Covid-19 has reshaped our lives, including how we vote. Since the pandemic first arrived in the U.S., states conducting elections have scrambled to provide voters with full access to the ballot box while maintaining health and safety under unprecedented circumstances. These efforts were met with mixed results.
The collective experience, however, provides us with a clearer road map to guide states in the remaining contests through and including the November general election. Possible solutions include ensuring adequate access to in-person polling places on Election Day, adopting measures to allow voters to cure issues with their absentee ballots, expanding early voting opportunities and access to absentee ballots, and making Election Day a civic holiday.
The Current Voting Landscape
As the Covid-19 pandemic spread across the country, many states took steps to enhance voter access to the ballot box for contests taking place this spring and summer, particularly through mail-in voting.
A number of states, including Connecticut, New York, South Carolina, and West Virginia, amended their rules to permit individuals concerned about contracting Covid-19 to vote absentee without providing an excuse, which was previously mandated by law.
Other states, including Michigan, New York, New Mexico, and Iowa, sent absentee ballot applications to all eligible registered voters, while states like Maryland and Nevada automatically sent all eligible active voters the actual ballots with a postage-paid return envelope. Additionally, legislation has already been passed in California to send mail-in ballots to all active voters for the November general election.
In contrast, other states have failed to act or have even taken steps in the opposite direction. In Texas, the state’s attorney general has actively opposed efforts to expand access to mail-in voting and convinced the U.S. Court of Appeals for the Fifth Circuit to block a district court order permitting Texans to vote by mail due to the pandemic.
Even in Iowa, where vote-by-mail efforts showed signs of success, legislation was passed to seemingly restrict ballot access in November. Notably, the law outright prohibits the secretary of state from sending absentee ballot applications to all voters (as was done for the state’s recent primary), absent advance approval from state legislators. Fortunately for voters in the Hawkeye state, legislators granted the secretary of state’s request earlier in July.
Despite these difficulties, a number of states seem to have benefited from additional preparation time, increased voter comfort with mail-in voting, and the opportunity to learn from the experiences of states which conducted elections in the early days of the pandemic. In Montana, for example, voters broke turnout records for primary elections in their respective states, with few issues having been reported.
Next Steps and Lessons Learned
For these steps forward, states have also faced setbacks in their efforts to make voting more accessible and safer. For example, they have struggled to account for unprecedented volumes of vote-by-mail applications, leaving courts to consider extending the mail-in deadline, with one judge in Pennsylvania offering an extension for 400 to 500 voters who had requested—but not received—their mail-in ballots.
Others, anticipating an increase in residents voting by mail, have reduced the number of operational in-person polling places, only to be met with hours-long wait times at the remaining polling places.
In the District of Columbia, just 20 of its usual 143 polling places were open; Kentucky chose to staff fewer than 200 polling locations out of its typical 3,700 (only one of which was located in Jefferson County, which is home to the largest Black population in the state). In both instances, voters were met with hours-long waits that required them to wait in line long after the polls were set to close.
Civil rights organizations and other election observers have argued that these closures—combined with other restrictions—are in some cases intentional and, at the very least, have had a disproportionate impact on minority voters and continue a troubling trend that began after Shelby County v. Holder, which invalidated the preclearance requirement under the Voting Rights Act.
But a shortage in polling places is not the only wrinkle in the current Covid-19 environment. In Georgia, state and local officials were faulted as they experienced glitches in new voting technology, ran out of provisional ballots, and saw long lines force voters to wait hours to cast their ballot. Even after a decision to extend voting hours in certain counties and precincts, voters remained in line well into the night.
The difficulty with this election cycle is its unpredictability. As Covid-19 cases continue to skyrocket, voters are more likely to vote by mail wherever possible. Absent swift and thoughtful intervention, this will potentially exacerbate the problems we have seen to date (e.g., delays in distribution and processing of mail-in ballots, confusion about polling place closures, socially-distanced long lines, and significant wait times).
Therefore, as states contemplate innovative protocols to ensure that voters have fair and equal access to the ballot box in November, they should consider:
- Staffing an adequate number of in-person polling places on Election Day to minimize wait times and/or opening larger venues—like arenas—to facilitate voting while ensuring compliance with federal, state, and local guidance on social distancing;
- Adopting measures to allow voters to cure issues with their absentee ballots, including increasing the number of ways voters can return their ballots (e.g., via email, in person on election day, or at an early voting center) and relaxing deadlines for requesting or receiving mail-in ballots;
- Expanding early voting opportunities and access to absentee ballots; and
- Making Election Day a civic holiday.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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 Schumer in his personal office. He teaches election law at the 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.
Chelsea Gold is an associate in Steptoe’s Washington, D.C., office where she focuses her practice on legislative and regulatory matters involving political law, insurance, and telecommunications issues.
This column reflects the opinion of the authors and not those of Steptoe & Johnson LLP or its clients.