While the vast majority of voters were permitted to cast absentee ballots during the primaries, only about 10 states so far have announced that they will make voting by mail easier for November, raising fears that Election Day could be marked by long lines and unsafe conditions at polling locations if the health crisis persists.
With Republican governors under pressure from President Trump not to expand voting by mail and many legislatures adjourned for the year or deadlocked along party lines, changes in the coming months are likely to come through court decisions.
Legal battles in about two dozen states are now poised to shape the details of how roughly 130 million registered voters are able to cast ballots in upcoming contests, with more than 60 lawsuits related to absentee voting and other rules wending their way through the courts, according to a tally by The Washington Post.
The state of limbo reflects the unprecedented challenges of running elections in the middle of a global health crisis, as well as the increasingly contentious partisan debate over whether mail voting is secure.
Across the country, conflicting court decisions could exacerbate the differences in voters’ experiences at the ballot box in November. And as the fights play out, the uncertainty is further complicating election officials’ ability to prepare for the vote.
“I think it’s clear we have a potential disaster on our hands on Election Day if we can’t process as many votes as possible beforehand,” said Dale Ho, who supervises voting litigation for the American Civil Liberties Union and supports the expansion of absentee voting this year.
“The alarm bells are going off. It’s not just some sort of hypothetical as a problem — we’ve seen it as a problem multiple times. It will repeat in November. The question is how much and in how many places and how badly,” he said.
While every presidential election year brings an increase in voting rights litigation, the pandemic has multiplied the number of lawsuits filed in the past 3½ months.
Democrats and voting rights advocates are pursuing cases to make it easier to vote by mail, filing more than 50 lawsuits in 25 states. The GOP is pushing to limit the expansion of voting by mail, backed by a $20 million Republican National Committee effort and help from conservative groups.
Trump has made it clear that he is determined to curtail access to mail ballots, claiming without evidence that their use leads to widespread fraud.
“My biggest risk is that we don’t win lawsuits,” the president said in June in an interview with Politico. “We have many lawsuits going all over. And if we don’t win those lawsuits . . . I think it puts the election at risk.”
There is no evidence that mail voting leads to the kind of massive fraud Trump has described. A recent analysis by The Post found that cases of potential fraud have been exceedingly rare in states that conduct voting exclusively by mail.
But the GOP has started to echo the president’s claims in battleground states such as Pennsylvania, where the Trump campaign recently sued to stop voters from using drop boxes to return completed absentee ballots and block ballots from being counted if they do not arrive inside the provided secrecy envelope.
The complaint — which Democrats decried as an effort to suppress the vote — argues that mail voting “provides fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos,” channeling Trump’s rhetoric.
“How many times have you had a birthday card or a Christmas card that didn’t make it to somebody? Add on top of that trying to layer this [increased mail voting] in four months before an election and you have a recipe for disaster,” Trump campaign senior counsel Justin Clark recently told CBS’s “60 Minutes.”
Meanwhile, Democrats and their allies are pushing to make mail voting easier by targeting elements of the process they argue create unfair hurdles, such as rules limiting who can cast absentee ballots, witness requirements and a lack of paid postage for returning ballots through the mail.
“When the political branches fail to protect voting rights, it is left to the courts to do that,” said leading Democratic elections attorney Marc Elias, who estimated that he is litigating more than three dozen cases in 17 states. “If the political branches were functioning the way they’re supposed to, you would have Republicans and Democrats agreeing to increase access to absentee voting. You’d be putting in place safeguards to make sure every eligible voter who casts a ballot has that ballot counted. . . . Unfortunately, the Republican Party is taking its cues from Donald Trump.”
Wins on both sides
Both sides have experienced wins and losses this year.
Elias said his most meaningful success so far came in April, when the Supreme Court ruled that absentee ballots in Wisconsin’s primary could be counted as long as they were postmarked by the date of the election and received within a week. The decision — which Democrats hope will pave the way for other rulings — was significant because absentee ballots are not typically counted in Wisconsin unless they are received on or by Election Day.
“The fact is that as a result of the litigation we brought, tens of thousands of voters had their ballots counted that would not have been counted. We have cited that precedent in court after court after court around the country,” Elias said.
Democrats have also seen other victories ahead of November.
In Tennessee last month, a Nashville judge ruled that any eligible voter who is concerned about contracting the coronavirus at a polling place may cast an absentee ballot this fall, even though state law would typically require that voter to qualify using an excuse. The state Supreme Court declined last week to stay the decision after a request from Republican Secretary of State Tre Hargett.
Republicans, meanwhile, have been buoyed by recent federal court decisions involving voting in Wisconsin and Texas.
The U.S. Supreme Court has rejected a request by the Texas Democratic Party to hear its case to extend access to mail ballots to anyone concerned about exposure to the coronavirus before the July 14 runoffs. Currently, only voters who are 65 or older, disabled, incarcerated or out of the country on Election Day and during early voting can vote by absentee in the state.
Republican Attorney General Ken Paxton cheered the high court’s ruling, saying it would help guard against “widespread fraud.”
Texas Democratic Party Chair Gilberto Hinojosa called that position “disgusting and morally wrong.”
“They know that if Texans get out to vote, their time in power is done,” Hinojosa said of Republicans in a statement Wednesday, adding, “We can and will overcome.”
The party, which still hopes the high court will consider its case, has also appealed to the U.S. Court of Appeals for the 5th Circuit.
Meanwhile, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled Monday that, after more than three years, Wisconsin must reinstate several Republican-backed voting restrictions, including limits on early voting.
Leading Republicans touted it as a victory for “fair elections.”
“Why should some people get to vote sooner than other people just because of where they lived,” tweeted Scott Walker, the Republican former governor of Wisconsin. “Now everyone has two weeks to vote early if they want. That’s more generous than most states.”
The original GOP policies were struck down in 2016 for discriminating against minority voters, a conclusion the appellate panel rejected this week.
Democrats denounced the panel’s decision, saying the shift could lengthen the lines in Milwaukee that already made the state’s vote in April one of the biggest cautionary tales of the primaries.
“The truth is that because one party has so relentlessly weaponized racism, voting is now highly predicted by race — and so it’s possible to suppress the vote of [African Americans] under the guise of suppressing Democrats. This opens the door to making that legal,” Wisconsin Democratic Party Chair Ben Wikler tweeted Monday.
Waiting on decisions
As the legal fights play out, state officeholders are coming under pressure to clarify the rules for the fall — especially in the 16 states that currently require an excuse to vote absentee.
Among states that have announced plans to relax their voting policies or practices for November, the most dramatic shift will take place in California, where Gov. Gavin Newsom (D) has ordered election officials to proactively send absentee ballots to active registered voters for the general election. The move has drawn fierce opposition from the right, including a lawsuit from the RNC, but has since been authorized by a new state law.
The District of Columbia will also send absentee ballots to voters.
At least four states — including Illinois, Michigan and Wisconsin — will proactively mail absentee ballot applications to voters. And at least three states where an excuse is typically required to vote absentee have chosen to abandon that requirement for the rest of the year, including Massachusetts and Missouri.
But a large number of states have yet to announce their plans.
“The dithering that we’ve seen [by state elected officials] is alarming,” Ho said. “Early in the pandemic, the situation was changing so quickly and the information was so new that I had some sympathy for elected officials and election administrators who were trying to puzzle through this problem, which really is unprecedented. Now, we know how bad the pandemic is and that it can get worse.”
In several states, Republican lawmakers have taken steps to limit the power of secretaries of state from their own party who made it easier to vote by mail during the midyear contests.
In Georgia, where GOP Secretary of State Brad Raffensperger mailed absentee ballot request forms to voters for the June 9 primaries, Republican House Speaker David Ralston has warned that expanded absentee voting could lead to fraud.
Last week, a state House committee approved a measure that would bar Raffensperger from mailing absentee request forms for the fall. The bill failed to pass before the legislature adjourned.
Raffensperger, who has already said his office lacks funds to send ballot request applications for the general election, said that proactively mailing voters the forms made sense earlier in the year.
“By a wide margin, voters on both sides of the political spectrum agree that sending absentee applications to all active voters was the safest and best thing our office could do to protect our voters at the peak of COVID-19,” he said in a statement. “Some seem to be saying that our office should have ignored the wave of absentee voting that was clearly coming.”
A few days later in Iowa, Gov. Kim Reynolds (R) signed a similar bill into law that will require the secretary of state to seek legislative approval to send absentee ballot request forms to voters before November.
The measure served to rebuke Secretary of State Paul Pate, a Republican who mailed the forms to voters for the primary last month. The contest was considered a success and shattered turnout records for a June primary in the state.
A spokesman for Pate did not respond to a request for comment on the new law.
Sylvia Albert, director of voting and elections with Common Cause, said decisions about how to handle voting during a pandemic are not easy but “have to be made.”
“There is no waiting it out,” Albert said, noting that as more time passes, the shorter the window for educating voters about any changes becomes. “As a state legislator, as a secretary of state, as a governor, you are responsible for ensuring that voters can access the ballot. By not moving ahead, they’re really abdicating their responsibility to the voters.”
Kate Rabinowitz contributed to this report.