Bloomberg Law
May 8, 2020, 10:53 AM

INSIGHT: Voting By Mail in November—It’s Not a Matter of if, But How

Jason  Abel
Jason Abel
Steptoe & Johnson LLP
Evan Glassman
Evan Glassman
Steptoe & Johnson LLP
Daniel  Podair
Daniel Podair
Steptoe & Johnson LLP

Following the recent election in Wisconsin, which led to a number of voters contracting Covid-19, there’s been an increasingly heated debate concerning how to provide safe ballot access in November.

Various vote-by-mail proposals are being offered at both the state and federal levels. However, the debate over whether to vote-by-mail misses the larger picture. Most states already provide voters with access to a “no excuse required” vote-by-mail option.

Further, in states with more restrictive access to mail-in balloting, solutions are being pushed to ensure voters are able to vote-by-mail if they so choose. Thus the question is not whether voters will be able to vote-by-mail, but how voting by mail will work, and how best to ensure that it is available and accessible to all eligible voters.

According to the Brennan Center, most states, including many battleground states, already permit broad and comparatively easy access to mail-in ballots. Five states—Colorado, Hawaii, Oregon, Utah, and Washington—automatically send ballots to all registered voters (commonly called “universal vote-by-mail”) while another 29 states and Washington, D.C., provide no excuse mail-in ballots at a voter’s request. In these states, although voters are not automatically sent a mail-in ballot, any voter can obtain one without having to provide an excuse.

States without no-excuse mail-in elections will likely be confronted with a debate about how to conduct their elections and whether to eliminate any current barriers that may make mail-in balloting challenging. In some of these states, action is already being taken to ensure that any voter concerned about contracting Covid-19 can use a mail-in ballot for upcoming primary elections and/or the November general election.

For example, New York Gov. Andrew Cuomo (D) first issued an executive order stating “an absentee ballot can be granted based on temporary illness and shall include the potential for contraction of the COVID-19 virus for any election held on or before June 23, 2020.” The governor then issued executive orders mandating that absentee ballot application forms with postage-paid return envelopes be sent to all registered voters for the June 23 primary election and that such voters receive postage-paid return envelopes with their requested absentee ballots.

In New Hampshire, the secretary of state and attorney general have issued guidance stating that “[a]ny voter may request an absentee ballot for the September 2020 Primary and November 2020 General Elections based on concern regarding COVID-19.” In Texas, a judge recently signed an order permitting voters to request mail-in ballots for the state’s primary run-off election in July due to the Covid-19 pandemic. The order, however, has been appealed by the Texas attorney general who has threatened to levy criminal penalties against county election officials advising voters to apply for a mail-in ballot due to concerns about Covid-19.

In the states where voters, by law, are able obtain a mail-in ballot without providing an excuse, the main focus over the coming months will be making mail-in voting more accessible. States have strict deadlines for residents to request mail-in ballots, and voters may not know about these deadlines and their right to obtain a mail-in ballot without having to provide an excuse for requesting one.

In order to help alleviate this confusion, among a number of initiatives states have been, and will continue to examine, include automatically sending or registering voters for a mail-in ballot.

In Wisconsin, for instance, the Milwaukee Common Council voted to send absentee ballot applications to the city’s 300,000 registered voters with a postage-paid return envelope in an attempt to fully enfranchise its voters. Maryland has taken similar action to provide all eligible active voters with mail-in ballots through executive action for its June 2 primary (and April 28 Congressional special election) and California may soon follow for the November general election. In Ohio, pursuant to new legislation, each voter was sent information about how to obtain a mail-in ballot to vote in the state’s April 28 primary, although voters were not sent the ballot itself or even a ballot request form. Ohio’s experience, which saw mixed results at best, suggests that states would be well served by streamlining their mail-in voting processes and minimizing back and forth between voters and election officials, particularly by mail.

In New Mexico, however, the state Supreme Court unanimously rejected plans to automatically send mail-in ballots to all registered voters for the state’s June 2 primary and instead ordered the Secretary of State and county clerks to send mail-in ballot applications to all registered voters.

Ensuring Voter Access

In order to fully ensure the franchise, states should consider the following efforts, none of which would compromise election integrity:

  • setting deadlines for the return of mail-in ballots (i.e., permitting ballots to be postmarked by the day of the election);
  • pre-paying the postage costs for returning the ballots;
  • creating secure drop off (potentially drive-by) locations where voters could drop off their ballots, a protocol utilized by all five states with universal vote-by-mail; and
  • eliminating or adjusting ID or witness and notarization requirements for mail-in ballots.

With that said, states will still have to confront how best to maintain in-person voting options for those who are unable to access vote-by-mail. While it may appear to be beneficial during a time of pandemic, closing polling places can lead to long lines, which may increase health risks, and could disenfranchise voters. These types of actions lend themselves to partisan abuse and gain, and should be resisted.

While there is certain to be a robust debate concerning the mechanics of our November elections, state action concerning mail-in balloting in November will likely turn on how the pandemic spreads over the next few months. For most states, however, ensuring voter access to ballot boxes will involve making important adjustments to current rules, rather than starting from square one.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jason Abel is a partner in Steptoe & Johnson LLP’s Washington, D.C., office where he leads the firm’s political law and campaign finance practice. He served as chief counsel for U.S. Senate Committee on Rules and Administration Chairman Charles Schumer and prior to that, as counsel for Senator Schumer in his personal office. He teaches election law at University of Pennsylvania Carey Law School and campaign finance law at the George Washington University Law School.

Evan Glassman is a commercial litigation partner in Steptoe’s New York office where he has been navigating clients through courts in matters involving highly contentious issues for more than two decades. He also has both national and local political experience and currently serves as chairman of the Ethics Board for the Town of New Castle, N.Y.

Daniel Podair, a former congressional aide, is an associate in Steptoe’s New York office where he focuses his practice on white-collar criminal defense, government and internal investigations, and complex civil litigation.

This column reflects the opinion of the authors and not those of Steptoe & Johnson LLP or its clients.

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