching assessment of statistical and other evidence presented. … It follows that the ‘usually’ threshold stated in the third Gingles factor does not as a matter of law preclude a determination of racially polarized voting when the factual findings point to an equal number of polarized and non-polarized elections over time.

Premo and Elia are Gov. George Deukmejian (R) appointees. Danner is a Gov. Jerry Brown (D) appointee. 

What comes next? 

Santa Clara City Attorney Brian Doyle said he was “obviously and understandably disappointed in the ruling.” He did not say whether the city would appeal the decision further.  

The case name and number are Yumori-Kaku et al. v. City of Santa Clara (appellate court: H046105; trial court: CV319862). 


Looking ahead: election policy legislation in 2021

With a new year underway, and state legislatures nationwide convening sessions over the next several weeks, let’s take a preliminary look at what kinds of election policy bills will be up for consideration this year.

Redistricting legislation: So far this year, we’ve tracked at least 16 redistricting-related bills up for consideration in state legislatures: four in New Jersey; three in New York; two each in Tennessee, Texas, Virginia, and Washington; and one in Indiana. 

Redistricting legislation in the United States, 2021 
Current as of Jan. 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 22 bills dealing with electoral systems that are up for consideration in state legislatures: eight in New Jersey; three each in New York, Missouri, and Virginia; and one each in Florida, Oklahoma, South Carolina, Texas, and Utah. 

Electoral systems legislation in the United States, 2021 
Current as of Jan. 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least two bills dealing with primary systems that are up for consideration in state legislatures: one each in New Jersey and Virginia. 

Primary systems legislation in the United States, 2021 
Current as of Jan. 5, 2021



Ballot Bulletin: Thirty-seven states, D.C. certify their election results

Ballot Bulletin by Ballotpedia

As of Dec. 2, 37 states and the District of Columbia have certified their election results. What does this mean, and how does it relate to the finalization of the presidential election? We tackle those questions in this week’s edition. 

What it means for election results to be certified 

The election results states and localities report after polls close on Election Day are preliminary returns. These initial counts are not the official results of the election. First, election officials at the local and state levels must canvass the returns to verify that each ballot cast in the election has been correctly counted. When the canvass is completed, officials must certify, or make official, the results of the election. 

Canvassing and certification are interrelated processes, and the terms are sometimes used interchangeably. We are focusing on the certification process specifically. 

States that have certified their results

To date, 37 states and the District of Columbia have certified their election results. These states are shaded blue on the map below.

These states have a total of 316 Electoral College electors, 148 of whom are pledged to President-elect Joe Biden (D). The remainder (168) are pledged to President Donald Trump (R).

What comes next? 

The following states will certify their results in the next two weeks. Certification deadlines, where available, are provided (as are Electoral College votes and projected winners):  

  • California: Dec. 11 (55; Biden)
  • Connecticut: Dec. 3 (7; Biden)
  • Hawaii: Not specified (4; Biden)
  • Illinois: Dec. 4 (20; Biden)
  • Maryland: Dec. 8 (10; Biden)
  • Missouri: Dec. 8 (10; Trump)
  • New Jersey: Dec. 8 (14; Biden)
  • New York: Dec. 7 (29; Biden)
  • Oregon: Dec. 3 (7; Biden)
  • Tennessee: Not specified (11; Trump)
  • Texas: Dec. 3 (38; Trump)
  • Washington:Dec. 3 (12; Biden)
  • West Virginia: Dec. 3 (5; Trump)

Federal law requires states to appoint their slates of Electoral College electors and settle any disputes related to the presidential election by Dec. 8. This is referred to as the safe-harbor provision

The 538 members of the Electoral College will meet in their respective state capitals on Dec. 14 to cast their votes. On Jan. 6, 2021, the newly elected Congress convenes in a joint session to count the electoral votes. 

Members of Congress can object to the results. If both a House and Senate member make a written objection to a state’s results, Congress will debate and vote on the objection’s merit. Electoral votes can be excluded only if both chambers vote to accept the objection. If a ticket receives 270 electoral votes(a majority of the 538 members of the Electoral College)the vice president (acting as Senate president) formally declares that individual winner of the election. 

For more information about these key dates and deadlines, see this article


Litigation update: Donald J. Trump for President, Inc. v. Boockvar


On Nov. 27, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously declined to postpone certification of the state’s election results, rejecting the Trump campaign’s claims of widespread voting irregularities.

What’s at issue, and how the lower court ruled 

On Nov. 9, the Trump campaign sued Secretary of the Commonwealth Kathy Boockvar (D) and several county-level officials, alleging multiple violations of the state election code and the U.S. Constitution. In their complaint, attorneys for the campaign said:

Plaintiffs seek an emergency order prohibiting Defendants from certifying the results of the General Election. In the alternative, Plaintiffs seek an emergency order prohibiting Defendants from certifying any results from the General Election that included the tabulation of absentee and mail-in ballots which do not comply with the Election Code, including, without limitation, the tabulation of absentee and mail-in ballots Trump Campaign’s watchers were prevented from observing or based on the tabulation of invalidly cast absentee and mail-in ballots which (i) lack a secrecy envelope, or contain on that envelope any text, mark, or symbol which reveals the elector’s identity, political affiliation, or candidate preference, (ii) do not include on the outside envelope a completed declaration that is dated and signed by the elector, or (iii) are delivered in-person by third parties for non-disabled voters. Lastly and in addition to the alternative requests for relief, Plaintiffs seek a permanent injunction requiring the County Election Boards to invalidate ballots cast by voters who were notified and given an opportunity to cure their invalidly cast mail-in ballot.

U.S. District Court Judge Matthew Brann heard oral arguments on Nov. 17. On Nov. 21, Brann dismissed the lawsuit, finding that the Trump campaign had presented “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

On Nov. 22, the Trump campaign appealed Brann’s decision to the Third Circuit, asking that the court postpone the certification of election results pending further court proceedings. The Third Circuit set an expedited schedule for considering the appeal.

How the court ruled 

On Nov. 27, a three-judge panel of the Third Circuit unanimously denied the Trump campaign’s request. Judge Stephanos Bibas (a Trump appointee) wrote for the court:

The campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

Judges Brooks Smith and Michael Chagares, both George W. Bush (R) appointees,  joined Bibas’ opinion. 

What comes next? 
Attorneys for the Trump campaign said they intended to appeal the Third Circuit’s decision to the U.S. Supreme Court. A formal filing had not been made as of Dec. 2.



In wake of election, 25 lawsuits filed over election’s conduct



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Post-election lawsuits have been filed in five states
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In wake of election, 25 lawsuits filed over election’s conduct

In the week since Election Day, 25 lawsuits disputing some aspect of the election’s conduct have been filed. President Donald Trump’s (R) campaign organization has filed 15 of those lawsuits.

What are the issues? 

Post-election lawsuits can involve three broad issues:

  • Counting procedures: Lawsuits over counting procedures challenge some aspect of a jurisdiction’s procedures for processing, verifying, or counting ballots. These challenges most often apply to absentee/mail-in ballots, but they can also involve ballots cast in person. Thirteen post-election lawsuits – 54 percent of the total  – involve disputes over counting procedures. 
  • Ballot/voter challenges: Lawsuits can also challenge the validity of groups of ballots, or the eligibility of groups of voters. These challenges generally seek to invalidate or remove disputed ballots from the final count. Eleven post-election lawsuits – 46 percent of the total – are ballot/voter challenges. 
  • Recount disputes: If a formal recount is conducted, one of the parties involved in the process can file a lawsuit challenging its conduct. No lawsuits over recount procedures have been filed.

Where have lawsuits been filed?

Post-election lawsuits have been filed in five states: Arizona, Georgia, Michigan, Nevada, and Pennsylvania.

  • Arizona: 2 lawsuits
  • Georgia: 1 lawsuit
  • Michigan: 5 lawsuits
  • Nevada: 3 lawsuits
  • Pennsylvania: 13 lawsuits

Trump campaign lawsuits 

Since Election Day, the Trump campaign has filed 15 lawsuits: one in Arizona, one in Georgia, two in Michigan, two in Nevada, and nine in Pennsylvania.

Arizona: 1 lawsuit

  • Donald J. Trump for President, Inc. v. Hobbs
    • Court: Maricopa County Superior Court
    • Issue: Whether ballots with facial irregularities (e.g., apparent overvotes, stray markings, etc.) cast in-person on Election Day were illegally disqualified without additional review.
    • Outcome: Pending

Georgia: 1 lawsuit

  • In re: enforcement of election laws and securing ballots cast or received after 7:00 P.M. on November 3, 2020
    • Court: Chatham County Superior Court
    • Issue: Whether absentee/mail-in ballots received after the statutory receipt deadline had been illegally accepted and mixed with ballots received before the deadline.
    • Outcome: On Nov. 5, Judge James F. Bass, Jr., dismissed the lawsuit: “[The] Court finds that there is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on Election Day, thereby making those ballots invalid. Additionally, there is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.”

Michigan: 2 lawsuits (1 original lawsuit and 1 appeal)

  • Donald J. Trump for President, Inc. v. Benson
    • Court: Michigan Court of Appeals (lower court: Michigan Court of Claims)
    • Issue: Whether an election challenger was illegally prevented from participating in the absentee/mail-in ballot review process.
    • Outcome: On Nov. 6, Judge Cynthia Stephens denied the campaign’s request to suspend the processing and counting of absentee/mail-in ballots, citing “problems with the factual and evidentiary record.” The campaign appealed Stephens’ decision to the Michigan Court of Appeals.

Nevada: 2 lawsuits (1 original lawsuit and 1 appeal)

  • Kraus v. Cegavske (Donald J. Trump for President, Inc. v. Gloria in the lower court)
    • Court: Nevada Supreme Court (lower court: Clark County District Court)
    • Issue: Whether Clark County election officials could use artificial intelligence to verify mail-in ballot signatures and make copies of ballots whose originals could not be machine-processed.
    • Outcome: On Nov. 3, the Nevada Supreme Court declined to block a lower court’s order allowing the Clark County registrar to use artificial intelligence to verify mail-in ballot signatures and make copies of ballots whose originals could not be machine-processed. The state supreme court found that the campaign had not demonstrated “a sufficient likelihood of success to merit a stay or injunction.” The court has not issued a ruling on the merits.

Pennsylvania: 9 lawsuits (6 original lawsuits and 3 appeals)

  • Donald J. Trump for President, Inc. v. Boockvar
    • Court: U.S. District Court for the Middle District of Pennsylvania
    • Issue: Whether some absentee and mail-in ballots were accepted and counted in violation of state law, and whether those ballots should be stricken from the count.
    • Outcome: Pending
  • Donald J. Trump for President, Inc. v. Boockvar
    • Court: Pennsylvania Commonwealth Court
    • Issue: Whether the secretary of the commonwealth illegally extended the deadline for mail-in voters to provide missing proof of identification after submitting their ballots.
    • Outcome: On Nov. 5, Judge Mary Hannah Leavitt ordered election officials to “segregate ballots for which identification is received and verified on Nov. 10, 11, and 12 from ballots for which identification is received and verified on or before Nov. 9.” Leavitt has not issued a ruling on the merits.
  • Donald J. Trump for President, Inc. v. Philadelphia County Board of Elections
    • Court: U.S. District Court for the Eastern District of Pennsylvania
    • Issue: Whether the Philadelphia County Board of Elections violated state law and the U.S. Constitution and declined to allow watchers for the Trump campaign and the Republican Party to observe the mail-in ballot counting process.
    • Outcome: The parties to the lawsuit agreed to allow 60 observers each from the Democratic and Republican parties. On Nov. 5, the court dismissed the lawsuit as moot in light of this agreement.
  • In re: canvass of absentee and mail-in ballots of November 3, 2020, general election
    • Court: Montgomery County Court of Common Pleas
    • Issue: Whether Montgomery County election officials illegally counted approximately 600 absentee and mail-in ballots for which the outer envelope declaration had not been filled out.
    • Outcome: Pending
  • In re: canvassing observation; Appeal of: Donald J. Trump for President, Inc.
    • Court: Pennsylvania Supreme Court (on appeal from the Pennsylvania Commonwealth Court; lower court: Philadelphia County Court of Common Pleas)
    • Issue: Whether candidates and their representatives can observe aspects of the canvassing process from within 6 feet of election workers.
    • Outcome: On Nov. 5, Pennsylvania Commonwealth Court Judge Christine Fizzano Cannon ordered the Philadelphia Board of Elections to allow “all candidates, watchers, or candidate representatives … [to be] permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including wearing masks and maintaining social distancing.” Cannon overturned a Philadelphia County Court of Common Pleas ruling, which had upheld a rule requiring observations to take place with at least 6 feet separating the observer from the election worker. Democrats appealed Cannon’s ruling to the state supreme court.
  • In re: pre-canvass of absentee and mail-in ballots of November 3, 2020, general election
    • Court: Bucks County Court of Common Pleas
    • Issue: Whether the Bucks County Board of Elections violated state law by allowing the disclosure of voter identification information for mail-in ballots voided during the pre-canvass meeting prior to the close of polls .
    • Outcome: Pending
  • Republican Party of Pennsylvania v. Boockvar
    • Court: U.S. Supreme Court
    • Issue: Whether a state supreme court order extending the mail-in ballot receipt deadline to Nov. 6, overriding the statutory receipt deadline of Nov. 3, was legal.
    • Outcome: Associate Justice Samuel Alito ordered county election officials to segregate and separately count mail-in ballots received between 8 p.m. on Nov. 3 and 5 p.m. on Nov. 6. He referred the matter to the full court, which has not issued a ruling on the merits.


Absentee/mail-in voting modifications in the general election

With the general election over, let’s take a look back at the modifications states made to their absentee/mail-in voting procedures in light of the COVID-19 pandemic.

All told, 37 states modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

  • Automatic absentee/mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots automatically to all eligible voters. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications automatically to all eligible voters. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) expanded absentee/mail-in voting eligibility. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Maine, Minnesota, Mississippi, North Carolina, and Pennsylvania) extended absentee/mail-in ballot application or submission deadlines. These states are shaded in dark gray in the map below.
  • Other process changes: Four states (Alaska, Ohio, Texas, and Virginia) made other modifications to their absentee/mail-in ballot procedures. These states are shaded in gray in the map below.


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Zuckerberg, Chan donate an additional $100 million for state, local election administration efforts

On Oct. 13, Facebook CEO Mark Zuckerberg and his wife, Dr. Priscilla Chan, announced they would donate an additional $100 million to the Center for Tech and Civic Life. In a Facebook post announcing the grants, Zuckerberg said the money was intended “to support election officials with the infrastructure they need to administer the vote – including voting equipment, PPE for poll workers and hiring additional poll staff.”

In total, Zuckerberg and Chan have donated $350 million to the Center for Tech and Civic Life. They have also donated $50 million to the Center for Election Innovation and Research, saying the money was intended to help “election officials across the nation reach their voters with critical information about voter registration, mail voting, early voting, polling locations and hours, and the vote-counting process.”

About the Center for Tech and Civic Life and the Center for Election Innovation and Research

The Center for Tech and Civic Life (CTCL) describes itself as “a nonpartisan nonprofit that uses technology to improve the way local governments and communities interact.” The nonprofit Center for Election Innovation and Research (CEIR) says its mission is “to build voter trust and confidence, increase voter participation, and improve the efficiency of election administration.”

Both CTCL and CEIR are organized under Section 501(c)(3) of the Internal Revenue Code, which exempts charitable, religious, and educational organizations from federal income tax. These and other nonprofits must submit regular financial disclosure reports to the Internal Revenue Service. According to CTCL’s 2019 disclosure, the group had $1,414,981 in revenues and spent $1,119,630 in 2018. CEIR had $890,647 revenues and spent $515,837 in 2017 (the most recent year for which information is available).

About the donation and grants

CTCL is regranting its funds “to local election jurisdictions across the country to help ensure that they have the staffing, training, and equipment necessary so that this November every eligible voter can participate in a safe and timely way and that their vote is counted.” CTCL says these grants will be used to support:

  • Poll worker recruitment, training, and hazard pay
  • Polling place rental
  • Temporary staffing
  • Drive-through voting
  • Ballot processing equipment
  • Personal protective equipment for poll workers
  • Nonpartisan voter education

As of Oct. 8, CTCL had received more than 2,100 grant applications. Every eligible, legitimate election department that applies for a grant will receive one. The minimum grant amount is $5,000. Nearly 800 election departments covering jurisdictions with between 5,001 and 25,000 registered voters applied for grants. Election departments with fewer than 5,001 registered voters submitted nearly 700 applications, and election departments with between 25,001 and 100,000 registered voters submitted almost 800 applications. The remainder of applications came from larger jurisdictions.

What are the reactions?

Legal challenges

The Thomas More Society has filed lawsuits in Michigan, Minnesota, Pennsylvania, Wisconsin, Georgia, and Iowa in an attempt to block election administrators from accepting or using the grant funds. The group describes itself as a “national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.” Phill Kline, director of the group’s Amistad Project, said, “Privatizing the management of elections undermines the integrity of our elections because private donors may dictate where and how hundreds of millions of dollars will be managed in these states.”

On Oct. 14, Judge William Griesbach of the U.S. District Court for the Eastern District of Wisconsin declined to intervene and block several Wisconsin cities (including Green Bay, Kenosha, Madison, Milwaukee, and Racine) from accepting the grants.

Griesbach wrote, “The risk of skewing an election by providing additional private funding for conducting the election in certain areas of the State may be real. The record before the Court, however, does not provide the support needed for the Court to make such a determination, especially in light of the fact that over 100 additional Wisconsin municipalities received grants as well. Plaintiffs argue that the receipt of private funds for public elections also gives an appearance of impropriety. This may be true, as well. These are all matters that may merit a legislative response but the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL.” Griesbach is a George W. Bush (R) appointee.

Lawsuits in the other states are pending.

State legislation

On Sept. 29, Rep. Blake Miguez (R) introduced HB 51 in the Louisiana House of Representatives. HB 51 would prohibit state and local election officials from accepting or using private donations “for the purpose of funding election-related expenses during a declared state of emergency.”

On Oct. 13, the House voted 68-28 in favor of HB 51. Sixty-six Republicans, one Democrat, and one independent voted for the bill. Twenty-eight Democrats voted against it. The bill is pending in the Senate Committee on Senate and Government Affairs. A hearing is scheduled for Oct. 21.

Absentee/mail-in voting modifications since our last issue

Since our Oct. 7 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed a district court order suspending Alabama’s witness requirement for absentee/mail-in voters with underlying medical conditions. The panel also reversed the lower court’s order waiving photo identification requirements for voters 65 and older.
  • Alaska: On Oct. 12, the Alaska Supreme Court affirmed a lower court’s order suspending the state’s witness requirement for absentee/mail-in ballots.
  • Indiana: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit stayed a lower court’s order that had extended Indiana’s return deadlines for absentee/mail-in ballots. As a result, the original receipt deadline (noon on Election Day) was reinstated.
  • Michigan: On Oct. 16, a three-judge panel of the Michigan Court of Appeals reversed a lower court order that had extended Michigan’s receipt deadline for absentee/mail-in ballots. The appellate panel reinstated the original receipt deadline: 8 p.m. on Election Day.
  • Missouri: On Oct. 9, Judge Brian C. Wimes of the U.S. District Court for the Western District of Missouri issued an order requiring Missouri election authorities to accept mail-in ballots returned in person. However, on Oct. 10, Wimes stayed his order pending appeal, leaving the requirement that mail-in ballots be returned by mail in place.
  • North Carolina: On Oct. 19, the North Carolina State Board of Elections directed counties to accept absentee/mail-in ballots received by 5 p.m. on Nov. 12 and postmarked on or before Election Day. The state board of elections also issued new guidance on how voters can resolve problems with their absentee/mail-in ballots.
  • Ohio: On Oct. 9, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit stayed a district court’s order directing Secretary of State Frank LaRose (R) to allow counties to install absentee/mail-in ballot drop boxes at locations other than election board offices. As a result, LaRose’s initial order limiting drop boxes to one site per county was reinstated.
  • Pennsylvania: On Oct. 19, the U.S. Supreme Court declined to block the Pennsylvania Supreme Court’s order extending the receipt deadline for mail-in ballots to Nov. 6 for ballots postmarked on or before Election Day.
  • Tennessee: On Oct. 19, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit unanimously upheld a district court decision that temporarily suspended a Tennessee law requiring first-time voters to vote in person.
  • Texas: On Oct. 12, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld Gov. Greg Abbott’s (R) order restricting the number of absentee/mail-in ballot return locations to one per county.
  • Wisconsin: On Oct. 8, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit voted 2-1 to stay a lower court order that had extended registration and absentee/mail-in ballot return deadlines in Wisconsin.

To date, 37 states have modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

  • Automatic absentee/mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots automatically to all eligible voters in the general election. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications automatically to all eligible voters in the general election. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) either have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Maine, Minnesota, Mississippi, North Carolina, and Pennsylvania) have extended absentee/mail-in ballot application or submission deadlines in the general election. These states are shaded in dark gray in the map below.
  • Other process changes: Four states (Alaska, Ohio, Texas, and Virginia) have made other modifications to their absentee/mail-in ballot procedures in the general election. These states are shaded in gray in the map below.
M3Ydp-general-election-absentee-mail-in-voting-procedure-modifications (1).png

The following states have made other modifications to their voting procedures in the general election:

  • Arizona: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s order that had extended Arizona’s voter registration deadline. The court set Oct. 15 as the new registration deadline.
  • Virginia: On Oct. 14, Judge John A. Gibney of the U.S. District Court for the Eastern District of Virginia ordered that Virginia’s voter registration deadline be extended from Oct. 13 to Oct. 15.

Redistricting developments since our last issue

Since our Oct. 7 edition, we’ve tracked the following redistricting-related developments.

  • On Oct. 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for Nov. 30. The case originated in the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. census. The U.S. government is asking the Supreme Court to decide if the president can order the secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.
    • On July 21, President Donald Trump (R) issued a memorandum directing U.S. Secretary of Commerce Wilbur Ross to exclude individuals living unlawfully in the U.S. from the census apportionment base. A group of state and local governments filed suit against the federal government, arguing the policy violates the U.S. Constitution and laws governing the census and apportionment. The federal government argued that (1), the court did not have jurisdiction to review the claims, and (2), the policy is legal. The district court ruled in favor of the plaintiffs, finding the president had exceeded his authority in issuing the memorandum. The federal government appealed this decision directly to the U.S. Supreme Court.
    • The federal government has presented the following two questions to the high court:
      • Does the group of state and local governments have the legal right—or standing—to challenge the memorandum?
      • Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?

Litigation and legislation tracking

Litigation

To date, we have tracked 397 lawsuits and/or court orders involving election policy issues and the Covid-19 outbreak. Changes to election dates, procedures, and administration in response to the coronavirus (COVID-19) pandemic, 2020#Relevant litigationClick here to view the complete list of lawsuits and court orders.

Legislation

To date, we have tracked 341 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

COVID-19 election bills October 21.png


In North Carolina, South Carolina, overlapping court orders modify absentee/mail-in procedures

With 27 days until Election Day, overlapping court orders in North Carolina and South Carolina have modified absentee/mail-in voting procedures.

North Carolina

On Sept. 22, the North Carolina State Board of Elections announced a series of proposed modifications to the state’s absentee/mail-in voting procedures:

  • Absentee/mail-in ballot receipt deadline extended to 5 p.m. on Nov. 12 for ballots postmarked on or before Election Day.
  • Voters allowed to submit affidavits to their county election boards to cure the following ballot issues:
    • Voter failed to sign return paperwork, or signed in the incorrect place.
    • Witness or assistant did not print name on return paperwork.
    • Witness or assistant did not print address on return paperwork.
    • Witness or assistant failed to sign return paperwork, or signed in the incorrect place.

The modifications resulted from a settlement between the state board of elections and the North Carolina Alliance for Retired Americans.

On Oct. 2, Judge Bryan Collins of the Wake County Superior Court approved the terms of the settlement.

However, on Oct. 3, Judge James Dever of the U.S. District Court for the Eastern District of North Carolina issued a temporary restraining order blocking the settlement. Dever also consolidated three related federal lawsuits involving the state’s absentee/mail-in voting procedures and transferred them to Judge William Osteen of the U.S. District Court for the Middle District of North Carolina.

What happens now? Dever’s temporary restraining order is scheduled to expire Oct. 16.

As of Oct. 4, the state had classified 7,272 absentee/mail-in ballots as “pending cure,” meaning that these ballots are missing some required information. These ballots would be subject to the curing provisions of the settlement agreement if it stands. According to ABC News, county elections officials have been instructed to tell voters who inquire about the status of their ballots, “Currently the cure process is being considered by the courts. We will contact you soon with more information.”

South Carolina

On Sept. 18, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina issued an order suspending South Carolina’s witness requirement for absentee/mail-in ballots. Childs is a Barack Obama (D) appointee.

That decision was appealed to a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. On Sept. 24, the panel voted 2-1 to reverse Child’s order, reinstating the witness requirement. Judges Harvie Wilkinson and Steven Agee, Ronald Reagan (R) and George W. Bush (R) appointees, respectively, voted to reverse. Judge Robert King, a Bill Clinton (D) appointee, dissented.

The panel’s decision was appealed to the Fourth Circuit sitting en banc. The Fourth Circuit reversed the panel’s decision, suspending the witness requirement again. The vote was 9-5.

On Oct. 5, the U.S. Supreme Court reinstated the witness requirement. The court issued its order without noted dissent.

What happens now? The Supreme Court exempted ballots cast before it issued its order and those received within two days of the order. Absentee/mail-in ballots cast after that time will be subject to the reinstated witness requirement.

Political context

North Carolina is a battleground in the presidential contest. In the 2016 election, Donald Trump (R) defeated Hillary Clinton (D) in North Carolina 49.8-46.2 percent. Mitt Romney (R) carried North Carolina in 2012, defeating incumbent Barack Obama (D) 50.4-48.4 percent. Barack Obama (D) won North Carolina in 2008, defeating John McCain (R) 49.7-49.4 percent.

Although South Carolina is not considered a presidential battleground state, it does feature one battleground congressional contest: the election for South Carolina’s 1st District. Incumbent Joe Cunningham (D) was first elected in 2018, defeating Katie Arrington 51-49 percent. The U.S. Senate race between incumbent Lindsey Graham (R) and Jaime Harrison (D) is also expected to be competitive.

Absentee/mail-in voting modifications since our last issue

Since our Sept. 23 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On Sept. 30, Judge Abdul Kallon of the U.S. District Court for the Northern District of Alabama issued a ruling that made a number of modifications to Alabama’s voting laws, including waiving the absentee/mail-in ballot witness/notary requirement for voters with underlying medical conditions.
  • Arizona: On Oct 5., Judge Steven Logan of the U.S. District Court for the District of Arizona ordered that the state’s voter registration deadline be extended to 5 p.m. on Oct. 23.
  • Georgia: On Oct. 2, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reinstated Georgia’s Nov. 3 receipt deadlines for absentee/mail-in ballots.
  • Indiana: On Sept. 29, Judge Sarah Barker of the U.S. District Court for the Southern District of Indiana issued an order extending the postmark and receipt deadline for absentee/mail-in ballots in Indiana to Nov. 3 and Nov. 13, respectively.
  • Iowa:
    • On Sept. 25, state legislators approved an emergency directive, requested by Secretary of State Paul Pate (R), authorizing counties to begin processing absentee/mail-in ballots on Oct. 31, the Saturday before Election Day.
    • On Oct. 5, Judge Robert Hanson of the Polk County District Court issued an order allowing Iowa counties to send voters absentee/mail-in ballot applications with pre-filled personal information.
  • Ohio:
    • On Oct. 2, a three-judge panel of the Ohio 10th District Court of Appeals ruled that Secretary of State Frank LaRose (R) could direct counties to offer multiple drop-box locations for returning absentee/mail-in ballots. The panel stopped short of requiring LaRose to do so, overturning a lower court decision to that effect.
    • On Oct. 5, Ohio Secretary of State Frank LaRose (R) announced counties would be allowed to offer multiple drop-off options for returning absentee/mail-in ballots. LaRose said these options would be restricted to one site per county.
  • Texas: On Oct. 1, Gov. Greg Abbott (R) issued a proclamation limiting the number of return locations for absentee/mail-in ballots to one per county.
  • Wisconsin: On Sept. 29, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision extending the online and mail voter registration deadline to Oct. 21 and the absentee/mail-in ballot return postmark and receipt deadlines to Nov. 3 and Nov. 9, respectively.

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

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) are automatically sending absentee/mail-in ballots to all eligible voters in the general election. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all eligible voters in the general election. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Indiana, Maine, Minnesota, Mississippi, and Pennsylvania) have extended absentee/mail-in ballot application or return deadlines in the general election. These states are shaded in dark gray in the map below.
  • Other process changes: Five states (Arizona, North Carolina, Ohio, Texas, and Virginia) have made other modifications to its absentee/mail-in ballot procedures for the general election. These states are shaded in gray in the map below.
M3Ydp-general-election-absentee-mail-in-voting-procedure-modifications.png

Redistricting developments since our last issue

Since our Sept. 23 edition, we’ve tracked the following redistricting-related developments.

  • On Sept. 30, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit declined to block a lower court’s order barring the U.S. Census Bureau from concluding field operations on Sept. 30.
    • The federal government had asked the Ninth Circuit for a stay after Judge Lucy Koh of the U.S. District Court for the Northern District of California ordered the Census Bureau to continue counting through Oct. 31.
  • Judge Johnnie B. Rawlinson, a Bill Clinton (D) appointee, wrote for the court. Judge Morgan Christen, a Barack Obama (D) appointee, joined Rawlinson in the ruling.
    • “Given the extraordinary importance of the census, it is imperative that the Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence. The Bureau must account for its competing constitutional and statutory obligation to produce a fair and accurate census report. The hasty and unexplained changes to the Bureau’s operations contained in the Replan, created in just 4 to 5 days, risks undermining the Bureau’s mission.”
  • Judge Patrick J. Bumatay, a Donald Trump (R) appointee, dissented.
  • The legal deadline for delivering census results to the president is Dec. 31. The Census Bureau had initially asked Congress to extend this deadline to April 2021. The House has approved this extension, but the Senate has not.

Litigation tracking

To date, we have tracked 256 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to Texas Alliance for Retired Americans v. Hughs.

  • Case name: Texas Alliance for Retired Americans v. Hughs
  • Case number: 20-40643
  • State of origin: Texas
  • Court: U.S. Court of Appeals for the Fifth Circuit, U.S. District Court for the Southern District of Texas
  • Summary: On Sept. 28, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit temporarily stayed a lower court’s order that had reinstated Texas’ straight-ticket ballot device. The court further stayed the order on Sept. 30, effectively ensuring that the straight-ticket ballot device would not appear on general election ballots this year.
    • On Sept. 25, Judge Marina Marmolejo of the U.S. District Court for the Southern District of Texas issued an order preventing state officials from enforcing legislation that had rescinded Texas’ straight-ticket ballot option. Marmolejo wrote, “The Court finds that HB 25 [the legislation eliminating the straight-ticket device], especially as exacerbated by the ongoing pandemic, places a greater than minimal burden on Texans’ right to vote and right to associate.”
    • In its per curiam (i.e., unsigned) order staying Marmolejo’s ruling, the appeals panel wrote, “[Given] that thousands of ballots without straight-ticket voting have already been mailed in accordance with a law that was passed three years ago and the immense difficulty described the Secretary [of State] of managing an election with different sets of ballots for in-person and mail-in voting, the public interest weighs heavily in favor of issuing the stay.”
    • The panel included Judges Edith Clement, Jennifer Elrod, and Catharina Haynes, all George W. Bush (R) appointees.

Legislation tracking

To date, we have tracked 328 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

COVID-19 election bills October 7.png


Pennsylvania modifies several mail-in voting procedures

In the last two weeks, a court order and a settlement have resulted in modifications to several mail-in voting procedures in Pennsylvania.

State directs counties not to reject ballots due to signature mismatch

On Sept. 14, the League of Women Voters and the Urban League of Greater Pittsburgh dropped a lawsuit against the state after election officials issued guidance directing counties not to reject a mail-in ballot due solely to a perceived mismatch between the signature on the return envelope and the signature on the voter’s registration record.

The guidance, released Sept. 11, lays out the following directions for county officials (emphasis added):

If the Voter’s Declaration on the return envelope is signed and the county board is satisfied that the declaration is sufficient, the mail-in or absentee ballot should be approved for canvassing unless challenged in accordance with the Pennsylvania Election Code.The Pennsylvania Election Code does not authorize the county board of elections to set aside returned absentee or mail-in ballots based solely on signature analysis by the county board of elections.[1]

State supreme court extends mail-in ballot receipt deadlines, authorizes drop-box returns

On Sept. 17, the Pennsylvania Supreme Court issued an order extending the mail-in ballot receipt deadline and authorizing the use of drop boxes for returning mail-in ballots in the general election. Mail-in ballots postmarked on or before Nov. 3, and ballots lacking any indication they were sent after this date, would be accepted if received by 5 p.m. on Nov. 6.

Writer for the court’s majority, Justice Max Baer said:

Under our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters. … We additionally conclude that voters’ rights are better protected by addressing the impending crisis at this point in the election cycle on a statewide basis rather than allowing the chaos to brew, creating voter confusion regarding whether extensions will be granted, for how long, and in what counties.[1]

The high court declined to bar officials from rejecting mail-in ballots submitted without secrecy envelopes (sometimes referred to as “naked ballots”). State authorities had previously advised counties that they should count naked ballots.

Justices Debra Todd, Kevin M. Dougherty, and David N. Wecht joined Baer’s opinion. Chief Justice Thomas Saylor and Justices Sallie Mundy and Christine Donohue dissented in part from the majority opinion. Baer, Donohue, Wecht, Dougherty, and Todd are Democrats. Saylor and Mundy are Republicans.

Political context

Pennsylvania is a key battleground in the presidential contest. In the 2016 election, Donald Trump (R) defeated Hillary Clinton (D) in Pennsylvania 48.2-47.5 percent. Barack Obama (D) carried Pennsylvania in both 2008 and 2012, defeating John McCain (R) in 2008 54.5-44.2 percent and Mitt Romney (R) in 2012 52-46.6 percent.

Ballotpedia has identified four of Pennsylvania’s 18 congressional districts as battlegrounds in the general election: the 1st, 7th, 8th, and 17th districts. A Republican represents the 1st District. Democrats represent the other three. Overall, Pennsylvania’s current U.S. House delegation is split evenly between Democrats and Republicans.

Absentee/mail-in voting modifications since our last issue

Since our Sept. 9 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Arizona: On Sept. 10, Judge Douglas Rayes of the U.S. District Court for the District of Arizona ordered election officials to give voters until 5:00 p.m. on the fifth business day after the election to sign their vote-by-mail ballot envelopes if they failed to sign at the time they submitted the ballots.
  • Louisiana: On Sept. 16, Chief Judge Shelly Deckert Dick of the U.S. District Court for the Middle District of Louisiana ordered election officials to make available to voters in the Nov. 3 and Dec. 5 elections the same COVID-19 absentee/mail-in ballot application used in the state’s summer elections. This application offers COVID-19-specific reasons for requesting an absentee/mail-in ballot.
  • Michigan: On Sept. 18, Judge Cynthia Stephens of the Michigan Court of Claims issued a ruling extending the absentee/mail-in ballot receipt deadline to Nov. 17 for ballots postmarked on or before Nov. 2. Stephens also authorized voters to allow anyone of their choosing to return their ballots between 5:01 p.m. on Oct. 30 and the close of polls on Nov. 3.
  • Mississippi: On Sept. 18, the Mississippi Supreme Court reversed a lower court ruling that had extended absentee/mail-in voting eligibility to individuals with “pre-existing conditions that cause COVID-19 to present a greater risk of severe illness or death.”
  • New York: On Sept. 18, the League of Women Voters reached a settlement agreement with New York election officials over ballot curing provisions for the general election.
  • Ohio: On Sept. 11, Judge Stephen L. McIntosh of Ohio’s Franklin County Court of Common Pleas barred Secretary of State Frank LaRose (R) from rejecting absentee/mail-in ballot applications submitted via fax or email.
  • Rhode Island: On Sept. 11, Secretary of State Nellie Gorbea (D) announced that her office would send absentee/mail-in ballot applications to all active registered voters in the general election.
  • South Carolina:
    • On Sept. 18, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee/mail-in ballots in the general election.
    • On Sept. 16, Gov. Henry McMaster (R) signed H5305 into law, extending absentee/mail-in voting eligibility to all qualified electors in the general election. The legislation also established Oct. 5 as the start date for in-person absentee voting (i.e., early voting).
  • Wisconsin: On Sept. 21, Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin issued an order extending the absentee/mail-in ballot receipt deadline in Wisconsin to Nov. 9 for ballots postmarked on or before Election Day. Conley immediately stayed his ruling, giving defendants seven days to file an emergency appeal.

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

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) are automatically sending absentee/mail-in ballots to all eligible voters in the general election. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all eligible voters in the general election. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Georgia, Maine, Minnesota, Mississippi, and Pennsylvania) have extended absentee/mail-in ballot application or return deadlines in the general election. These states are shaded in dark gray in the map below.
  • Other process changes: Five states (Arizona, North Carolina, Ohio, Texas, and Virginia) have made other modifications to its absentee/mail-in ballot procedures for the general election. These states are shaded in gray in the map below.
General election absentee voting changes September 23.png

Redistricting developments since our last issue

Since our Sept. 9 edition, we’ve tracked the following redistricting-related developments.

  • On Sept. 10, a three-judge panel of the U.S. District Court for the Southern District of New York struck down a presidential memorandum from President Donald Trump (R) directing census officials to “exclude from the apportionment base aliens who are not in a lawful immigration status.”
  • In its per curiam (unsigned) opinion, the panel ruled that the president’s memorandum violated federal census and apportionment laws as follows:
    • “First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary [of Commerce] is mandated to report a single set of numbers — ‘[t]he tabulation of total population by States’ under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme.”
    • “Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons in’ a ‘State’ as Congress used those words.”
  • The panel included Judges Richard Wesley, Peter Hall, and Jesse Furman. Wesley and Hall are George W. Bush (R) appointees. Furman is a Barack Obama (D) appointee.
  • On Sept. 16, the Department of Justice filed its notice of appeal to the U.S. Supreme Court, which has yet to take up the matter.

Litigation tracking

To date, we have tracked 236 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to Ohio Democratic Party v. LaRose.

  • Case name: Ohio Democratic Party v. LaRose
  • Case number: 20CV-5634
  • State of origin: Ohio
  • Court: Franklin County Court of Common Pleas, Ohio Court of Appeals for the Tenth Appellate District
  • Summary: On Sept. 15, Judge Richard Frye of the Franklin County Court of Common Pleas ruled that Secretary of State Frank LaRose’s (R) order directing counties to provide no more than one absentee/mail-in ballot drop box per county “lacked a legitimate basis in evidence” and was “unreasonable and unlawful.” Frye initially stopped short of suspending the order, noting that LaRose had previously said he supported “additional drop boxes if they are legal.”
    • In response to the ruling, Maggie Sheehan , a representative for LaRose, said, “Today’s ruling didn’t change anything, and the secretary’s directive remains in place.”
    • On Sept. 16, Frye enjoined the order. However, anticipating LaRose would appeal, Frye immediately stayed his injunction. On Sept. 21, LaRose filed his appeal with the Ohio Court of Appeals for the Tenth Appellate District.

Legislation tracking

To date, we have tracked 314 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

COVID-19 election bills September 23.png


Finalized Nov. 3 ballot measures: election policy, marijuana, and tax trends; campaign finance records; unique measures on wolves, mushrooms, state flag design, and more

One hundred and fifteen statewide ballot measures will appear on November 3, 2020, ballots in 32 states, barring further court-ordered changes.

Together with eight pre-November ballot measures, 123 statewide measures will go before voters in 2020. This is 29% less than the average of 173 statewide measures in even-numbered years from 2010 through 2018.

Forty-three of the 2020 statewide measures were put on the ballot through citizen-initiated signature petition drives. There were an average of 59 citizen-initiated measures in each even-numbered year from 2010 through 2018. In 2016 and 2018, there were spikes in citizen initiative activity, with 76 and 68 measures respectively. There were 40 citizen-initiated measures in 2014.

From 1980 through 2014, an average of 54 citizen-initiated measures appeared on the ballot during even-numbered years. From 2008 through 2014, this average decreased to 49.

State legislatures referred 79 measures to the ballot. On average from 2010 through 2018, state legislatures referred 109 measures to the ballot.

There was one automatic referral in Iowa.

Notable topics and trends

Forty-three (37%) of the Nov. 3 measures are on the topics of election policy, marijuana policy, or taxes.

Eighteen measures in 14 states concern election policy, including campaign finance, election dates, election systems, redistricting, suffrage, and term limits.

Voters in five states will decide ballot measures changing their election systems for congressional, state legislative, and statewide offices. Alaska and Massachusetts voters will decide ranked-choice voting initiatives. Alaska’s measure would also make Alaska the first state to adopt top-four primary elections. Courts removed top-four primary and ranked-choice voting general election initiatives similar to the measure in Alaska from the ballot in Arkansas and North Dakota.

Florida voters will decide an initiative that would replace the state’s closed primary elections with top-two open primaries for state offices. Colorado voters will be the first to weigh in on the National Popular Vote Interstate Compact (NPVIC).

Voters in Missouri, New Jersey, and Virginia will decide redistricting measures.

Voters in Alabama, Colorado, and Florida will decide measures designed to change existing constitutional language providing the right to vote to say “only a citizen of the United States,” rather than “every citizen of the United States,” who is 18 years old or older has the right to vote.

Voters in California will decide whether to allow 17-year-olds to vote in primary and special elections if they will be 18 by the next general election. Voters will also decide whether to allow convicted felons who are on parole the ability to vote.

Voters in Arizona, Montana, New Jersey, and South Dakota will vote on whether to legalize recreational marijuana. Voters in South Dakota and Mississippi will decide medical marijuana initiatives. South Dakota is the first state to vote on both recreational and medical marijuana measures at the same election.

Voters in 12 states will vote on 19 tax-related ballot measures. Ten of the measures address taxes on properties, three are related to income tax rates, two address tobacco taxes, one addresses business-related taxes, one addresses sales tax rates, one addresses fees and surcharges, and one is related to tax-increment financing (TIF).

Campaign finance

Committees registered to support or oppose the 124 statewide measures certified for 2020 ballots reported a combined $565.3 million in contributions and $224.9 million in expenditures.

The following five states have the most ballot measure campaign finance activity reported so far:

• California – $316.8 million in contributions

• Illinois – $80.4 million in contributions

• Florida – $28.4 million in contributions

• Colorado – $23.4 million in contributions

• Oregon – $14.1 million in contributions

The most expensive ballot measure of the year, California Proposition 22, is also the most expensive measure in California’s history. The support campaign has received record-breaking total contributions from multiple app-based driver companies, including Lyft, Uber, and Doordash.

Unique measures

Oregon could become the first state to create a program for the legal use of psilocybin mushrooms and to decriminalize all drugs.

Mississippi voters will decide on a new state flag design to replace its last flag featuring the Confederate battle flag, and Rhode Island voters will decide whether or not to remove the words “Providence Plantations” from the state’s official name. Voters in both states decided in favor of the status quo on these issues in 2001 and 2010, respectively.

Get more details and analysis in the September edition of the State Ballot Measure Monthly. The edition covers the final certifications of 2020; the measures that were removed fro the ballot since mid-August; and more analysis of trends, notable topics, and unique measures.

Subscribe to Ballotpedia’s newsletters to see upcoming analysis of the 2020 measures, including our comprehensive reports on signature petition costs, campaign finance, and ballot language readability.

Additional reading:
2020 ballot measures
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Zuckerberg, Chan donate $300 million for state, local election administration efforts

On Sept. 1, Facebook chief executive officer Mark Zuckerberg and his wife, Dr. Priscilla Chan, announced they would donate a combined total of $300 million to the Center for Tech and Civic Life and the Center for Election Innovation and Research in a bid “to promote safe and reliable voting in states and localities during the COVID-19 pandemic.”

About the Center for Tech and Civic Life and the Center for Election Innovation and Research

The Center for Tech and Civic Life (CTCL) describes itself as “a nonpartisan nonprofit that uses technology to improve the way local governments and communities interact.” The nonprofit Center for Election Innovation and Research (CEIR) says its mission is “to build voter trust and confidence, increase voter participation, and improve the efficiency of election administration.”

Both CTCL and CEIR are organized under Section 501(c)(3) of the Internal Revenue Code, which exempts charitable, religious, and educational organizations from federal income tax. These and other nonprofits are required to submit regular financial disclosure reports to the Internal Revenue Service. According to CTCL’s 2019 disclosure, the group had $1,414,981 in revenues and spent $1,119,630 in 2018. CEIR, meanwhile, had $890,647 revenues and spent $515,837 in 2017 (the most recent year for which information is available).

About the donation

Zuckerberg and Chan donated $250 million to CTCL, which will in turn “regrant funds to local election jurisdictions across the country to help ensure that they have the staffing, training, and equipment necessary so that this November every eligible voter can participate in a safe and timely way and that their vote is counted.” These grants will be used to support:

  • Poll worker recruitment, training, and hazard pay
  • Polling place rental
  • Temporary staffing
  • Drive-through voting
  • Ballot processing equipment
  • Personal protective equipment for poll workers
  • Nonpartisan voter education

The press release announcing the grant said that Zuckerberg and Chan’s $50 million donation to CEIR would be used in “helping election officials across the nation reach their voters with critical information about voter registration, mail voting, early voting, polling locations and hours, and the vote-counting process.”

In a Facebook post, Zuckerberg said, “Priscilla and I are personally supporting [these] two non-partisan organizations that are working to make sure every voter’s voice can be heard this November.” He added, “This is in addition to the work that Facebook is doing to run the largest voting registration campaign in American history — with a goal of helping more than 4 million people register to vote and providing authoritative information about topics like how to vote by mail in each state.”

What are the reactions?

Support

  • In a Newsweek op-ed, the Brennan Center’s Wendy Weiser and Jennifer Weiss-Wolf, said: “[The] pandemic poses a national emergency impacting the very foundation of our democracy, and the Senate adjourned until Labor Day without giving states and local officials the funding they need to run safe and fair elections this fall. … We have reached an extraordinary point where we have no choice but to look to civil society—the business community and other private groups and organizations—to help fill the breach.”
  • Frank LaRose (R), Ohio’s secretary of state, said, “In a time when so much is changing around us, Americans need to know now more than ever how to make their voice heard in this fall’s election. That requires getting them the information they need from trusted sources, and these dollars are going to go a long way to making that happen.”

Criticism

  • Robert Reich, U.S. Secretary of Labor under President Bill Clinton (D), said, “Mark Zuckerberg has raked in $40,800,000,000 since the pandemic began. That’s 136 times the $300 million donation he hopes will distract us from all the ways he’s allowed fascism and misinformation to erode our democracy.”
  • Scott Walter, president of the Capital Research Center, said that CTCL staffers are former Democratic Party operatives whose goal is to improve Democrats’ electoral prospects: “Can you imagine if the Charles Koch Foundation were to become involved with election officials? It would be front page news in The New York Times.”

Absentee/mail-in voting modifications since our last issue

Since our Aug. 26 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Georgia: On Aug. 31, Judge Eleanor L. Ross of the U.S. District Court for the Northern District of Georgia issued an order extending the return deadlines for absentee ballots in the general election. Ross ordered officials to accept as valid any absentee ballots postmarked Nov. 3 and received by 7:00 p.m., Nov. 6.
  • Maine: On Aug. 27, Gov. Janet Mills (D) signed an executive order extending the mail-in voter registration deadline from Oct. 13 to Oct. 19.
  • Mississippi: On Sept. 2, Judge Denise Owens of the Hinds County Chancery Court ordered Mississippi officials to expand absentee voting eligibility in the general election to individuals with “pre-existing conditions that cause COVID-19 to present a greater risk of severe illness or death.”
  • New Jersey: On Aug. 28, Gov. Phil Murphy (D) signed three bills into law making a number of modifications to the state’s absentee/mail-in voting procedures for the general election. Among these changes is an extension of the receipt deadline for ballots postmarked on or before Election Day to Nov. 9).
  • New York: On Sept. 2, Gov. Andrew Cuomo (D) announced the launch of an online absentee ballot request portal for the general election.
  • Oklahoma: On Aug. 28, Gov. Kevin Stitt (R) issued an executive order extending Oklahoma’s state of emergency by 30 days. This triggered the implementation of several modifications to Oklahoma’s absentee ballot procedures. Among these changes is the suspension of the notarization requirement, provided the voter submits a copy of his or her identification.
  • Utah: On Aug. 31, Gov. Gary Herbert (R) signed into law legislation making several changes to administration procedures for the general election. Among these changes is the requirement that counties provide some form of in-person Election Day and early voting).

To date, 38 states have modified their absentee/mail-in voting procedures. These modifications can be divided into the following five broad categories. The changes may apply to primary, special, or general elections:

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) either have sent or will send mail-in ballots automatically to all eligible voters in select elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Seventeen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) either have sent or will send mail-in ballot applications automatically to all eligible voters in select elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Ten states (Alabama, Arkansas, Indiana, Kentucky, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) either have expanded or will expand absentee voting eligibility in select elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Minnesota, Mississippi, Ohio, Pennsylvania, and Utah) either have extended or will extend absentee/mail-in ballot application or submission deadlines in select elections. These states are shaded in dark gray in the map below.
  • Other process changes: One state (North Carolina) has made other modifications to its absentee/mail-in ballot procedures in select elections. This state is shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (10).png

Redistricting developments since our last issue

Since our Aug. 26 edition, we’ve tracked the following redistricting-related developments.

  • On Sept. 5, Judge Lucy Koh of the U.S. District Court for the Northern District of California temporarily enjoined U.S. Secretary of Commerce Wilbur Ross and the U.S. Census Bureau from proceeding with plans to wind down census counting efforts. On Aug. 3, the Bureau announced its intention to suspend field data collection efforts by Sept. 30, saying it would use incentive awards and additional hires “to accelerate the completion of data collection and apportionment counts by our statutory deadline” of Dec. 30. On Sept. 3, the National Urban League, the League of Women Voters, and, the National Association for the Advancement of Colored Peoples, among others, motioned for an injunction against implementation of this plan. The plaintiffs allege that the plan’s “shortened timelines will unlawfully harm the accuracy of crucial census data.” Koh did not comment on the merits of plaintiffs’ larger claims. The injunction will remain in force until Sept. 17, when the court will conduct a hearing on the plaintiffs’ motion for a preliminary injunction.
    • A temporary restraining order is a short-term injunction against a challenged action (in this case, the Census Bureau’s Aug. 3 plan). It lasts only until a preliminary injunction hearing. If a preliminary injunction is granted, the challenged action will generally be enjoined for the duration of legal proceedings.

Litigation tracking

To date, we have tracked 227 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to DSCC v. Pate.

  • Case name: DSCC v. Pate
  • Case number: 05771 CVCV060641
  • State of origin: Iowa
  • Court: Polk County District Court
  • Summary: On Aug. 31, the Democratic Senatorial Campaign Committee (DSCC), the Democratic Congressional Campaign Committee (DCCC), and the Democratic Party of Iowa filed suit against Iowa Secretary of State Paul Pate (R) and the Iowa Legislative Council in the Polk County District Court. The plaintiffs allege the defendants’ July 17 emergency election directive, which prohibits county auditors from sending voters pre-addressed absentee ballot request forms, violates the state constitution.
    • Background: After state officials issued the directive, the auditors in Linn, Johnson, and Woodbury counties began mailing pre-address absentee ballot request forms to voters. State and national-level Republican groups filed suits against the three auditors, seeking injunctions “ordering each auditor to follow the directive.” On Aug. 27, a Linn County judge granted Republicans’ request for an injunction. A judge in Woodbury County did the same on Aug. 28. These actions precipitated the DSCC’s lawsuit.
  • Court documents:

Legislation tracking

To date, we have tracked 305 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

COVID-19 election bills September 9.png


New Jersey automatically sending mail-in ballots to all voters in the general election

On Aug. 14, Gov. Phil Murphy (D) issued an executive order establishing that the Nov. 3 general election will be conducted “primarily via vote-by-mail ballots.” Election officials will automatically deliver mail-in ballots to all active registered voters in advance of the election.

Murphy’s order makes the following temporary modifications to New Jersey’s election administration procedures:

Mail-in voting

  • All mail-in ballots must have prepaid postage.
  • Each county must provide for at least 10 ballot drop-boxes “in locations that are readily accessible to the registered voters within the county.”
  • In order to be counted, ballots must be postmarked on or before Nov. 3 and received by 8:00 p.m. on Nov. 10.
  • County election boards are authorized to pause counting ballots at 11:00 p.m. on Nov. 3, resuming at 9:00 a.m. on Nov. 4 and continuing every day thereafter until the count is completed.

In-person voting

  • Each county must open at least one polling place in each municipality.
  • Each county must open at least 50 percent of its usual number of polling places.
    • If a county is unable to meet this threshold, it must “utilize schools or other large facilities to serve as large voting centers, which will accommodate more voting districts in one polling place.”
    • All public primary and secondary schools must be closed to in-person instruction on Election Day, allowing schools to be used as voting centers.
  • All polling places must adhere to prescribed sanitation and social distancing guidelines (detailed in sections 6(a) through 6(j) of the executive order).
  • In-person voters must cast provisional ballots unless they are submitting a completed mail-in ballot.

Have other states made similar modifications?

To date, four states have announced they will automatically send mail-in ballots to all voters in the Nov. 3 general election: California, Nevada, New Jersey, and Vermont. In Montana, counties have been authorized, but not required, to conduct their elections by mail. Five states – Colorado, Hawaii, Oregon, Utah, and Washington – already conduct their elections by mail.

Another nine states have announced they will automatically send mail-in ballot applications to all voters in the Nov. 3 general election: Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, and Wisconsin.

What comes next?

On Aug. 18, Donald J. Trump for President, Inc., the Republican National Committee, and the New Jersey Republican State Committee filed suit against Murphy and Secretary of State Tahesha Way (D). They allege Murphy’s executive order represents “a direct usurpation of the state legislature’s authority,” as granted by the United States Constitution, “to set the time, place, and manner of congressional elections and to determine how the state chooses electors for the presidency.” They also argue that “fraudulent and invalid votes dilute the votes of honest citizens and deprive them of their right to vote in violation of the Fourteenth Amendment.” They seek an injunction to bar enforcement of the executive order.

The suit, Donald J. Trump for President, Inc. v. Murphy (3:20-cv-10753), is pending in the United States District Court for the District of New Jersey before Judge Michael Shipp, who was appointed to the bench by Barack Obama (D).

Meanwhile, Democratic lawmakers, with majorities in both chambers of the state legislature, are considering legislation that would essentially codify Murphy’s order. If enacted, the legislation (A4475 and S2580) could render the Republicans’ lawsuit moot.

Absentee/mail-in voting modifications since our last issue

Since our Aug. 12 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Kentucky: On Aug. 14, Gov. Andy Beshear (D) and Secretary of State Michael Adams (R) announced multiple modifications to administration procedures in the Nov. 3 general election, including the extension of absentee/mail-in voting eligibility to all voters “concerned with contracting or spreading COVID-19.”
  • Nebraska: On Aug. 19, Secretary of State Bob Evnen (R) announced that his office would automatically send early/mail-in ballot applications to all registered voters in the Nov. 3 general election whose home counties had not already done so.
  • New Jersey: On Aug. 14, Gov. Phil Murphy (D) announced that the state would automatically send mail-in ballots to all voters in the Nov. 3 general election.
  • New York: On Aug. 20, Gov. Andrew Cuomo (D) signed into law legislation extending absentee voting eligibility in the Nov. 3 general election to any voter who is “unable to appear personally at the polling place of the election district in which they are a qualified voter because there is a risk of contracting or spreading a disease causing illness to the voter or to other members of the public.”
  • Ohio: On Aug. 12, Secretary of State Frank LaRose (R) directed each county election board to provide one drop-box for absentee/mail-in ballots in the Nov. 3 general election.
  • Rhode Island: On Aug. 13, the Supreme Court of the United States denied a request by the Republican National Committee and the Republican Party of Rhode Island to stay a consent decree suspending witness/notary requirements for mail-in ballots cast in Rhode Island’s 2020 elections.

To date, 38 states have modified their absentee/mail-in voting procedures. These modifications, which can be divided into the following five broad categories, may apply to primary, special, or general elections:

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) either have sent or will send mail-in ballots automatically to all eligible voters in select elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Seventeen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, New Mexico, New York, North Dakota, * Rhode Island, South Dakota, West Virginia, and Wisconsin) either have sent or will send mail-in ballot applications automatically to all eligible voters in select elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Ten states (Alabama, Arkansas, Indiana, Kentucky, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) either have expanded or will expand absentee voting eligibility in select elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Minnesota, Mississippi, Ohio, Pennsylvania, and Utah) either have extended or will extend absentee/mail-in ballot application or submission deadlines in select elections. These states are shaded in dark gray in the map below.
  • Other process changes: One state (North Carolina) has made other modifications to its absentee/mail-in ballot procedures in select elections. This state is shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (10).png

Redistricting developments since our last issue

Since our Aug. 12 edition, we’ve tracked the following redistricting-related developments.

  • On Aug. 10, Colorado opened the application period for its two redistricting commissions. The 2020 redistricting cycle will be the first driven by the efforts of the two commissions – one tasked with congressional redistricting and the other with state legislative redistricting. In 2018, voters approved two constitutional amendments – Amendment Y and Amendment Z – creating the commissions. Each commission has 12 members: four from the state’s largest political party, four from the state’s second largest party, and four who are not affiliated with any party. The application period closes Nov. 10.

Ranked-choice voting update: Maine judge puts ranked-choice voting challenge back on Nov. ballot

On Aug. 24, Superior Court Judge Thomas McKeon ruled that Maine Republicans had collected enough valid signatures to place a veto referendum on the state’s ranked-choice voting law back on the Nov. 3 ballot. McKeon found that Secretary of State Matt Dunlap (D) had improperly invalidated 988 signatures. Those signatures qualified the measure for placement on the ballot.

The referendum, if approved by voters, would repeal LD 1803, legislation that had established ranked-choice voting for presidential primary and general elections. McKeon’s order precludes the state from using ranked-choice voting in this year’s presidential election, regardless of the referendum’s final outcome.

On Aug. 24, Dunlap said he had not decided whether to appeal McKeon’s ruling: “We have no idea where we’re going to go from here.” The state must print ballots by Aug. 28.

Litigation tracking

To date, we have tracked 218 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to Washington v. Trump.

  • Case name: Washington v. Trump
  • Case number: 1:20-cv-03127
  • State of origin: Washington
  • Court: U.S. District Court for the Eastern District of Washington
  • Summary: On Aug. 18, 13 state attorneys general filed suit against President Donald Trump (R), Postmaster General Louis DeJoy, and the United States Postal Service. They allege that DeJoy has “recently instituted sweeping changes that undermine the Postal Service’s ability to provide consistent and timely service … following repeated statements from President Trump evincing a partisan political motive for making it harder to vote by mail.” They claim DeJoy neglected “to consult with the Postal Regulatory Commission and to give the public an opportunity to comment.” They further allege that “these changes will have a wide range of negative consequences that violate a diverse array of federal laws, harming individuals with disabilities in violation of the Rehabilitation Act to disenfranchising voters in violation of the Constitution.” The states bringing the suit are Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. The attorneys general in these states are all Democrats. The case has been assigned to Chief Judge Stanley Bastian, who was appointed to the bench by Barack Obama (D).
  • Court documents:

Legislation tracking

To date, we have tracked 296 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills August 25.png