Voting rights roundup: Coronavirus may disrupt upcoming elections — and lawmakers need to act

Voting rights roundup: Coronavirus may disrupt upcoming elections — and lawmakers need to act
Coronavirus outbreak. Screengrab courtesy of Johns Hopkins.


 Coronavirus: As the coronavirus pandemic grows worse, schools and public services have shut down as authorities urge people to distance themselves from others to avoid spreading the disease. Thanks in large part to Donald Trump lying to downplay the crisis for his own self-interest, the virus threatens to create major disruptions in many aspects of life and endangers the lives of countless Americans. But holding November's elections on time is essential to ensure the legitimacy and stability of our political system in the face of the ongoing public health crisis and the economic crisis it is causing, which is why voting by mail is an indispensable tool for ensuring voting is safe.

Congress and every state that has not yet done so should adopt universal voting by mail to ensure our elections keep running. Democratic Sen. Ron Wyden of Oregon introduced a bill on Wednesday that would provide $500 million in emergency funding to help states mitigate election disruptions and mandate that they offer mail voting in November.

Louisiana officials took a very different tack, announcing on Friday that they would postpone their April presidential primary to June 20, but this isn't a viable option for many states, nor is it a desirable one. Postponing or canceling November's general elections could produce a constitutional crisis and cripple Congress once its current term expires on Jan. 3. Elections still took place even amid the Civil War, and absentee voting itself was an innovation born of necessity during the war in several Northern states that didn't want to disenfranchise the soldiers who were fighting to save the Union.

​Universal vote-by-mail works by having officials send every registered voter a ballot that they can return by mail. Under such a system, states and localities can operate far fewer in-person voting locations and need far fewer poll workers to operate them. Ideally, the postage on ballots is prepaid, and voters are given ample time to cast their ballots without hassle. That includes being able to postmark ballots as late as Election Day, or to return them in person at one of numerous drop box locations. Officials must also continue to provide access to a limited number of in-person voting locations for those who still want to vote that way or are physically unable to do so by mail.

As shown on the map at the top of this post (see here for a larger version), Colorado, Hawaii, Oregon, Utah, and Washington have already transitioned to universal voting by mail. In many other states, voters can sign up to receive mail ballots on a permanent basis, which is why majorities in some states such as California, Arizona, and Montana already cast ballots by mail.

Meanwhile, several states, including MichiganPennsylvania, and Virginia, have in recent years made it considerably easier to vote absentee by mail. But a large number of states still don’t allow voters to cast absentee ballots without providing an excuse, such as illness or being away from home.

Adopting universal voting by mail is imperative now that the coronavirus has become a pandemic that could infect most Americans. As governments urge citizens to avoid crowded public spaces and to vigilantly wash their hands, asking millions of people to stand in lines on Election Day and use the same voting machines and the same pens to fill out paper ballots threatens public health and could dampen voter turnout. Furthermore, because poll workers are disproportionately the same elderly Americans who are most at risk, states and localities may have trouble finding enough poll workers, and those who do show up will be at greater risk of catching or spreading the disease.

These problems should be largely avoidable with universal voting by mail, since it almost entirely eliminates in-person voting and the public gatherings that go with it. Furthermore, mail voting is a cost-saving measure that frees up resources for other priorities because governments have to operate far fewer in-person polling places. It also has a long track record of increasing voter turnout in the states that have adopted it, thanks to how easy it makes it to vote, especially when prepaid postage negates the need for voters to go to the post office.

Of course, voting by mail is not a silver bullet, as it can create problems for voting access if not implemented properly alongside other voting methods for those who can't easily vote by mail. It also poses a health risk of its own: Washington’s secretary of state has urged voters not to lick their ballot return envelopes to seal them and instead moisten their envelopes with a sponge to minimize the chance that those handling ballots come into contact with potentially infected saliva.

Congress has the power to mandate that every state implement universal voting by mail, and if it acts now, it can provide states with the necessary funds to do so before November. Should Trump and Senate Republicans block House Democrats from passing such a bill, states themselves should take action to fully shift to vote-by-mail, and if that's not possible, then at least broadly expand no-excuse absentee voting. Doing so quickly will ensure that any new system can be properly implemented.

In fact, officials in a number of states have already taken action to protect voters. The list below details a few of these activities:

Finally, the ACLU has published a guide on how to request an absentee ballot in states with upcoming primaries.


 2020 Census: On Thursday, the Census Bureau unveiled its online portal for the 2020 census, which is the first-ever to be conducted primarily online. The bureau is mailing a 12-digit census ID to every American, which can be used to fill out the census on the web. It's possible to complete the census online without this number, but experts advise waiting for it to arrive as it will help census workers verify responses more easily. If, however, you do not receive an ID number by March 20, you should proceed without one.

As in decades past, millions of Americans have also been sent physical census forms that they can complete and mail back. It's also possible to respond over the phone. Every person residing in the U.S. regardless of their citizenship or immigration status is obligated to complete the census (note it does not ask about citizenship). For those who don't complete it online, by mail, or by phone, census workers will try to contact them in-person at their residence to get them to complete it ahead of the bureau's April 1 deadline.

Americans who complete the census on their own can make it significantly easier for the bureau to reach those who are hardest to count, such as those who lack reliable internet or mail service. Furthermore, completing the census without the need for a census worker to come to your door can help mitigate the impact of the COVID-19 pandemic, which threatens to disrupt the census' operations.

The outbreak could in fact have an impact on the census. Amid an ongoing wave of closures among businesses and schools, the Census Bureau told the House Oversight Committee on Friday that it could extend the census if necessary because of the disease, with officials saying they are monitoring response rates before making that determination.


 Alaska: Supporters of an initiative effort that would change Alaska's electoral system have submitted enough valid signatures to qualify for November's ballot if it survives an upcoming court battle. The measure would replace Alaska's traditional primaries with a "top-four" primary where the four candidates with the most support advance to the general election, regardless of party. In the general election, voters would use instant-runoff voting to choose from the final four. The initiative would also create campaign donor disclosure requirements for "dark money" donations that are currently exempt.

However, Alaska Republicans are trying to thwart the measure in court, arguing that it violates the limitation on the number of subjects a single initiative may address. A lower court previously ruled that the initiative could proceed, but an appeal is pending before the state Supreme Court.

 Florida: State House Republicans have passed a constitutional amendment over Democratic objections that it would impose additional restrictions on the initiative process. These restrictions follows on the heels of a 2019 GOP-backed statute that made it harder to put initiatives on the ballot, which itself was a reaction to several progressive measures that voters had passed over the last decade. Those measures included the restoration of voting rights for up to 1.4 million citizens who had been permanently banned from voting despite serving out felony sentences, as well as a pair of amendments that banned gerrymandering.

The GOP's new amendment would make it harder for organizers to place a measure before the state Supreme Court for review, a step required by law before an initiative can appear on the ballot. Currently, activists must gather 10% of the total number of signatures needed to qualify for the ballot statewide and in one-fourth of the state's 27 congressional districts in order to reach the Supreme Court. Republicans would increase that to 25% of the statewide total in half of all districts, which could waste significant time and resources if the court rejects a proposed measure.

The amendment would also require the state attorney general to ask the court whether proposals violate the U.S. Constitution; currently, the court's jurisdiction is confined to assessing whether the ballot summary language is accurate and the measure is limited to only one subject.

Additionally, the GOP's legislation would likely shorten the window to gather signatures. Under current law, organizers can collect signatures for up to two years; if they obtain a sufficient number, their initiative can appear on the ballot at the next general election. The GOP's new rule would instead invalidate all signatures after Feb. 1 of every even-numbered year. That would remove groups' ability to begin signature collection at the time of their choosing if they want to avail themselves of the full two-year period, in practice likely abbreviating the amount of time they have to gather petitions.

Unlike in the House, Republicans are one seat shy of the three-fifths majority in the state Senate needed to put the amendment on the ballot, and it's unclear if they have a Democrat willing to cross their party and support it. If the measure does make it onto the ballot, voters would have to approve it with a three-fifths supermajority for it to take effect.

 Ohio: Ohio's Supreme Court, which has a 5-2 conservative majority, has agreed to hear a legal challenge by the ACLU seeking to overturn a recent party-line decision by the state's Ballot Board to split a far-reaching voting rights initiative into four separate measures because it allegedly violated the single-subject limit for a ballot initiative. The ACLU is continuing to gather the signatures needed for each of the four measures, but if the group prevails in court, the measures would be reconsolidated.

The proposal includes automatic voter registration, same-day voter registration, a guaranteed number of early voting days, a ban on tightening Ohio's voter ID law to exclude non-photo IDs, and a requirement to carry out routine audits of election results.


 Georgia: Republican Secretary of State Brad Raffensperger has settled a federal lawsuit brought by Democrats who were fighting Georgia's system of arbitrarily deciding which absentee ballots to reject over supposedly non-matching signatures, a process they've carried out without even notifying affected voters. Under the settlement, election officials must contact voters whose ballots are rejected within three days, or within one day if they are cast in the 11 days prior to an election, and give them a chance to fix the problem.

Absentee rejections were one of many issues that plagued the 2018 midterms, which were marred by voter suppression efforts by Republican Gov. Brian Kemp, who at the time was secretary of state. Statewide, 3% of absentee ballots were rejected, or more than 8,000 in total. But that rate varied widely by county: populous Democratic-leaning Gwinnett County in the Atlanta suburbs, for instance, had a rejection rate of more than 7%.

 Montana: The ACLU has filed a lawsuit in state court seeking to overturn a constitutional amendment that Republican legislators passed and voters approved in 2018 to limit who can turn in someone else's absentee mail ballot, saying that it illegally discriminates against Native American voters. The lawsuit argues that the amendment violates a number of protections in the state constitution, including the right to vote, freedom of speech, freedom of association, and due process.

The amendment makes it a felony to turn in someone else's absentee ballot unless the person doing so is the voter's family member, caregiver, household member, or acquaintance, and even those individuals may turn in no more than six others' absentee ballots. Only postal workers and election officials are fully exempt.

Montana is one of a few states that lets voters opt into permanently receiving an absentee mail ballot in all elections, which is intended to make it easier to vote, and most voters cast their ballot that way. However, because many Native Americans living on remote reservations lack reliable postal service and access to transportation, many ask others who do not face such barriers to turn in their ballots for them. Plaintiffs noted that get-out-the-vote organizers often collect 80 or more ballots each.

Neither liberals nor conservatives hold a reliable majority on Montana's Supreme Court, making it uncertain how the justices would rule if this case eventually reaches them.

 Ohio: A panel of three judges on the 6th Circuit Court of Appeals has overturned a district court decision, ruling that election officials do not have to extend the deadline for sending absentee ballots to those who are in jail awaiting trial. The lower court had blocked Ohio from enforcing its normal absentee ballot deadline for those inmates, which is the Saturday before Election Day, because it was tighter than the deadline for people in other emergency situations, such as those in the hospital, who have until 3 PM on Election Day to request a ballot.

This ruling means that anyone who hasn't already voted early and is arrested and jailed within the last few days preceding an election will be disenfranchised even though they haven't been convicted of a crime. The 6th Circuit, however, concluded that requiring election officials to provide ballots to individuals who find themselves in such situations (around 1,000 in a typical election) would be too burdensome on election officials and said that Ohioans could mitigate their risk by voting early. Plaintiffs have not said whether they will appeal.

 Wisconsin: The conservative group seeking to have Wisconsin to purge more than 200,000 voter registrations has asked the state Supreme Court to expedite its appeal after the state Court of Appeals ruled against it last month. In January, the plaintiffs had sought an expedited review by the high court, but the justices rejected the request in a 3-3 deadlock despite the court's 5-2 conservative majority.

That unexpected ruling came about because one conservative justice, Brian Hagedorn, sided with the court's two progressives, while Justice Dan Kelly, another conservative, recused himself because his seat is up for election on April 7. However, Kelly now says he could change his mind and participate in the case if it stretches out past the election. But even if Kelly loses, his successor wouldn’t take office until early August, meaning his participation could determine the outcome.


 North Carolina: An African American voting rights advocacy group has filed a lawsuit in state court arguing that a bipartisan 2019 law to tighten absentee ballot requests in the wake of 2018's GOP election fraud scandal violates the state constitution. That scandal centered around a Republican operative who tampered with absentee ballots to fraudulently cast votes for the GOP candidate in the 9th Congressional District and may have discarded votes cast for the Democrat. In response, lawmakers near-unanimously enacted measures as part of a larger package of reforms to prevent a repeat occurrence in future elections.

However, the plaintiffs argue that by restricting who may assist voters with requesting an absentee ballot to only relatives, it prevents get-out-the-vote campaigns from encouraging absentee voting and therefore violates the state constitution's guarantee of the right to vote.

 Virginia: Democratic Gov. Ralph Northam has signaled he is likely to sign a number of election-related bills into law that Democrats recently passed in both chambers after taking control of the legislature for the first time in 25 years. Northam has already approved one measure that directs officials to count absentee ballots postmarked as late as Election Day, so long as they receive them no more than three days later.

Other bills awaiting Northam's signature include one that mandates prepaid postage on mail ballots, which are set to become more popular since Democrats also passed legislation to make it significantly easier to cast an absentee ballot. Another measure would replace the GOP's photo voter ID requirement with a provision allowing non-photo IDs such as a bank statement or utility bill.

However, Democrats failed to pass a bill before adjourning last week that would have revived a key protection of the Voting Rights Act that the Supreme Court's conservatives gutted in 2013. The state Senate and House each passed separate versions of the bill but were unable to agree on a single version, which would have required all localities in the state to obtain "preclearance" from the state attorney general (currently Democrat Mark Herring) or a state court before enacting any changes to election procedures to ensure they didn't discriminate against any racial, ethnic, or language minority.


 Florida: Florida's Republican-majority state House has passed a constitutional amendment with a large bipartisan majority to repeal the state's public financing system for statewide executive elections. If the GOP-run state Senate also approves the measure with at least a three-fifths majority, it would go to the voters in November, who would also have to pass it with at least 60% support for it to take effect. It's unclear why most Democrats sided with Republicans to pass it, especially after Democratic candidates made use of the program in 2018.

Under current law, candidates for statewide offices who raise qualifying contributions (at least $150,000 for governor and $100,000 for other offices) in increments of up to $250 receive public funding at a two-to-one matching rate. In return, they must agree to abide by expenditure limits of $2 per registered voter for governor or $1 per voter in other races, which in 2018 came out to $27 million and $13.5 million, respectively.

 New York: A state court has struck down the third-party ballot access restrictions and campaign finance regulations imposed by New York's State Public Campaign Financing Commission, which Democratic Gov. Andrew Cuomo and the Democratic legislature created after they were unable to agree on new reforms. The court held that the law creating the commission had itself violated the state constitution by improperly delegating legislative authority, siding with the progressive Working Families Party, which had sued over the commission's rules that would have made it harder for it to maintain access to the ballot.

Under the previous law, parties only had to win 50,000 votes in the most recent gubernatorial election to be automatically awarded a spot on the ballot over the next four years, and because New York's "fusion voting" lets candidates win the nomination of multiple parties, third parties play a prominent role in New York. However, the commission's now-invalidated rules required parties to meet a threshold every two years starting after 2022, and that benchmark would also increase: to either 2% or 130,000 votes in the preceding presidential election or gubernatorial contest, the latter of which takes place in midterms.

The WFP argued that Cuomo was retaliating against the party for backing a primary challenge against him from the left, prompting the organization to file suit alongside some legislators from both major parties.

This lawsuit also invalidates the campaign finance reforms the commission adopted, which set the donation limit for individual donors giving to statewide candidates at $18,000—considerably lower than the current $70,000 cap but still much higher than federal donation limits of $2,800 per election. The limits for state Senate and Assembly had also been lowered to $10,000 and $6,000, respectively. However, the commission hadn't reduced the limit for party committees, which can receive a hefty $117,300 from a single donor that they can then give to candidates.

The commission's public financing rules had set up a system where donations up to $50 were matched at a 12:1 ratio, those between $50 to $150 were matched 9:1, and those from $150 and $250 were matched 8:1. While that meant a $250 donation could qualify for an extra $2,300 in matching funds, the new system imposed a sharp limitation by only applying to donors who live within the district that a candidate is running for. That curtailed the effectiveness of this new program, particularly for campaigns in less affluent districts, and all of the campaign finance measures fell far short of what good government groups have advocated for.

Democratic state Attorney General Tish James, a Cuomo ally, has not yet said whether she will appeal the ruling.


 Arkansas: Redistricting reformers have filed a ballot initiative that would amend Arkansas' constitution to create an independent citizens' commission for congressional and legislative redistricting and are seeking to put it on November's ballot.

Currently, the Republican-run legislature would control congressional redistricting following this year's census, and an all-GOP board made up of the governor, secretary of state, and attorney general would oversee legislative redistricting. If this measure qualifies for the ballot and passes, it would prevent Republicans from using their first-ever opportunity to gerrymander the state.

The proposed measure would create a commission whose nine members cannot have been an elected official, lobbyist, party official, or an employee or relative of such people within the last five years. The state Supreme Court's chief justice would appoint a panel of three retired state judges to help select the commissioners from among citizen applicants, and they would group the applicants into three pools of 30 people each, one for Democrats, Republicans, and unaffiliated voters.

The governor and legislative leaders of both parties in each chamber would each be able to strike two applicants from each pool, whittling each group down to 20 names. The judges would then randomly select three applicants from each of the pools to choose the commission's nine members. It would take the vote of six members to pass any map, including a two-member majority from each of the three party groups.

The commissioners would be bound by several criteria when drawing maps, including that they be drawn using the total population and don't unduly favor any party. Commissions would also be required to consider, in order of priority, a number of other factors: contiguity; protection of racial and language minorities; barring county or city divisions except to satisfy the other criteria; compactness; and political competitiveness.

To qualify for the ballot, backers must obtain roughly 89,000 voter signatures, including signatures equal to 5% of the last gubernatorial vote in 15 of Arkansas' 75 counties. Importantly, 2020 could be the last chance to use an initiative to reform redistricting, since Republican lawmakers have placed a constitutional amendment of their own on November's ballot that could make it all but impossible to pass progressive-oriented ballot measures. The GOP's proposal would require that organizers gather signatures equal to 5% of the gubernatorial vote in 45 counties instead of just 15. Democratic voters, as Republican legislators are well aware, are heavily concentrated in a small number of counties.

 North Dakota: Election reformers have filed a ballot initiative to amend North Dakota's constitution in order to enact bipartisan redistricting reform and change both how North Dakotans cast their ballot and the electoral system they use.

The initiative would replace traditional primaries with a "top-four" system where the four candidates with the most support would advance to the general election regardless of party. From there, instant-runoff voting would be used to determine the winner. Additionally, the measure would require that any voting machines create a paper record of every vote (North Dakota currently uses paper ballots by default and voting machines for voters with disabilities) and that the secretary of state conduct routine audits of elections.

The other major change would be to remove the Republican-dominated legislature's control over state legislative redistricting (North Dakota only has a single congressional district, which covers the entire state). The proposal would hand redistricting over to the state Ethics Commission, which voters created with a 2018 ballot initiative. The Ethics Commission's five members are chosen unanimously by the governor and the majority and minority leaders of the state Senate. Commissioners can't be elected officials, candidates, or party officials, and unanimity would be required to pass any map.

The amendment would also impose several criteria on the maps commissioners could draw, listed in descending priority as follows: following federal law; equality based on total population; contiguity; ensuring minority groups and Native American tribes have an equal opportunity to elect their preferred candidates; barring maps that favor an incumbent, candidate, or party; keeping communities of interest whole; keeping local government jurisdictions, including tribal governments, whole; compactness; and maximizing political competitiveness.

It's unclear what would happen if the commissioners are unable to unanimously pass a map, since there is no provision in the amendment addressing such a scenario. Most likely, a federal or state court would step in to draw new districts, but there's no guarantee that judges would be bound by the specific criteria that the commission must follow. Nevertheless, either a commission or court-drawn map would likely be fairer than another decade of Republican gerrymandering.

To qualify for the ballot, supporters will have to gather nearly 27,000 signatures, equal to 4% of the state's 2010 census population.

 Oklahoma: Conservatives in Oklahoma have filed two new lawsuits in state court in an attempt to prevent a measure that would set up a new redistricting commission from appearing on the ballot this year.

Backers of the initiative revised and resubmitted their ballot summary text following the state Supreme Court's rejection of their original summary as inaccurate last month. In this latest suit, opponents argue that the new summary is also inaccurate; that the measure violates the U.S. Constitution by counting prisoners at their last address instead of where they are incarcerated; and that it's unconstitutional because it limits who can serve on the commission.

The measure in question would create an independent commission for congressional and legislative redistricting. The state Supreme Court previously ruled that it did not violate the First Amendment or the state constitution's limitation on initiatives addressing more than one subject. The high court has a 5-4 majority appointed by Democratic governors, but that alone is no guarantee that the court will reject these latest challenges.

 Utah: Utah Republicans have quickly passed a bill out of the legislature that could effectively gut the redistricting reform ballot initiative that voters passed in 2018. Most Democrats voted for the bill after extracting certain concessions from Republicans to stop them from completely repealing the bill, but it remains in doubt whether these concessions will actually prevent the GOP from gerrymandering again after the 2020 census.

The ballot initiative in question created a bipartisan advisory redistricting commission to recommend maps to the legislature drawn based on nonpartisan criteria. While the legislature could reject the commission's maps and draw their own, they'd still legally be bound by the same criteria. The original measure had legislative leaders from both parties each picking three members and the governor naming a seventh member as chair, and it would take five votes to recommend a map.

While this system would let Republicans appoint a majority thanks to their hold on the governor's office, it would take the vote of at least one of the Democratic appointees to pass a map. If the GOP-dominated legislature doesn't like what the commission proposes, it could pass its own maps, but it would still be constrained by the criteria described below, which could be enforced in state court.

In order of priority, those criteria are: following federal law and the Voting Rights Act; minimizing the number of divided municipalities; minimizing the number of divided counties; promoting compactness; ensuring transportation connections exist within districts; preserving neighborhoods and communities of interest; following natural geography; and nesting districts so that state Senate and state House borders overlap as much as possible. Most importantly, it bans unduly favoring or disfavoring any particular party or candidate intentionally and must be relatively "symmetrical" between the parties.

By contrast, the GOP's bill would let the commission recommend maps with a simple majority if they can’t obtain five votes, meaning Republicans would not need any Democratic support to approve a map. The partisan symmetry requirement would also be eliminated, and the commission would have greater flexibility to define the remaining criteria. Most importantly, the bill repeals the ability of voters to seek injunctive relief in court if the lawmakers pass a map that does not comply with the nonpartisan standards described above.

As such, this effectively invites GOP gerrymandering. Utah only lets voters initiate statutes instead of constitutional amendments, and with supermajority control, there was always the threat that Republicans could simply repeal the commission outright. While an outright repeal has not come to pass, it appears that this legislation is likely to neuter the commission.


 Georgia: Two lawsuits have been filed in state court to require an election that Republican Secretary of State Brad Raffensperger canceled for a state Supreme Court seat. Justice Keith Blackwell, who was appointed to his post by former Republican Gov. Sonny Perdue, announced last month that he intended to resign in mid-November, six weeks before his term ends, rather than seek re-election. However, by calling off the planned May 19 election, Raffensperger's move would give Republican Gov. Brian Kemp the chance to appoint a replacement for Blackwell, who wouldn't have to go before voters until 2022.

Democratic Rep. John Barrow and former GOP state Rep. Beth Beskin each filed their separate lawsuits after being denied the chance to run for Blackwell's seat, arguing that Raffensperger violated the state constitution's guarantee that voters can select their Supreme Court justices. They also noted that Blackwell hasn't even resigned yet, saying that Kemp can't make an appointment while the seat is still occupied. If plaintiffs prevail, it's unclear if this litigation will be resolved quickly enough to reinstate a May election, or whether it would have to be delayed.

Notably, this is now the second Supreme Court election that Raffensperger has canceled and that Barrow and Beskin had intended to run in. The first was for the seat of former Democratic-appointed Justice Robert Benham, who unexpectedly announced late last year that he would resign in early March. No suits were filed in that instance, so Kemp will get the chance to fill that seat. Once he does, eight of the court's nine justices will have been selected by Republican governors.


 Florida: As part of the ongoing federal litigation over the Florida GOP's modern-day poll tax on people who've served their felony sentences but still owe court fines and fees, a University of Florida professor serving as an expert witness for the plaintiffs has filed a report with the court showing just how extensive the disenfranchisement caused by the poll tax would be if it remains in place.

The report estimates that of roughly 1 million people who were supposed to regain their voting rights, 775,000 of them still owe financial obligations in court and would be barred from voting, while only 226,000 are now eligible to vote. Furthermore, 43% of the disenfranchised are African American, roughly three times the black share of the state's overall adult population.

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