This post is the first in a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare's collaboration with the Stanford-MIT Healthy Elections Project.
Most states, as well as the District of Columbia, allow any eligible voter to vote via an absentee ballot without providing an excuse. However, in several states, absentee voting is available only to certain classes of voters who might have particular difficulty reaching the polls, such as the elderly or those who expect to be out of town on Election Day. The coronavirus pandemic has made many people who would usually vote in person reluctant or even unable to do so, for fear of contracting COVID-19. Accordingly, litigants in a number of states have brought lawsuits seeking to compel states to give more voters access to the absentee ballot. So far, these suits have been almost universally unsuccessful.
These lawsuits usually assert one of a few distinct claims.
First, litigants have challenged the processes by which voters can apply to vote by mail. In some states, the coronavirus has increased demand for vote-by-mail applications to the point where the application infrastructure has had trouble keeping up, leading voters to file suits to ensure that states preserve sufficient opportunity to apply for a mail-in ballot. Some lawsuits have pushed back on state initiatives that would have made the application process for mail-in voting more difficult. In Iowa, for example, the state’s decision to enact a policy that made the application process more difficult resulted in extensive litigation.
Second, some complaints have sought to make absentee voting available to any registered voter, even in states where the law currently restricts voting by mail to certain enumerated groups. These complaints generally argue that limitations on who can vote absentee place an undue burden on the right to vote, at least during the pandemic. Voters who are ineligible to vote absentee under the state’s existing rules are required to vote at a polling place. These suits argue that this puts these voters at risk of coronavirus exposure. This argument usually fails in court.
Third, some plaintiffs have filed lawsuits arguing that state laws that allow absentee voting in cases of illness or disability should also enable any voter who lacks immunity to the coronavirus to vote by mail. These claims have usually failed also. Courts have been reluctant to extend these statutory provisions to the vast majority of the electorate that still lacks immunity to the virus.
Finally, several lawsuits challenge state restrictions that limit absentee voting to seniors above a certain age. They argue that such state law restrictions violate the 26th Amendment’s prohibition on using age as a basis to deny or abridge a citizen’s right to vote. In some state courts, these arguments have succeeded, depending on the court’s interpretation of state law. But federal courts have uniformly refused to find that age restrictions violate the U.S. Constitution.
Applying to Vote by Mail
Before a voter’s eligibility to vote by mail is determined, the voter must usually apply for an absentee ballot. Plaintiffs in some states have challenged the process by which voters receive and submit applications to vote by mail.
In LULAC of Iowa v. Pate, plaintiffs in Iowa challenged a law that made the application process more difficult. For decades, election officials had been able to use available voter database information to complete missing data in voters’ applications for absentee ballots and then send absentee ballots to those voters. But in June 2020, the Iowa legislature passed a law that prohibits officials from looking up missing or incorrect information in voter databases and, instead, requires officials to retrieve the missing information by contacting the voters themselves, often by mail. This change converted a simple and routine process into an arduous and time-consuming one, at a time when the number of absentee ballot applications was expected to skyrocket, especially from voters unfamiliar with the process. Nevertheless, the Iowa Supreme Court rejected the plaintiffs’ challenge. The court explained that the law was unlikely to result in significant disenfranchisement and that it was justified by the state’s interest in preventing voter fraud.
Enforcement of this law resulted in substantial disruption to absentee voting applications. Pursuant to this law, Iowa’s secretary of state issued a directive prohibiting county election officials from sending out forms already populated with voter information. When some county officials did anyway, the Republican National Committee (RNC) and the Trump campaign sued, asking an Iowa state court to enjoin the county election officials from processing these forms. The court granted the requested injunction, thereby invalidating approximately 64,000 absentee ballot applications. The state’s Democratic Party has since filed its own lawsuit, seeking to strike down the secretary of state’s directive as inconsistent with Iowa administrative and constitutional law. However, the Iowa Supreme Court recently rejected this challenge, finding the secretary of state’s directive authorized by state law.
The vote-by-mail application process was contentious in other states, particularly in states where the coronavirus pandemic struck just before the deadline to apply for absentee ballots. However, many of these states have resolved their issues relatively swiftly. In Idaho, for example, a surge in vote-by-mail applications caused the state’s online application portal to crash. A district court then granted an emergency injunction, extending the application deadline by a week. Similarly, plaintiffs in Ohio challenged the state’s deadline for applying for an absentee ballot, arguing that the timing of the deadline violated their right to vote. Their claim was dismissed as moot, after the Ohio state legislature passed a bill changing vote-by-mail procedures in light of the coronavirus.
Finally, plaintiffs in some states have brought lawsuits seeking to require the state to send vote-by-mail applications to all eligible voters. However, these challenges have usually failed. In Alaska, plaintiffs brought such a suit after the state had sent mail-in applications only to elderly voters. But the federal district court denied the plaintiffs’ requested injunction, finding that their right to vote had not been abridged. In the court’s reasoning, any registered voter in Alaska could still fill out an online or paper application to vote by mail. A state court in Pennsylvania also denied a request for a similar injunction, finding that the plaintiffs had not demonstrated that the injunction was necessary to prevent them from suffering irreparable harm.
Absentee Balloting Without an Excuse
Although most states allow any registered voter to vote by mail, some states require that voters have one of several accepted reasons for requesting the absentee ballot. Plaintiffs in several states with such requirements have brought legal challenges, seeking to make absentee voting available to everyone. These claims generally assert that the right to vote—protected by either the state’s constitution or the U.S. Constitution—requires that all voters be eligible to vote by mail, at least during the pandemic. So far, these claims have been unsuccessful.
In NAACP v. Missouri, a Missouri state court rejected a challenge to the excuse requirement for voting absentee brought under state law. The Missouri Constitution states that “[q]ualified electors of the state who are absent . . . may be enabled by general law to vote at all elections by the people.” The court interpreted this language as permitting, but not requiring, absentee voting, explaining that “[t]he word ‘may’ denotes discretion, not an obligation.” Additionally, the Missouri Supreme Court had previously held that absentee voting was a “special privilege,” not a right. The court also reasoned that “strict compliance with the statutory requirements for absentee voting” was necessary to combat what the state claimed were absentee voting’s “unique risks of fraud and abuse.” The court also found that the Missouri Constitution did not guarantee a “constitutional right to cast an absentee ballot in any election for any reason.” This decision has since been vacated. It is pending reconsideration after the Missouri state legislature passed an emergency law expanding the availability of absentee balloting.
Some state trial courts have ruled in the other direction. In Fisher v. Hargett, a Tennessee state court initially interpreted the Tennessee Constitution to guarantee a universal right to vote by mail. However, the Tennessee Supreme Court quickly reversed this determination. The trial court in Fisher ruled that voting was a fundamental right under the Tennessee Constitution. Infringements of the right to vote under the Tennessee Constitution are evaluated under the Anderson-Burdick test. This test comes from the Supreme Court’s decisions in Anderson v. Celebrezze and Burdick v. Takushi, cases in which candidates for elected positions challenged state laws that prevented them from appearing on the ballot. Since then, however, the test has been applied more generally to a wide variety of laws allegedly infringing on the right to vote under the U.S. Constitution. The Anderson-Burdick test requires the court to balance the challenged law’s burden on voting against the law’s benefits to the state.
After extensive factual findings, the court in Fisher determined that the state law’s restrictions on absentee voting were not sufficiently justified. The court found that the state could easily process and verify absentee ballots from more voters and that absentee voting did not pose a special risk of voter fraud. But the court found that the state’s restrictions imposed a substantial burden on voters, because requiring voters to show up at polling places during a pandemic could pose a serious health risk.
The Tennessee Supreme Court disagreed with the lower court’s analysis. The state’s supreme court also analyzed Tennessee’s vote-by-mail eligibility criteria under the Anderson-Burdick test but found that the plaintiffs’ right to vote was only minimally burdened. The court held that most voters had no unique vulnerability to the coronavirus and could still safely show up at the polls. The state supreme court declined to do its own analysis of the state’s justifications for the restrictions on absentee balloting, deferring instead to the legislature’s stated reasons that the limits furthered the state’s interests in “1) prevention of fraud; 2) fiscal responsibility; and 3) feasibility.”
The most significant federal court decision on the issue of eligibility for absentee voting comes out of the U.S. Court of Appeals for the Fifth Circuit. In Texas Democratic Party v. Abbott, the plaintiffs argued that the 14th Amendment requires Texas to implement universal no-excuse absentee balloting. Plaintiffs saw initial success in the federal district court, which invalidated Texas’s restrictions on absentee voting during the pandemic, condemning these restrictions as a return to the “yesteryear of the Divine Right of Kings.” However, in a more rhetorically measured opinion, the Fifth Circuit reversed.
The appellate court declined to apply the Anderson-Burdick test, finding that the U.S. Supreme Court’s earlier decision in McDonald v. Board of Election Commissioners controlled instead. In McDonald, the Supreme Court upheld a state law denying certain incarcerated individuals the ability to vote by mail. The court held that this law did not implicate the right to vote because it did not “absolutely prohibit” the affected individuals from voting but, instead, simply denied them access to one particular mechanism designed to make voting easier. Applying McDonald, the Fifth Circuit held that the Constitution does not require universal absentee voting. It found that Texans had not been “absolutely prohibited” from voting because, the coronavirus notwithstanding, they could still vote in person. The Fifth Circuit reviewed Texas’s vote-by-mail laws under rational basis review, probing only whether the challenged laws had some “rational” connection to a “legitimate government interest.”
The U.S. Court of Appeals for the Seventh Circuit followed the Fifth Circuit’s approach. In Tully v. Okeson, plaintiffs in Indiana brought a challenge under the 14th Amendment, alleging that Indiana’s system abridged their right to vote. Indiana, like Texas, does not allow no-excuse absentee voting. Voters are eligible to vote by mail only if they fall into one of 13 statutorily enumerated categories. Citing McDonald, the Seventh Circuit court found that limitations on absentee voting do not fall within the scope of the right to vote because they do not absolutely prevent the plaintiffs from voting. The court also rejected the plaintiffs’ equal protection claim, holding that Indiana’s scheme satisfied both rational basis review and the Anderson-Burdick test. The court found that the denial of absentee balloting was a minimal burden on the plaintiffs’ ability to vote and that this minimal burden was justified by the state’s interest in “ensuring safe and accurate voting procedures.”
Fear of Contracting COVID-19 as an Excuse
Several states allow citizens to vote by mail only if they have an illness or disability that makes it difficult for them to show up at a polling place in person. This year the coronavirus changed the usual calculus here. The airborne nature of the virus makes it potentially dangerous for almost anyone to show up at polls, where large collections of people gather and often must wait for long periods of time. Groups in various states filed lawsuits, asking courts, in light of the risk of coronavirus exposure during in-person voting, to interpret the provisions made available for people with illness or disability to allow almost anyone to vote by mail. Most of these claims have failed. Courts have generally held that these provisions of state law apply only when the voter is suffering from an illness or a disability. Per most courts, fear of contracting an illness, such as COVID-19, is not enough.
This issue was litigated most extensively in Texas. In March, the Texas Democratic Party (TDP) filed a suit in state court, seeking a declaration that a lack of immunity to the coronavirus constitutes a “disability” under the Texas Election Code and, accordingly, that anyone without immunity to the coronavirus should be permitted to vote by mail. The Texas Election Code defines a disability as “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” The TDP argued that lack of immunity to the coronavirus meets this definition. It is a “physical condition,” the TDP argued, that could easily “injur[e] the ... health” of a voter who contracts COVID-19 by showing up at a polling place.
The trial court agreed with the TDP, holding that any qualified voter who lacks immunity to the coronavirus would be eligible to vote by mail. However, the Texas attorney general then issued an order directing election officials not to accept absentee ballots from voters whose only excuse for voting by mail was that they lacked immunity to the coronavirus. The trial court’s order was stayed pending appeal. The litigants then petitioned the Texas Supreme Court for a writ of mandamus to compel election officials to permit mail voting in accordance with the trial court’s order.
The Texas Supreme Court denied the petition to force election officials to obey the trial court’s order. It held that voters are not eligible to vote by mail just because they lack immunity to the coronavirus. The majority opinion reasoned that an absence of immunity to disease was not a “physical condition” under the Election Code, because it did not result in a unique “incapacity” relative to the general population. But the court did make one important clarification. It explained that voters applying for an absentee ballot do not need to explain or provide proof of their disability; they simply needed to check a box on the application indicating that they have a disability. The court found that state election officials have no “duty ... to look beyond the application” or “investigate each applicant’s disability.”
In a concurring opinion, Justice Jeffrey Boyd construed the statute slightly differently but reached a similar result. Boyd said he would have held that lack of immunity to the coronavirus is a “physical condition” but not one with sufficient “likelihood” to “injur[e] ... the voter’s health.” He argued that, under the court’s precedents, the term “likelihood” requires that it be “probabl[e]”—not merely “possibl[e]”—that the specified event would occur. Justice Jane Bland agreed that lack of immunity to the coronavirus could be a “physical condition” under the Election Code. But Bland emphasized that state law leaves it up to individual voters to determine whether the coronavirus is likely to injure their health.
Courts in other jurisdictions have reached similar results. In Missouri v. NAACP, for example, the state conference of the NAACP asked a state court to declare that Missouri law permits absentee voting for any voter who fears contracting COVID-19 at a polling place. Missouri allows a citizen to vote by mail if the voter “expects to be prevented from going to the polls to vote on election day due to” a host of factors including “[i]ncapacity or confinement due to illness or physical disability.” The plaintiffs argued that voters who refused to go to the polls for fear of contracting COVID-19 are “confine[d] due to illness or physical disability.”
The state circuit court rejected this reading, explaining that the plaintiffs’ construction of the statute would allow citizens to vote by mail if they fear contracting any illness, not just COVID-19. According to the court, such a reading would broaden the availability of absentee voting far beyond the Missouri legislature’s expressed intent. The Missouri Supreme Court, however, reversed the ruling, instructing the trial court to reconsider its decision after Missouri’s legislature passed a law expanding vote-by-mail to voters in specified at-risk groups. On remand, the trial court again denied the plaintiffs’ requested injunction, finding that plaintiffs without COVID-19 did not suffer from “incapacity or confinement due to illness” under the updated statute.
Not every state has interpreted its law so narrowly. In Fay v. Merrill, a Connecticut state court considered a challenge to the governor’s order allowing any eligible voter to vote by mail. The Connecticut Constitution allows the legislature to authorize voting by mail only for particular groups of qualified voters, including those “unable to appear at the polling place on the day of the election ... because of sickness or disability.” The court construed this constitutional provision to permit absentee voting for any qualified voter concerned about contracting COVID-19 during the pandemic. The court found that the words “because of sickness” did not require the voter to suffer from the sickness. Instead, the “existence of a raging global pandemic” was justification enough. The court distinguished its ruling from that of the Texas Supreme Court, arguing that the Texas Election Code contained distinct language permitting absentee voting only when the voter has contracted COVID-19.
Several states limit no-excuse absentee voting to any qualified voter over a certain age—usually 60 or 65. Plaintiffs have brought lawsuits challenging these age limits, seeking to make absentee voting universally available to younger voters as well. These claims assert that the age limits violate younger citizens’ right to vote and that they discriminate on the basis of age in violation of the 26th Amendment.
These claims have consistently been rejected by state and federal courts. The U.S. Court of Appeals for the Fifth Circuit rejected such a challenge in Texas Democratic Party v. Abbott. In addition to its claims under state law and under the 14th Amendment, the Texas Democratic Party also challenged Texas’s absentee voting law under the 26th Amendment. It argued that the law unconstitutionally discriminates on the basis of age. The plaintiffs argued that the law should be subject to strict scrutiny, pointing to the text of the 26th Amendment, which states that the right to vote “shall not be denied or abridged ... on account of age.” The circuit court, relying on McDonald, reasoned that, if limits on absentee voting do not deny or abridge the right to vote at all, then neither could they deny or abridge the right to vote “on account of age.” The court therefore refused to apply strict scrutiny and applied only rational basis review, which the challenged law easily survived.
However, even courts applying the Anderson-Burdick test have upheld age limits on no-excuse absentee voting. The U.S. Court of Appeals for the Seventh Circuit also considered a 26th Amendment challenge in Tully v. Okeson. The court first found that McDonald controlled and that the challenged age limits did not implicate the right to vote. But the court also held, in the alternative, that the age limits would survive review under the Anderson-Burdick test. The court found that many younger voters would still be eligible to vote by mail because they would meet other vote-by-mail requirements, and that any minimal burden on voters who had to show up at a polling place was justified by the state’s interest in “ensuring safe and accurate voting procedures.”
Similarly, in Disability Law Center of Alaska v. Meyer, the plaintiffs challenged a decision by the Alaska state government to mail absentee voting applications to all registered voters over the age of 65. The federal district court denied the plaintiffs’ request for an injunction requiring the state to send applications to all registered voters. The court found that younger voters’ rights had not been “abridged” within the meaning of the 26th Amendment, because even though they would not be mailed applications proactively, they could still fill out online or paper applications to vote by mail.
Ensuring Receipt of Mail-In Ballots
Plaintiffs in several states have brought lawsuits to ensure that eligible voters actually receive mail-in ballots. However, few courts have yet to rule on the merits of these claims. One example comes from a suit filed by the city of Green Bay, Wisconsin. The city brought a constitutional claim, arguing that, in light of the pandemic, election officials should be required to automatically send ballots to all eligible voters. But this case was dismissed for lack of subject matter jurisdiction under a doctrine that holds that municipal organizations lack standing to bring an equal protection challenge against their own state government. Additionally, a district court in Georgia dismissed various challenges to state election procedures and absentee voting procedures, finding that they all presented nonjusticiable political questions.
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Despite a slew of recent litigation over the application process and eligibility requirements for voting by mail, courts have shown reluctance to get involved. Litigants have asserted claims under nearly every relevant source of law—local, state and federal; administrative, statutory and constitutional. But the courts have generally exhibited a common theme in all of these cases: reluctance to wade into the political thicket. The next part of this five-part series explores lawsuits related to the submission of mail ballots, including claims challenging the cost of postage, ballot receipt deadlines, bans on ballot collection assistance and lack of accommodations for mail voters who have disabilities