TagBallot Bulletin

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
Ballotpedia.org



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


Nevada to mail ballots to all voters ahead of Nov. 3 general election

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

How did the bill become law?

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

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

What changes did the bill make to existing law?

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

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

What were the reactions?

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

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

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

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

What comes next?

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

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

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

Absentee/mail-in voting modifications since our last issue

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

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

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

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

Redistricting developments since our last issue

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

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

Litigation tracking

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

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

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

Legislation tracking

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

Legislation related to elections and COVID-19, 2020

COVID-19 election bills August 12.png


States begin modifying general election voting procedures in response to COVID-19 outbreak

With the primary election season coming to a close, election administrators across the country are turning their attention to Nov. 3, modifying voting procedures in response to the continued effects of the COVID-19 outbreak.

To date, at least 21 states have modified voting procedures for the Nov. 3 general election.

  • Six states (Alabama, Arkansas, Massachusetts, Missouri, New Hampshire, and Tennessee) have expanded absentee/mail-in voting eligibility. These states are shaded in light purple in the map below.
  • Eight states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, New Mexico, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all voters in the Nov. 3 general election. These states are shaded in medium purple in the map below.
  • Two states (California and Vermont) are automatically sending absentee/mail-in ballots to all voters in the Nov. 3 general election. These states are shaded in blue in the map below.
  • Five states (Mississippi, North Carolina, Oklahoma, South Carolina, and Texas) have made other procedural changes to the conduct of the Nov. 3 general election. These states are shaded in dark gray in the map below.
GGRBr-general-election-procedure-changes-in-response-to-covid-19.png

Election administration changes since our last issue

Since our July 15 edition, we’ve tracked the following election administration modifications:

  • Alabama: On July 17, Secretary of State John Merrill (R) issued an emergency rule allowing any qualified voter to cast an absentee ballot in the Nov. 3 general election.*
  • Iowa: On July 17, Secretary of State Paul Pate (R) announced that absentee ballot application forms would be automatically sent to all active registered voters in the Nov. 3 general election.
  • Maryland: On July 20, Judge Richard Bennett of the United States District Court for the District of Maryland halved the signature requirement for unaffiliated candidates in Maryland.
  • New Hampshire: On July 17, Gov. Chris Sununu (R) signed HB1266 into law, which formally established concern over COVID-19 as a valid reason for voting absentee in both the Sept. 8 primary and Nov. 3 general elections. The legislation also temporarily allowed voters to submit one absentee ballot application for both elections.
  • North Carolina: On July 17, Karen Brinson Bell, the executive director of the North Carolina State Board of Elections, issued an emergency order mandating a number of modifications to in-person voting in the Nov. 3 general election.
  • Texas:
    • On July 18, the United States Court of Appeals for the Fifth Circuit stayed a district court ruling that had allowed the Republican Party of Texas to proceed with its in-person state convention. This ruling effectively reinstated the cancellation order Houston officials issued on July 8.
    • On July 27, Gov. Greg Abbott (R) issued a proclamation extending the early voting period for the Nov. 3 general election by six days. Originally scheduled to begin on Oct. 19, early voting will now begin on Oct. 13.
  • Vermont: On July 20, Secretary of State Jim Condos (D) issued a directive that a mail-in ballot be sent automatically to every active registered voter in the Nov. 3 general election.

Redistricting developments since our last issue

The effects of the COVID-19 outbreak on the conduct of the United States Census are poised to postpone or otherwise alter redistricting efforts, which generally begin in earnest at the beginning of the calendar year following completion of the census. Beginning today, we’ll devote some space in each issue to this subject.

  • California: On July 17, in a unanimous decision, the California Supreme Court extended the constitutional and statutory deadlines for congressional, state legislative, and Board of Equalization redistricting by at least four months because of possible delays in receiving data from the U.S. Census Bureau. 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 August 15, 2021, respectively. The court provided for further extensions if the federal government does not provide the necessary data by July 31, 2021.

Litigation tracking

To date, we have tracked 145 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Florida, Grimes v. Florida Department of State.

  • Case name: Grimes v. Florida Department of State
  • Case number: 2020 CA 000908
  • State of origin: Florida
  • Court: Second Judicial Circuit Court
  • Summary: In May, three Florida residents filed suit against state and local election officials, requesting that the Second Judicial Circuit Court order these officials to automatically send mail-in ballots, complete with prepaid return postage, to all voters in the Nov. 3 general election. The defendants moved to dismiss. On July 20, Judge Charles W. Dodson granted the motion to dismiss, writing the following in his order: “The court finds that [plaintiffs’ complaint] fails to state a justiciable controversy at this time. Rather, the allegations appear to seek an advisory opinion. Plaintiffs have not alleged a burden or harm personal to them. No difficulty is alleged in requesting a vote-by-mail ballot or otherwise voting by mail. Further, there is no specific constitutional claim or violation alleged.”
  • Court documents:

Legislation tracking

To date, we have tracked 264 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 July 29.png


A closer look at Louisiana’s unique electoral system

In Louisiana, the candidate qualifying period opens on July 22 and closes on July 24. With the filing period upon us, the time is ripe for examining Louisiana’s one-of-a-kind system in greater depth, and for introducing Ballotpedia’s preferred term for the system: Louisiana majority-vote system.

How do elections work in Louisiana?

Louisiana’s electoral system for local, state, and federal offices differs markedly from those used in the other 49 states. In Louisiana, all candidates running for a local, state, or federal office appear on the same ballot in either October (in odd-numbered years) or November (in even-numbered years), regardless of their partisan affiliations. If a candidate wins a simple majority of all votes cast for the office being sought (i.e., 50 percent, plus one vote), he or she wins the election outright. If no candidate meets that threshold, the top two finishers, regardless of their partisan affiliations, advance to a second election in December. In that election, the candidate who receives the greatest number of votes wins.

What terms are used to describe this system?

The general public commonly refers to this electoral system as a “jungle primary.” But that term presents two problems. First, it has negative connotations. In this context, the adjectival use of “jungle” suggests disorderliness and chaos. Its use infers a negative judgment against the electoral system. Second, the term lacks descriptive force. It does little to explain the substance or function of the system it is used to describe.

Louisiana’s secretary of state describes the state’s electoral system as a “majority-vote primary paired with a plurality-vote general election:”

  • “All statewide and local candidates in Louisiana are elected by majority vote. A majority vote is one more than 50% of the total votes cast for that office. When one candidate is to be elected, a candidate who receives a majority of the votes cast for an office in a primary election is elected. If no candidate receives a majority, the top two candidates who receive the most votes advance to the general election.”
  • “The candidate who receives the most votes cast for an office in a general election is elected. If two or more offices are to be filled, those candidates receiving the highest total of votes are elected to the number of offices to be filled. If there is a tie vote among more candidates than offices to be filled, all candidates who received the highest number of tie votes advance to another election to be held on the 3rd Saturday after the promulgation of the election results.”

The term “majority-vote primary” is an improvement over “jungle primary.” It is neutral, and it more accurately describes how the system works. Still, this term is misleading because it uses the term “primary,” which is most precisely construed as an election used either to narrow the field of candidates for a given office or to determine the nominees for political parties in advance of a general election. Under this definition, a candidate cannot win election to an office outright in a primary. A candidate can only win an office in a general election. However, this is not the case in Louisiana. A candidate can win election outright in the first round of voting.

“Plurality-vote general election” does not clearly communicate the possibility of outright election in the first phase of the process (i.e., the November election). As such, it is misleading. Further, in most cases, the vote threshold for this election is effectively a simple majority (i.e, if only two candidates can advance to the general election, one of those candidates is practically guaranteed a majority share of the total vote).

How does Ballotpedia describe Louisiana’s electoral system?

In response to the shortcomings of the aforementioned existing terms, we call Louisiana’s electoral system the “Louisiana majority-vote system.”

This term hews closely to the terms presently used by the Louisiana secretary of state. However, it doesn’t use the misleading “primary” and “general” descriptors. Instead, it encompasses both phases of the process without obscuring the possibility of election in the first phase.

We can expand this term to accurately distinguish between the two phases of an election, as follows:

  • Louisiana majority-vote system, first round: This describes what has traditionally been referred to as the “jungle primary.”
  • Louisiana majority-vote system, second round: This describes what has traditionally been referred to as the “general,” “general runoff,” or “runoff” election.

For a more complete discussion of Louisiana’s electoral system and related, but distinct, concepts (e.g., top-two primaries and blanket primaries), see this article.

Absentee/mail-in voting modifications

Since our July 1 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On July 2, the U.S. Supreme Court temporarily stayed a district court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections. A full appeal of the district court’s decision is pending before the United States Court of Appeals for the Eleventh Circuit.
  • Arkansas: On July 2, Gov. Asa Hutchinson (R) and Secretary of State John Thurston (R) announced that voters in the Nov. 3 general election would be allowed to cite concerns over COVID-19 as a valid excuse for voting absentee.
  • Delaware: On July 1, Gov. John Carney (D) signed HB346 into law, providing for the state election commission to automatically deliver a vote-by-mail application to every qualified voter in the 2020 primary, general, and special elections.
  • Maryland: On July 8, Gov. Larry Hogan (R) ordered the state board of elections to automatically send absentee/mail-in ballot request forms to all qualified voters in the Nov. 3 general election.
  • Massachusetts: On July 6, Gov. Charlie Baker (R) signed into law legislation extending vote-by-mail eligibility in the fall primary and general elections to all qualified voters.
  • South Carolina: On July 8, the South Carolina Election Commission announced that return postage for all mailed absentee ballots in the Nov. 3 general election would be prepaid.

To date, 35 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Four states (California, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Sixteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Ten states (Arkansas, Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Four states (Minnesota, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
  • Other process changes: One state ( North Carolina) has made other modifications to its absentee/mail-in ballot procedures in certain elections. This state is shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (9).png

Litigation tracking

To date, we have tracked 131 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Alabama, Merrill v. People First of Alabama.

  • Case name: Merrill v. People First of Alabama
  • Case number: 19A1063 (district court case number: 2:20-cv-00619; appellate court case number: 20-12184)
  • State of origin: Alabama
  • Court: U.S. Supreme Court
  • Summary: On July 2, the U.S. Supreme Court temporarily stayed a district court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections. A full appeal of the district court’s decision is pending before the United States Court of Appeals for the Eleventh Circuit. The Supreme Court’s order was unsigned. However, it was noted that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted to deny the state’s request to lift the district court’s injunction.
  • Court documents:

Legislation tracking

To date, we have tracked 255 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 July 15.png


Recent SCOTUS actions involving COVID-19 and elections

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

Thompson v. DeWine

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

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

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

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

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

Texas Democratic Party v. Abbott

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

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

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

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

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

Absentee/mail-in voting modifications

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

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

To date, 35 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Fifteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Nine states (Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Four states (Minnesota, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
  • Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (8).png

Litigation tracking

To date, we have tracked 118 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Alabama, People First of Alabama v. Merrill.

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

Legislation tracking

To date, we have tracked 237 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020