Experts Urge States To Expand Voting By Mail Before Pandemic Derails Democracy

Advocacy groups are pushing to enable voters to cast a mailed-in absentee ballot without an excuse.

The coronavirus pandemic is causing significant disruptions to American elections.

Ohio canceled in-person voting for its primary on Tuesday because Gov. Mike DeWine (R) said they could not ensure the safety of voters. The primary was later delayed by the state Supreme Court. Chaos reigned at the polls in Illinois on Tuesday as election workers did not show and election materials were not available at some locations. Georgia, Kentucky, Louisiana and Maryland postponed their upcoming primaries by months. Wyoming moved to an all-mail primary election and Maryland Gov. Larry Hogan (R) called for an all-mail vote in the state’s April 28 special congressional election.

The need for social distancing to prevent the rapid spread of the virus requires people to stay away from crowds. That includes polling locations. More states should follow Wyoming and Maryland’s lead.

But it’s vital to ensure people can still exercise their right to vote. Advocacy groups like the American Civil Liberties Union, the Leadership Conference on Civil Rights, the Brennan Center for Justice and the National Vote At Home Institute, as well as politicians from both political parties, are calling on states to take quick action to ensure that voters will be able to cast ballots this year. They are urging states to quickly adopt new policies to increase options for voting from home, including allowing no-excuse mail-in absentee voting and mailing ballots to every voter to enable this. At the same time, they say states must maintain safe in-person polling locations for communities, like Native Americans and the non-English proficient, who need them.

“If that’s going to happen, it’s going to have to be planned now,” said Rick Hasen, an election law professor at the University of California-Irvine and author of the book “Election Meltdown.”

Lisette Venegas votes at Chicago's Su Nueva Lavanderia polling place on March 17, 2020. Election officials have been promoting voting early and casting ballots by mail in an attempt to limit crowds and curb the spread of the coronavirus.
Lisette Venegas votes at Chicago's Su Nueva Lavanderia polling place on March 17, 2020. Election officials have been promoting voting early and casting ballots by mail in an attempt to limit crowds and curb the spread of the coronavirus.

While primary elections can be delayed by state governments, the date of federal elections for president and Congress cannot. If people are still being asked to maintain social distance in November, election turnout could plummet, threatening the legitimacy of the outcome. France went ahead with its local elections on Sunday and saw historically low turnout.

“That should be a massive warning with red flashing lights about what’s going to happen in our democracy right now,” said Dale Ho, director of the Voting Rights Project at the ACLU.

States must start planning now if they intend to make any changes in policy to ensure the safety and continued integrity of this year’s elections. They will need to enact new rules and procedures to ensure the safety and integrity of the ballot and provide funding to deal with the crush of mailed ballots.

“If you are making base-level infrastructure changes, it takes time and it takes resources,” said Audrey Kline, policy director for the National Vote At Home Institute.

Five states ― Colorado, Hawaii, Oregon, Utah and Washington ― already conduct all-mail elections. California is set to join them soon. Another five states ― Arizona, Montana, Nevada, New Jersey and Virginia ― and the District of Columbia offer a permanent vote-by-mail option. Other states are testing all-mail elections in a limited number of counties.

It may not be possible or wise for every state to immediately move to a permanent vote-by-mail option or an all-mail election right now, but there are clear steps every state can take to improve vote-by-mail options during this pandemic. First among them is for the states that do not currently allow everyone to vote absentee by mail without an excuse to start allowing it.

Sixteen states either do not allow no-excuse absentee voting or are in the process of transitioning to allow it. The states with requirements for filing absentee are Alabama, Arkansas, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, New Hampshire, Rhode Island, South Carolina, Tennessee, Texas and West Virginia. Connecticut and Delaware are currently transitioning to drop their requirements for mail-in absentee ballots.

A poll worker provides a voter with a ballot during the Florida presidential primary on March 17, 2020, in Miami.
A poll worker provides a voter with a ballot during the Florida presidential primary on March 17, 2020, in Miami.
Cliff Hawkins via Getty Images

There are at least three ways states could change their election laws to provide for no-excuse absentee balloting now. State legislatures can pass new laws enabling it. The governor of each state could issue an emergency proclamation declaring the current pandemic a proper excuse to obtain a mail-in absentee ballot. Or Congress could pass a law requiring states to provide no-excuse absentee balloting for federal elections. States could then simply change their administrative procedures to implement it.

Discussions are underway in several states about changing these restrictions to increase access to no-excuse absentee voting, with calls coming from both Democrats and Republicans.

In Connecticut, Secretary of State Denise Merrill (D) called on Gov. Ned Lamont (D) to issue an emergency declaration declaring the coronavirus pandemic a sufficient excuse for all voters to obtain a mail-in absentee ballot.

West Virginia Secretary of State Mac Warner (R) said that all options are on the table, including the legislature passing a bill or Gov. Jim Justice (R) issuing an emergency declaration to allow no-excuse absentee voting.

In Indiana, the chairs of the state Republican and Democratic parties issued a joint letter calling on the state to allow no-excuse absentee voting.

Alabama Secretary of State John Merrill (R) announced on March 13 that all voters “who are concerned about contracting or spreading an illness or have an infirmity may vote by absentee” in the state’s March 31 runoff elections. Merrill is now, however, seeking a postponement of those elections.

Permitting no-excuse absentee voting would be just the beginning, however. The states that currently do not allow it lack the resources and funding necessary to adjust to a radical increase in processing and counting mail-in ballots. The same is true of states that do currently allow no-excuse absentee voting but will likely see a significant increase this year.

Michigan is a case in point. A ballot initiative passed by voters in 2018 provided a host of voting rights reforms including allowing no-excuse absentee voting. Some municipalities saw up to an 800% increase in mailed-in ballots for the state’s March 10 primary election. The state legislature had not provided proper funding to allow county clerks to speedily count the ballots, thus extending the time it took to reach a final vote tally.

“Funding is going to be one of the most important pieces,” Kline said. “It costs money all the way down to our local clerks.”

States will need increased funding to adopt anti-fraud procedures on verifying signatures on mailed ballots, provide for pre-paid return envelopes and extend the dates that absentee ballots can be requested, returned and counted. This could mean that states adopt the same policy as California, where ballots postmarked as late as Election Day are valid.

“You shouldn’t have less time to vote [by mail] than if you decide to vote in person,” Ho said.

The additional funds may need to come from the federal government, as many states are strapped for cash. Sens. Ron Wyden (D-Ore.) and Amy Klobuchar (D-Minn.) plan on introducing federal legislation this week to provide funding and mandate that states increase early in-person voting and provide no-excuse absentee voting for federal elections.

In Congress, though, there will be another question mark: Republicans, who have increasingly rallied around policies to limit access to voting, would have to approve measures to increase the ability of people to vote.

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