Executive Summary
Our election system is unprepared for the current pandemic. The only way to ensure the continued functioning of our democracy and the safety of our citizens is for every state to provide every American with access to a mail ballot. Yet in order for large-scale absentee voting to be secure and effective by November, election officials must begin working to adapt state election systems now.
The goal of this memorandum is to provide succinct guidelines for states that are moving to rapidly expand mail-based voting systems. It will outline the best practices for implementing mail-in ballot systems that ensure equity and security for all voters, particularly voters with disabilities, communities of color, and other groups that will face particular difficulties voting in this crisis. It will also describe the current status of mail-based voting laws across the country through a 50-state survey that describes the current policy landscape in each state. Finally, it will provide recommendations for how the federal government should step up to support the rapid expansion of vote by mail in the face of a severe challenge to the health and vitality of our democracy.
To prepare for the November election, it is critical that states give every citizen access to a mail ballot and take the following steps to ensure an equitable and safe election, and that the federal government provide funding for states to rapidly implement these changes.
- Remove barriers to receiving and casting mail ballots by eliminating any requirements that ballots be notarized or witnessed, designing ballots in a way that maximizes accessibility and safety, prepaying for postage on all election materials, providing online ballot tracking, and expanding deadlines for requesting and returning absentee ballots;
- Ensure that all ballots are counted by giving voters an opportunity to correct inadvertent mistakes or omissions when filling out their absentee ballot envelopes, such as forgetting to sign the envelope or putting their date of birth on the wrong line;
- Provide sanitized, in-person polling locations that allow for social distancing, as well as 24-hour secure ballot drop-off locations for communities that cannot vote by mail. States should offer these options during an early voting period prior to the election that includes Saturdays, Sundays, and evening hours;
- Educate voters about the changing election processes.
Introduction
As the United States finds itself in the grips of the growing COVID-19 pandemic, the largest and most deadly pandemic in almost 100 years, states and the federal government are confronting the reality that our nation is woefully unprepared to conduct the 2020 elections during an outbreak. Multiple presidential primary elections have already been postponed while states grapple with how to administer secure and safe elections in November.
As these conversations have intensified, there have been urgent calls to expand vote by mail infrastructure in states across the country, and it has become increasingly clear that expanding access to vote by mail may be the only way to ensure the safety of our citizens and the continued functioning of our democracy in a moment of immeasurable crisis.
However, most state systems that enable Americans to receive and cast mail ballots are not adequately positioned to scale in advance of the November elections. To be clear, in recent elections only 24 to 26% of Americans have been voting by mail. It will not be easy to scale this system or meet this moment in time for November, yet the election is going to need to rely on mail voting more than ever before.
Expanding access to mail ballots will require an immense infusion of resources, the exercise of executive emergency powers or immediate adoption of new laws and regulations in most states, and a series of focused interventions to protect access to the ballot. Without informed policymaking, marginalized communities will be shut out of the system; lawsuits will be filed; our election results contested; voters will miss absentee ballot deadlines and opportunities; and the health and vitality of our democracy will be further eroded. Florida and other states are already reporting that they are inundated by absentee ballot requests for which they are not prepared to process.
The imperative in this moment is to help states swiftly expand their vote by mail capacity by providing all voters with access to an absentee ballot while rapidly adopting the necessary safeguards to maximize free, fair, and equal access and ensure the integrity of our election system.
What is Vote by Mail?
“Vote by mail,” can refer to one of multiple policies that allow individuals to receive a ballot in the mail in advance of Election Day. Some states already mail ballots to all registered voters each election, while others allow registered voters to request that an absentee ballot be mailed to their home.
The United States Constitution gives the power to administer state and federal elections to the 50 states. Within the limits of the Constitution, states generally have the autonomy to determine how elections are administered, how voter records are maintained, the amount of funding allocated for individual elections, and the practices and procedures that govern an individual’s interaction with the voting process. Congress can and does act to regulate elections nationwide, but, by and large, elections are a creature of state law.
How Vote by Mail Works
In jurisdictions that have adopted universal vote by mail, ballots are mailed to every registered voter several weeks before Election Day. The voter can either mail their completed ballot back to the elections office or drop it off at a secure drop-off location, or they can cast a ballot in-person at a polling location on Election Day or at an early voting location.
Voters casting mail ballots must provide identifying information, including their signature on the ballot envelope, which enables the election officials to securely verify the voter’s identity. In states with no-excuse absentee voting (called “vote by mail” in some states), ballots are not automatically mailed to all registered voters, but all registered voters may elect to receive a ballot in the mail.
Because state laws as to who receives a ballot in the mail vary, there is significant variance in the percentage of registered voters who have access to mail ballots in each state. Below is an overview of state laws regarding vote by mail.
Universal Vote by Mail Elections: Six states, known as “vote by mail” states, require or allow counties to send ballots in the mail to all registered voters for all elections. Voters in these states are not required to return their ballots by mail, but they do all receive a ballot in the mail. This is the most robust and broadly inclusive version of vote by mail.
- In four truly universal vote by mail states (CO, HI, OR, WA), all registered voters receive a ballot in the mail for all statewide elections and primaries.
- In an additional two vote by mail states (CA and UT), all counties in the state have the authority, or option, to send ballots in the mail to all voters in all elections, but they are not required to participate.[1]In Utah, all counties have opted to run vote-by-mail elections in 2020.[2]
- In California, 14 of the 58 counties have indicated they intend to run vote-by-mail elections in 2020.[3]
No-Excuse Absentee Voting: In addition to the six universal vote by mail states, an additional 27 states[4] plus the District of Columbia have no-excuse absentee voting, which allows anyone to vote by mail without providing a reason, or “excuse” (such as absence or disability). In these 27 states, any registered voter is eligible to receive a ballot in the mail.
In the twenty-seven no-excuse absentee states, the state will need to rapidly pivot its election systems to be ready to absorb a surge of absentee voter applications, invest in training election officials, and develop large-scale voter education to encourage, protect, and make absentee ballots accessible to all voters. Wherever possible, the state should proactively send all voters an absentee ballot application in the mail, without voters having to request it.
Excuse-Required Absentee Voting: Eighteen states[5] currently require registered voters to provide an “excuse,” or special reason, to have a ballot sent to their home. This is a highly restrictive version of vote by mail that does not allow states to scale up their vote by mail systems to meet the current need.
In most of these states, the state legislature can simply pass a law opening up absentee voting to all registered voters. In a few states, executive action or a constitutional amendment would be needed to create no-excuse absentee voting.[6] If a constitutional amendment is required to create no-excuse absentee voting, the state legislature can add an excuse to cover emergencies or pandemics. Several no-excuse states do have excuses that allow voters to receive an absentee ballot if they are unable to go to the polls due to an illness[7], which some states are interpreting to extend to a situation where a pandemic prevents most people from getting to their polling place, including those who are not sick.[8]
The percentage of votes cast by mail has tripled since 1991. However, only about a quarter of votes in the country are cast by mail. Rapidly increasing the number of Americans who are able to vote by mail will require an enormous, nationwide effort of unprecedented scale and scope.
How to Protect Voters While Expanding Access to Mail Voting
Given the unprecedented magnitude of this crisis, and the short timeline before Election Day, rapidly increasing mail ballot access and processing is not going to be easy. However, this moment requires that states make mail ballots available to all voters and adopt other critical measures to ensure that all voters have safe and secure access to the polls.
Along with rapidly expanding absentee ballot access, states must also adopt several necessary safeguards to ensure that this policy can be properly implemented. All states must ensure that all voters have access to mail ballots, but they must do it in a manner that guarantees a secure and equitable system.
The past several election cycles provide a preview of how vote by mail, if done poorly, can actually disenfranchise voters and undermine systems of election administration.
In 2018 in Georgia, over 8,000 absentee ballots were thrown out because voters were not notified of problems with their ballot envelope or given an opportunity to fix them, which had a disproportionate impact on voters of color.[9] In 2020 the Georgia Secretary of State settled a lawsuit which alleged that the State failed to notify voters of absentee ballot rejections and provide the appropriate opportunity to contest the rejection.[10] The Arizona Secretary of State recently settled a similar lawsuit[11] and litigation is currently pending in Michigan.[12]
As mail-in ballot usage increased in Arizona, polling places were closed—about 85% between 2005 and 2018. Even though the closures may have been proportionate to the number of people voting absentee, the lack of polling places disproportionately impacted Black and Native voters. In 2016 and 2018, there were 5-6 hour wait times at some voting locations in Maricopa County. Native Americans, many of whom do not receive mail at their homes and do not own vehicles, found themselves hours away from the nearest polling location.[13]
In order to avoid replicating these flaws on a nationwide scale, states must implement the following essential best practices as they scale their mail-based voting systems. A detailed outline of specific recommendations follows.
Remove barriers to receiving and casting absentee ballots. In order to scale up vote by mail to meet the needs of states across the country, states must eliminate unnecessary hurdles to receiving and casting a mail ballot by providing ballot tracking, including prepaid postage on ballot return envelopes, designing ballots in a way that ensures accessibility, and eliminating unnecessary requirements around the absentee process.
- Eliminate unnecessary requirements: In most states, voters may receive and cast an absentee ballot after providing basic identifying information such as a signature, address, and/or date of birth. However, some states place additional hurdles on obtaining or casting an absentee ballot, such as requiring voters to obtain a notary and/or witness signature, requiring voters to provide a copy of their ID or an identification number (e.g. driver’s license number or Social Security number). These unnecessary hurdles have been historically weaponized to suppress the vote in Black and Brown communities and should be removed so all registered voters can receive and cast an absentee ballot after providing basic identifying information.
- Provide ballot tracking so voters can see that their ballot was received and counted: Electronic ballot tracking allows voters to know the status of their ballot at any time, from when election officials mail it out, to when the voter returns the ballot and it’s verified and counted. Most states allow voters to ensure their ballots were received and/or counted by tracking their absentee ballot online or through text messaging. The 11 states[14] that do not provide this service should do so, so that voters have the confidence to know that their vote was counted.
- Make mail ballots accessible and safe: Mail ballots should be designed to maximize accessibility, and ensure safety for postal workers and election officials. Self-sealing envelopes can help protect postal workers and election officials. Ballots must be accessible to voters in different languages,[15] and providing electronic ballot delivery for voters with disabilities ensures they can use their own at-home assistive technology to receive and mark their ballot before printing it out and returning it.
- Allow third parties to return ballots: Given that many people may be self-quarantined, it is important that third parties be allowed to return absentee ballots on behalf of others.
- Accept and respond to absentee ballot requests in a manner designed to maximize voter participation: Voters should be allowed to request absentee ballots be delivered by mail as close to the election as possible, and should be allowed to request an absentee ballot in person up to and until Election Day.[16] Absentee ballots should be provided to voters immediately upon in-person application and should be mailed promptly upon receipt of an absentee ballot application starting at least a month before the election.
- Government-paid return postage: Many people do not keep stamps on hand and it will be significantly harder to obtain postage during a pandemic. It is critical that the government pay return postage on ballot envelopes so that all voters can return their mail ballots. Providing prepaid postage can increase voter turnout. After King County, Washington started paying for postage in August 2018, it saw the highest turnout rate for a primary in 14 years.[17]
States must ensure that all absentee ballots are counted: Evidence shows that absentee ballots are rejected at a rate nearly twice as high as in-person ballots[18] due to confusing ballot design, deadlines that are too early, and insufficient processes for notifying voters of problems with absentee ballot envelopes so they can be corrected. Ballot rejection tends to disproportionately impact women, military personnel, voters of color, people with disabilities, and people for whom English is a second language.
- Give voters an opportunity to correct inadvertent mistakes or omissions on their absentee ballot envelopes: In order to prevent the rejection of absentee ballots it is critical that states develop uniform processes for notifying absentee voters of problems with their ballot envelopes, such as a missing signature or a date of birth written on the wrong line. Voters must be notified of these errors, and given a chance to correct them. Currently, 15 states[19] have a statutory process to notify voters about problems with their absentee or mail ballot envelopes and give them an opportunity to correct those problems. Best practices include immediately notifying voters of problems via phone, text, and email, and counting ballots if the voter corrects the problem within a week of being notified of it.
- Provide election officials adequate time to process absentee ballots: As mail ballot increases in states, it is critical that election officials can process the ballots on a rolling basis as they come in prior to Election Day. Election officials should be prohibited from producing results prior to Election Day, but be allowed to verify voter information on the ballots as they come in. This process ensures that processing the increased mail ballots is manageable while also giving election officials time to notify voters of any problems with their ballots in time for them to correct those issues.
- Ensure mail ballots and envelopes minimize voter confusion: One way to reduce mail ballot rejection rates is to design ballots and envelopes to minimize voter confusion. The Center for Civic Design has resources to make ballots and envelopes as user friendly as possible.[20]
- Accept absentee ballots that are postmarked by Election Day: Given that mail delivery may be delayed, it will be important to accept ballots that are postmarked by Election Day, rather than only accepting those received by Election Day.
- Provide uniform guidelines and training for election officials: States must provide election officials with uniform guidelines and training so absentee ballots are only rejected in specified and limited circumstances, and so voters are notified in a uniform manner and given ample opportunity to fix problems with their absentee ballot envelope. If signature matching is a part of a state’s voter verification process, training in handwriting identification is critical to ensuring uniformity.
States must provide in-person voting options that comply with CDC public health guidelines. While voters should be encouraged to vote by mail ballot if at all possible, it is critical that states maintain in-person polling options for those who are unable to do so.
- Polling places should be sanitized and comply with social distancing recommendations: Polling places should be cleaned and disinfected according to the CDC’s guidance and should incorporate social distance recommendations to limit the spread of disease while voting.
- Offer early voting opportunities, including nights and weekends: To spread out in-person voting activity, states should offer in-person early voting for several weeks leading up to the election, and make it available during weekend and evening hours. Research shows that evening and weekend availability is particularly important to ensure sufficient ballot access for voters of color and younger voters.[21]
- Provide 24-hour drop boxes for depositing completed ballots: In addition to providing opportunities for people to cast their ballots in person, it is also critical that states provide secure 24-hour drop boxes for voters to deposit their completed and sealed absentee ballots. Drop boxes that are equitably spaced with respect to distance and population density have been demonstrated to increase voter turnout, particularly among women and voters of color.[22]
- Prioritize in-person polling locations where they are most needed: Election officials should prioritize in-person polling options in Native American reservations, where many people do not receive mail at their homes, as well as in other historically disenfranchised communities and in areas with higher rates of in-person voting.
- Consider visual accessibility: As mailed ballots pose significant accessibility challenges for people with visual disabilities, states should ensure they have ADA-accessible voting machines at in-person voting locations. Since some voters with visual disabilities may be quarantined at home, states should also allow for electronic ballot delivery so that voters can use their own at-home assistive technology to receive and mark their ballot before printing it out and returning it.
- Consider language accessibility: Many voters who speak English as their second language rely on translation services at in-person voting locations. Therefore, it is critical to ensure that in-person locations are maintained in communities who may need translation services. States should allow voters to choose the language of their absentee ballot during their voter registration or absentee ballot request, include translations of multiple languages on all ballots, and/or provide online translations of the ballot with clear instructions on how to access them.
Educate voters about changing voting processes. Any change, big or small, to voting systems will only be as successful as voters make it. And a massive shift toward mail balloting will require a robust plan for voter education and outreach.
- Provide voting information multiple times in multiple languages: Evidence from California shows that any depressive effects of a switch to vote by mail can be partially offset by mailings including information on new voting processes.[23] States and localities must provide clear, accessible information on changes to the voting process. Information must be sent and provided through multiple means at multiple times, be made available in multiple languages, and be written at a lexical level that accommodates lower levels of document literacy.[24]
- Invest in voter outreach: States should earmark funds specifically to educate voters on changes to the election system. This should include both direct outreach and advertising efforts by the state and election officials and grants to local community organizations that work in historically disenfranchised communities.
Notes
[1] North Dakota allows counties to opt to send absentee applications (but not ballots) to all voters in all elections. Another 14 states only allow certain jurisdictions to conduct elections by mail, or they only conduct certain types of elections by mail, while the majority of states (29 states) currently do not run any elections as vote by mail elections.
[2] National Conference of State Legislatures (2020). All-mail elections. https://www.ncsl.org/research/elections-and-campaigns/all-mail-elections.aspx
[3] “Timeline for Implementation”, _About California’s Voter’s Choice Act_, California Secretary of State Website, https://www.sos.ca.gov/elections/voters-choice-act/about-vca/ (Naming five counties that implemented in 2018 and ten more that will implement in 2020. One of the ten new ones is L.A., for which implementation means a “Vote Center” election rather than a mail ballot election.)
[4] AK, AZ, CA, FL, GA, IA, ID, IL, KS, MD, ME, MI, MN, MT, NC, ND, NE, NJ, NM, NV, OH, OK, PA, SD, VT, WI, WY. California offers no-excuse absentee voting in the counties that have not opted to conduct vote-by-mail elections.
[5] AL, AR, CT, DE, IN, KY, LA, MA, MO, MS, NH, NY, RI, SC, TN, TX, VA, WV. Note that a bill that creates no-excuse absentee voting has already passed both chambers in Virginia. If signed by the governor, it will become law on July 1, 2020.
[6] CT, DE, NH, and NY may require a constitutional amendment in order to allow for no-excuse absentee voting. In the other 14 states, no constitutional amendment is needed to create no-excuse absentee voting.
[7] AR, IN, KY, MO, NY, RI, VA, and WV allow voters to receive an absentee ballot if they are unable to go to the polls due to illness. Also note that some states have statutes that confer administrative power to expand use of absentee ballots in the event of emergency.
[8] In Virginia, election officials announced that an existing illness-related excuse would justify absentee voting by all voters in May municipal elections impacted by Covid-19, which was announced to be all voters. Graham Moomaw, “Virginia officials say all voters can cast ballots by mail for May municipal elections”, Virginia Mercury, March 17, 2020, https://www.virginiamercury.com/2020/03/17/virginia-officials-say-all-voters-can-cast-ballots-by-mail-for-may-municipal-elections/.
[9] https://www.cnn.com/2018/10/20/politics/gwinnett-county-absentee-ballots/index.html
[10] The complaint can be found at https://bit.ly/2vYDAcF. The settlement agreements can be found at https://bit.ly/2U59HPM and https://bit.ly/33ke1ip.
[11] https://bit.ly/3aZhdT2
[12] https://www.michiganradio.org/post/lawsuit-challenges-michigans-signature-matching-requirement-absentee-ballots
[13] https://cronkitenews.azpbs.org/2019/10/01/native-american-voting-rights-suppressed/
[14] CT, HI, IN, KS, ME, MO, MS, NY, TN, TX, and WY
[15] https://civicdesign.org/projects/language/
[16] Voters mandated to switch from early in person voting are accustomed to voting closer to Election Day, so ideally, mail ballots should be able to be requested and accepted through all forms of submission through the end of Election Day. See Ashok, Vivekinan, Daniel Feder, Mary McGrath, and Eitan Hersh. “The Dynamic Election: Patterns of Early Voting Across Time, State, Party, and Age.” Election Law Journal: Rules, Politics, and Policy 15, no. 2 (June 2016): 115–28. https://doi.org/10.1089/elj.2015.0310.
[17] https://kcelections.com/2018/09/06/2018-primary-election-voter-turnout-exceeds-projections-as-prepaid-postage-launches-countywide/
[18] According to the 2016 Election Assistance Voting Survey 1.2% of absentee ballots were rejected ((318,728 “rejected” + 77,511 “other”)/ 33,378,450 ballots returned) compared to 0.67% of ballots cast in person ((615,528 provisional ballots completely “rejected” + 96,010 “other”)/ 106,736,052 ballots cast). See Overview Tables 2 and 3 of the Election Administration and Voting Survey 2016 Comprehensive Report: A Report to the 115th Congress, accessed online at https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf
[19] AZ, CA, CO, FL, GA, HI, KS, MN, MT, NV, OH, OR, TX, UT, WA. Michigan’s Bureau of Elections recently issued similar guidelines to local election officials. Iowa and Massachusetts also have statutory processes for notifying voters of ballot deficiencies, but only voters who return their ballots early are given an opportunity to fix the problem.
[20] https://civicdesign.org/projects/vote-by-mail/
[21] Herron, Michael C., and Daniel A. Smith. “Race, Party, and the Consequences of Restricting Early Voting in Florida in the 2012 General Election.” Political Research Quarterly 67, no. 3 (2014): 646–65 and Kaplan, Ethan, and Haishan Yuan. “Early Voting Laws, Voter Turnout, and Partisan Vote Composition: Evidence from Ohio.” American Economic Journal: Applied Economics 12, no. 1 (January 2020): 32–60. https://doi.org/10.1257/app.20180192.
[22] “Do Drop Boxes Improve Voter Turnout? Evidence from King County, Washington.” Election Law Journal 17, no. 1 (2018): 58-72, and McGuire, William, Benjamin O’Brien Gonzalez, Katherine Baird, Benjamin Corbett, Lawrence Livermore Lab, and Loren Collingwood. “Evaluating the Impact of Drop Boxes on Voter Turnout,” n.d., 41.
[23] See Bergman, Elizabeth, and Philip A. Yates. “Changing election methods: How does mandated vote-by-mail affect individual registrants?.” Election Law Journal 10, no. 2 (2011): 115-127.
[24] At the time of the last comprehensive national measure, 34% of Americans demonstrated basic or below basic levels of document literacy. See “A First Look at the Literacy of American Adults” 2006. National Center for Education Statistics. https://nces.ed.gov/NAAL/PDF/2006470.PDF