Published by The Lawfare Institute
in Cooperation With
This post is the second of 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.
As the coronavirus pandemic has wrought unprecedented change on the U.S. election system in general and on mail voting in particular, voters and advocates have challenged nearly every aspect of the vote-by-mail process. This post surveys litigation brought since March 2020, challenging vote-by-mail ballot submission rules and procedures that voting rights advocates argue burden the right to vote.
Specifically, this post discusses four types of legal battles playing out across the country aimed at removing barriers for voters who cast their ballots by mail. The lawsuits challenge Election Day ballot receipt deadlines for mail-in ballots, the requirement that ballots be returned in a “secrecy sleeve,” the cost of postage required to mail ballots, and the lack of accommodations for voters with disabilities who seek to send ballots by mail. The claims are largely constitutional, but plaintiffs have also employed statutory arguments. Plaintiffs have had little success on ballot postage and voter assistance claims, as well as in Pennsylvania’s highly publicized secrecy sleeve litigation, but have seen mixed results in Election Day receipt deadline and accessibility challenges.
Ballot Receipt Deadlines
A central category of vote-by-mail litigation concerns ballot receipt deadlines. Some states, such as Florida, Oklahoma, Georgia, Maine and Texas, mandate that mail ballots be received by election officials no later than Election Day in order to be counted. Other states require that mail ballots be postmarked no later than Election Day and received by election officials within some specified number of days after, typically two to seven days. In practice, Election Day ballot receipt deadlines result in tens of thousands of rejected ballots. In the 2020 primaries, more than 50,000 ballots were rejected for arriving late, including more than 20,000 in Florida alone. According to data from the 2018 and 2016 Election Administration and Voting Survey, late receipt is the number one cause of rejected mail ballots.
Plaintiffs have brought four main types of federal law challenges to Election Day mail ballot deadlines, three under the U.S. Constitution and one under the Voting Rights Act. The constitutional claims are that Election Day deadlines constitute an undue burden on the right to vote under the Anderson-Burdick test, violate the Fourteenth Amendment by denying procedural due process and violate the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs initially saw some success on the constitutional claims, with district courts granting plaintiffs’ requests for preliminary injunctions in Georgia and Wisconsin. However, appellate courts subsequently stayed these injunctions. As shown in the discussion of DNC v. Wisconsin State Legislature below, the Supreme Court has so far largely supported these appellate court stays.
The New Georgia Project case, filed in May, illustrates the undue burden and procedural due process arguments in operation. For their undue burden claims, plaintiffs relied on what is known as the Anderson-Burdick test. Developed out of two separate U.S. Supreme Court rulings, the test calls for balancing the burden imposed on the electorate by a voting regulation against the state’s interests in relying on that regulation. Plaintiffs argued that Georgia’s requirement that all mail-in ballots be received on or before Election Day posed a severe burden on the right to vote by requiring voters to learn the deadline, receive their ballots with enough time to complete and return them, and guess how many days it would take their ballots to reach election officials through the mail service. Plaintiffs further argued that even those voters who meet the deadline suffer a burden on their right to vote because they are deprived of the ability to consider their choice of candidate until Election Day due to the requirement that their ballot be in the mail soon enough to reach election officials by the Election Day ballot receipt deadline.
In addition, plaintiffs argued that Georgia’s Election Day ballot receipt deadline violates the Due Process Clause under the Mathews test. The Mathews test calls for balancing an individual’s interest in not being deprived of a right without certain procedural protections against the government’s interest. Plaintiffs argued that Georgia’s failure to count ballots received after Election Day and its requirement that mail voters cast their votes early deprived the voters of their protected interests “to vote and have that vote count” and to “cast a meaningful and informed vote,” since they would have “incomplete information” when they had to mail it. Plaintiffs also argued that additional or substitute procedural safeguards were available by counting mail-in votes postmarked by Election Day and received within five business days of the election, which would be allowed under Georgia law.
In other cases, plaintiffs have argued that Election Day ballot receipt deadlines violate a third constitutional provision: the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs in Lewis, for example, argued that Texas’s Election Day receipt deadline resulted in disparate treatment of voters because different counties enforce the deadline with differing degrees of strictness.
Some federal district courts have been receptive to plaintiffs’ constitutional claims, but federal appellate courts have subsequently stayed district courts’ injunctions. For instance, the court in New Georgia Project granted the relevant part of a preliminary injunction on Aug. 31, effectively extending Georgia’s receipt deadline. But in early October, the U.S. Court of Appeals for the Eleventh Circuit stayed the injunction. The appeals panel found that the district court “erred on two analytical fronts: first, in finding that Georgia’s Election Day deadline severely burdened the right to vote; and second, in improperly weighing the State’s interests against this burden.” The Eleventh Circuit also criticized the district court for “accepting the plaintiffs’ novel procedural due process argument,” noting that, “even if we could choose to innovate a new approach (which we cannot), we would see no reason to do so.”
Similarly, in DNC v. Bostelmann, in response to a challenge to Wisconsin’s Election Day ballot receipt deadline during the state’s primary elections, a federal district court ordered the state to accept all ballots postmarked within six days of the election. However, the U.S. Supreme Court stayed this order, reasoning that it was issued too close to the election and was, therefore, likely to cause confusion among voters. Five months later, in late September, the district court granted a preliminary injunction in four consolidated lawsuits, including DNC v. Bostelmann. The injunction extended the deadline for the receipt of absentee ballots until Nov. 9, provided the ballots were postmarked by Election Day, Nov. 3. But the U.S. Court of Appeals for the Seventh Circuit stayed the district court’s injunction in early October, agreeing with the Wisconsin legislature’s contentions that a federal court should not change rules so close to an election and that political, not judicial, officials should decide when a pandemic justifies changes to otherwise valid rules.
On Oct. 26, the U.S. Supreme Court, in a 5-3 vote, rejected Democrats’ and voting rights groups’ request to strike down the Seventh Circuit’s stay. The court did not issue a majority opinion, but in multiple concurrences, Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh criticized the federal court’s intervention in state election procedures. Roberts leveled criticism not only at the federal district court that ordered an extension of Wisconsin’s receipt deadline but also at district courts more broadly. In describing the court’s deadline extension as “improper,” Roberts noted that “[i]n this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a State’s laws.” Gorsuch similarly found the district court’s order inappropriate on the basis of both separation of powers and voter confusion concerns. Under the Constitution, according to Gorsuch, judges cannot “improvise with their own election rules in place of those the people’s representatives have adopted.” He stressed the measures already taken by the Wisconsin legislature to respond to the pandemic and argued that the district court was simply complaining that “the state hasn’t done enough.” Here, Gorsuch voiced concern that there were no clear rules for a judge to use in determining exactly when a ballot receipt deadline would be acceptable. Additionally, Gorsuch raised the possibility that “[l]ast-minute changes” to election procedures run the risk of “confusion and chaos and eroding public confidence in electoral outcomes.”
Concurring, Kavanaugh articulated three reasons why the district court’s injunction was unwarranted. First, the injunction violated the Purcell principle by altering state election laws close to an election. Kavanaugh explained that the Purcell principle serves to ensure that the “rules of the road” are clear leading up to the election, reducing voter and election official confusion, promoting efficiency, and giving citizens confidence in the election result. He noted further that it would “turn Purcell on its head” to interpret the principle as stated that a federal appellate court should not overturn a district court order close to the election. Instead, he saw the federal circuit court’s intervention here as correcting the district court’s violation of Purcell. Second, Kavanaugh stated that the district court’s injunction “misapprehended the limited role of the federal courts in COVID-19 cases,” because it is the role of the state legislature to “address the health and safety of the people.” While asserting that federal courts lack the expertise needed to make changes to election laws due to the pandemic, he listed cases in which the Supreme Court has recently stayed federal court injunctions that “second-guessed state legislative judgments about whether to keep or make changes to election rules during the pandemic.”
Third and finally, Kavanaugh wrote that “the District Court did not sufficiently appreciate the significance of election deadlines. Under the Anderson-Burdick test, he said, a state’s “reasonable deadlines” for election processes do not raise constitutional issues because “a State cannot conduct an election without deadlines.” In particular, he claimed that states with Election Day receipt deadlines “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flop the result of an election.” He further stated that quick election results help to preserve the stability of elections. Kavanaugh endorsed in a footnote Chief Justice William Rehnquist’s view in Bush v. Gore that state courts are limited in their ability to “rewrite state election laws for federal elections” because Article II states that rules in presidential elections are to be established by state legislatures.
Justice Elena Kagan, in dissent, took issue with what she deemed Kavanaugh’s and the Seventh Circuit’s “misunderstanding of Purcell’s message.” Purcell instructs courts to “consider all relevant factors, not just the calendar.” While an autumn injunction could confuse voters, “there is not a moratorium on the Constitution as the cold weather approaches.” The federal district court was correct in issuing its order, Kagan argued, since an extension of the ballot receipt deadline would not confuse voters about how to cast their ballots or discourage Wisconsinites from exercising their right to vote. Kagan also emphasized what she viewed as the detrimental effects of the court’s decision on Wisconsin voters’ enfranchisement. “Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day,” Kagan wrote. “Without the district court’s order, they must opt between ‘brav[ing] the polls,’ with all the risk that entails, and ‘los[ing] their right to vote.’”
In addition to claims arising under federal constitutional law, plaintiffs have challenged ballot receipt deadlines under Section 2 of the Voting Rights Act. For example, plaintiffs in Middleton v. Andino asserted that South Carolina’s ballot receipt deadline “abridge[s] and in some cases entirely den[ies] the rights of African American voters,” due in part to socioeconomic differences between racial groups in South Carolina that exacerbate the coronavirus’s effects. The district court denied plaintiffs’ motion for a preliminary injunction extending the receipt deadline. Plaintiffs in Yazzie v. Hobbs were also unsuccessful in bringing a challenge under the Voting Rights Act. On appeal, the U.S. Court of Appeals for the Ninth Circuit ruled that plaintiffs—“six members of the Navajo Nation who reside on the reservation in Apache County, Arizona”—lacked standing because they failed to plead a “concrete and particularized injury.” The Ninth Circuit also found that a favorable decision would not redress plaintiffs’ alleged injury because it would be infeasible for election officials to identify and separate mailed ballots cast by on-reservation Navajo Nation members from those cast by other voters.
In two somewhat unusual cases from the 2020 primaries, county boards of elections in Pennsylvania petitioned state courts to allow them to extend their own receipt deadlines. In one instance, the sheer volume of mail-in ballots that had to be sent to voters resulted in some voters receiving their ballots too late to return them by the deadline. In the other case, a design flaw for a website to request a mail-in ballot in another Pennsylvania county resulted in apartment numbers being left off of voters’ addresses, preventing mail-in ballots from reaching them in time to be returned by the receipt deadline. A state court granted the first petition, while another state court denied the latter.
For the general election, plaintiffs in Pennsylvania have secured a vote-by-mail ballot deadline extension. In Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the state’s receipt deadline and “adopt[ed] the Secretary’s informed recommendation of a three-day extension of the absentee and mail-in ballot received-by deadline to allow for the tabulation of ballots mailed by voters via the USPS and postmarked by 8:00 p.m. on Election Day to reduce voter disenfranchisement.” In late September, Republican state legislators, as well as the Republican Party of Pennsylvania, filed applications for a stay of the Pennsylvania Supreme Court’s order at the U.S. Supreme Court. But in mid-October, the Supreme Court denied Republicans’ request, permitting Pennsylvania officials to count ballots received up to three days after the election. It takes five votes to issue a stay, but the court was tied on whether to grant Republicans’ request. Neither side of the court explained its position.
At the U.S. Supreme Court, Republican state legislators had argued that the receipt deadline extension granted by the Pennsylvania Supreme Court violates federal law that requires holding “all elections for Congress and the Presidency on a single day throughout the Union” and violates the Elections Clause of the U.S. Constitution by “seizing the authority to set the times, places, and manner of federal elections from the state legislature.” The legislators argued that the Elections Clause grants direct authority to Pennsylvania’s General Assembly to regulate federal elections in Pennsylvania and that only Congress, not the Supreme Court of Pennsylvania, can alter the General Assembly’s election regulations. While the legislators’ request for review acknowledged the coronavirus context of the Pennsylvania Supreme Court’s decision, it noted that “the Supreme Court of Pennsylvania’s own special master found that COVID-19 is not likely to disrupt the November General Election ballot receipt deadline.”
In early October, Secretary Kathy Boockvar and Pennsylvania Democrats filed briefs in response to legislators’ and Republicans’ requests for review. Boockvar argued that the legislators’ stay request raised concerns of federalism. “This Court should not second-guess the Pennsylvania Supreme Court’s straightforward construction of the Commonwealth’s constitution,” Boockvar stated in her brief. The secretary urged that “state courts be left free and unfettered by [this Court] in interpreting their state constitutions.” In addition to federalism implications, a decision by the U.S. Supreme Court to grant legislators’ stay request could have resulted in the rejection of thousands of ballots. Such an outcome could have had an outsize impact on the results of the 2020 presidential election, since at least 3 million votes are expected to be cast by mail alone in Pennsylvania this year and because President Trump won Pennsylvania by a narrow margin of 44,000 votes in 2016. However, as previously noted, the U.S. Supreme Court has allowed the Pennsylvania Supreme Court’s decision to stand.
Plaintiffs have also brought state law claims mirroring federal undue burden claims, and the results have been mixed. For instance, plaintiffs in Alliance for Retired Americans challenged Maine’s ballot receipt deadline as an undue burden under both the U.S. Constitution and the Maine Constitution. The court, in denying plaintiffs’ motion for a preliminary injunction, found this argument unavailing, stating that “even in 2020, [the ballot deadline] imposes only a modest burden on the right to vote.”
Michigan state courts have been all over the place on this issue. Plaintiffs in League of Women Voters of Michigan v. Benson unsuccessfully petitioned the Michigan Court of Appeals for a writ of mandamus ordering the secretary of state to accept ballots postmarked by the election date, with claims under the Michigan Constitution. The Michigan Supreme Court denied plaintiffs’ leave to appeal. In Michigan Alliance for Retired Americans v. Benson, plaintiffs initially saw a better outcome, as a Michigan state court granted plaintiffs’ preliminary injunction enjoining enforcement of Michigan’s Election Day ballot receipt deadline. The court held that, “as applied to plaintiffs under the facts and evidence presented in this case, the ballot receipt deadline violates plaintiffs’ constitutional rights” under Article II, Section 4, of the Michigan Constitution. It ruled that an “absent voter ballot that is postmarked by no later than November 2, 2020, and received within 14 days after the election, is eligible to be counted.” However, in mid-October, a state appellate court reversed that ruling, holding that under League of Women Voters of Michigan v. Benson, it is constitutional to require that ballots be received by the close of polls on Election Day to be counted.
Finally, a notable case arising out of New York’s June 23 primary, Gallagher v. N.Y. State Board of Elections, illustrates the interplay between ballot deadlines and postal service operations. In response to the coronavirus pandemic, the New York State Legislature modified existing law to require that “absentee ballots postmarked on or before Election Day be counted.” Ballots were to be counted if they arrived before the close of polls on June 23 or were postmarked by June 23 and arrived by June 30. For some reason, “thousands of absentee ballots for the June 23 Primary were not postmarked,” even though they were mailed in. Evidence reviewed by the court indicated that a large number of ballots, especially in New York City, were invalidated because they lacked a postmark. Plaintiffs brought suit in the Southern District of New York, claiming violations of their First and Fourteenth Amendment rights, as well as corresponding rights under the New York Constitution.
Applying Anderson-Burdick, the U.S. District Court for the Southern District of New York found the burden on plaintiffs’ right to vote to be “exceptionally severe” because “a large number of ballots will be invalidated ... based on circumstances entirely out of voters’ control.” Having found a severe burden, the court applied strict scrutiny, finding that the state’s interest in ensuring ballots were cast before polls closed on Election Day was valid but that the postmark requirement was “grossly overinclusive,” covering ballots that “cannot possibly have been put in the mail later than June 23.”
In assessing plaintiffs’ Equal Protection Clause claim, the court also examined whether the postmark requirement “created a voting process where the state ‘by later arbitrary and disparate treatment, value[s] one person’s vote over that of another.’” The court found that votes were valued differently in two ways. First, the U.S. Postal Service handled the postmark issue for ballots differently across the state. Second, because ballots travel through the mail at different speeds, ballots mailed at the same time on the same day might, by chance, be treated differently—one might be counted and the other might not.
Having found a substantial likelihood of success on the merits, as well as a strong public interest in granting an injunction, the court determined that the equities tipped in plaintiffs’ favor. In early August, the court granted a preliminary injunction requiring local elections boards to count otherwise valid absentee ballots which were “(1) received by June 24, 2020 without regard to whether such ballots are postmarked by June 23, 2020 and (2) received by June 25, 2020, so long as such ballots are not postmarked later than June 23, 2020.”
Ballot Secrecy Sleeve Requirements
Another salient category of vote-by-mail litigation concerns ballot “secrecy sleeve” rules, which require voters to place completed ballots in paper envelopes before enclosing those envelopes in outer, or return, envelopes. The purpose of secrecy sleeves is to separate the voter’s identifying information from the ballot itself in order to protect the voter’s privacy. At least 15 states have laws requiring election officials to provide absentee voters with secrecy sleeves but, in many of those states, use of the secrecy sleeve is optional, and failure to use it is not grounds to reject the ballot.
In a high-profile case in Pennsylvania, Pennsylvania Democratic Party v. Boockvar, plaintiffs argued that failure to use the secrecy sleeve should not result in rejection of the ballot. In fact, most Pennsylvania counties accepted “naked ballots,” those not placed in secrecy envelopes, during the state’s June 2020 primary. Plaintiffs argued that the language of Pennsylvania’s secrecy sleeve statute did not require rejection of “naked ballots.” On Sept. 17, the Pennsylvania Supreme Court held that naked ballots must be rejected in the November general election. After determining that the language of the statutory secrecy sleeve requirement is “neither ambiguous nor unreasonable,” the court came to “the inescapable conclusion that a mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be disqualified.”
According to Philadelphia’s city commissioner, Lisa M. Deeley, more than 100,000 ballots across the state could be rejected for missing secrecy sleeves. The Pennsylvania Supreme Court’s decision has “sparked a flurry of voter education efforts from nonprofit organizations and political campaigns to highlight the now-required secrecy envelope.”
Cost of Postage for Mailing Ballots
Another set of legal challenges targets states’ failure to cover the costs of mailing completed mail-in ballots. While about a dozen states—including Hawaii, Oregon, and Washington, which regularly conduct all elections by mail—do provide voters with prepaid ballot return envelopes, most states do not.
Plaintiffs have brought suit in several states, including Georgia, Florida, Oklahoma, Maine, South Carolina, North Carolina, Texas and Pennsylvania, alleging two constitutional violations. First, plaintiffs argue that requiring voters to pay for postage to cast their votes or apply for ballots constitutes a poll tax in violation of the Fourteenth and Twenty-Fourth Amendments. Second, plaintiffs assert that forcing voters to pay for stamps is an impermissible burden under the Anderson-Burdick test. As of mid-October, plaintiffs have had little success in ballot postage litigation. Courts have largely denied plaintiffs’ motions for preliminary injunctions on both their poll tax and Anderson-Burdick ballot postage claims, generally finding that paying for postage is not a poll tax and that burdens on voters do not outweigh state interests.
The case of Black Voters Matter Fund v. Raffensperger provides an illustrative example of the postage-as-poll-tax argument. Georgia law allows voters to vote absentee for any reason after applying for an absentee ballot. Plaintiffs sued Georgia’s secretary of state because voters must provide postage to apply for absentee ballots via mail and to return completed ballots. Plaintiffs contend the cost of stamps is tantamount to a poll tax, even though there are no “statutes or regulations that require government officials to charge voters postage on absentee ballot applications.” The federal district court dismissed plaintiffs’ poll tax claim in early August. Although the court recognized that in-person voting is “potentially a difficult” option for many voters, “particularly during a pandemic,” the court held that because in-person voting “theoretically remains an option,” “stamps are not poll taxes under the Twenty-Fourth Amendment prism.” In September, plaintiffs appealed the district court’s poll tax ruling to the U.S. Court of Appeals for the Eleventh Circuit.
Other plaintiffs challenging postage requirements as poll taxes have seen mixed, but largely negative, results. For instance, in Nielsen v. DeSantis, the court summarily dismissed plaintiffs’ claim that a Florida statute requiring voters to pay postage for mail ballots constituted a poll tax, simply stating that “[r]equiring a voter to pay for postage to mail a registration form or ballot to a Supervisor of Elections is not unconstitutional or otherwise unlawful.” In Alliance for Retired Americans, the Supreme Judicial Court of Maine denied plaintiffs’ motion for a preliminary injunction in late September, and similarly concluded that requiring postage on a mail-in ballot is not a poll tax. A federal district court in Oklahoma reached the same conclusion in DCCC v. Ziriax. While plaintiffs have seen minimal success on poll tax claims, the U.S. District Court for the Western District of Texas declined in Lewis v. Hughs to dismiss plaintiffs’ challenge to a Texas law requiring voters to pay for ballot postage. The court held that it was sufficient at the motion-to-dismiss stage for plaintiffs to have alleged that postage constituted a fee that must be paid if voters wished to avoid risking “harming their health to vote in person.” The Fifth Circuit summarily affirmed the district court’s opinion in early September and then withdrew its opinion in early October.
Plaintiffs have also brought claims that postage requirements are an impermissible burden under the Anderson-Burdick test. Parties allege a variety of burdens, many of which are exacerbated by the coronavirus. Plaintiffs in Black Voters Matter Fund, for instance, alleged that a failure to provide prepaid postage burdened the right to vote by requiring those least able to afford stamps to pay, those who lack internet access or credit cards to risk their safety by going to the post office during a pandemic, and those who have no means to do so to travel to the post office. Plaintiffs in Lewis, Alliance for Retired Americans and New Georgia Project made similar arguments, asserting that government interests are insufficient to justify these burdens.
As with poll tax claims, plaintiffs have generally seen negative results for their Anderson-Burdick claims. In denying plaintiffs’ motion for a preliminary injunction in Black Voters Matter Fund, the federal district court in Atlanta noted that plaintiffs failed to demonstrate “a substantial likelihood of success on their argument that the burden of the postage requirement outweighs the cost to the state of the requested relief.” While plaintiffs appealed the court’s poll tax ruling to the Eleventh Circuit, they declined to appeal the court’s Anderson-Burdick holding. The federal district court in Oklahoma, ruling in DCCC v. Ziriax and denying plaintiffs’ motion for injunctive relief, stated that paying for postage is a “light” burden on voters and that the “state’s fiscal interests are sufficient to justify its not allocating funds to prepay for postage for absentee ballots.” Similarly, in Alliance for Retired Americans, a superior court in Maine denied a preliminary injunction finding that “paying for postage to return an absentee ballot by mail represents, at most, a moderate burden and, more likely, only a slight burden that is outweighed by the State’s interest.”
Finally, in addition to federal constitutional law claims, plaintiffs have brought postage requirement suits grounded in state constitutional law. For example, plaintiffs in Stringer v. North Carolina alleged that a postage requirement for mail ballots violates the Free Elections Clause of the North Carolina Constitution, which states that “[a]ll elections ought to be free.” As of mid-October, the case has not progressed significantly.
Failure to Provide Accomodations for Voters With Disabilities
Plaintiffs in some states have challenged the lack of accessibility of mail voting procedures, alleging that absentee voters with disabilities face unnecessary obstacles. Generally, these cases are brought by or on behalf of visually or manually impaired individuals who are unable to transmit, mark and/or return mail-in ballots in accordance with state procedures.
Voting by mail typically entails filling out a paper ballot by hand and placing the completed ballot in the mail. While existing mail voting processes may allow nondisabled individuals to vote secretly and independently, voters with visual or manual disabilities are likely to need assistance to read and mark their paper absentee ballots, stripping them of the privacy available to nondisabled voters. Thus, plaintiffs describe their dilemma as having to make the “unconscionable choice of either leaving their homes in order to receive in-person assistance with voting at the closest polling place—thereby facing the threat of severe illness or death [during the pandemic]—or staying home and foregoing the right to vote privately and independently (if third-party assistance is available), or the right to vote entirely (if it is not).”
These cases have largely been brought in federal court, asserting violations of Title II of the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act. Both claims center on the failure of states to offer reasonable accommodations to voters with disabilities in the provision of public services and federally funded programs. Plaintiffs assert the existence of a variety of logistically and financially feasible accommodations that would enable disabled voters to request, receive, complete and even return their absentee ballots electronically. For instance, Maryland has designed, implemented and made freely available to other states its ballot marking system that allows a disabled voter to receive and complete an online ballot. For voters who are blind or deaf-blind, electronic ballots permit the use of text-to-speech or braille translation software that obviates the need for assistance. In August, Pennsylvania implemented an online ballot tool, OmniBallot, which allows for the electronic delivery and marking of ballots via a link sent to eligible voters. Pennsylvania expanded accessibility after a state court ruled that its mail-in ballot process violated the ADA and Rehabilitation Act. After the ruling, the federal district court in a case challenging Pennsylvania’s accessibility limitations—Drenth v. Boockvar—granted defendants’ motion for summary judgment, agreeing with defendants’ argument that “because a remote ballot marking system will be in place for the November 2020 general election and all future elections, there is no longer a case or controversy for the court to resolve.” The court further granted defendants’ motion for summary judgment with respect to any claim arising from the return or submission of mailed ballots because “Plaintiffs’ complaint did not raise such a claim.”
Some plaintiffs have sought a different accommodation for blind voters: an electronic ballot delivery system that some states have created to comply with Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) obligations. Michigan, for example, voluntarily entered into a consent decree to make its UOCAVA PDF ballots available to blind voters for the state’s May primary election. Although Michigan does not currently permit the electronic transmission of completed ballots, voters with disabilities benefit from the increased technological accessibility to electronic ballots.
In recent months, voters have brought a wave of challenges to mail-in ballot submission deadlines and restrictions that they believe infringe on the public’s right to vote. Plaintiffs have, thus far, seen largely negative results. Even where plaintiffs have won preliminary injunctions at the lower court level, the appellate courts—in both state and federal contexts—have typically reversed rulings that would have extended ballot deadlines and relaxed limitations on voter assistance.
It remains to be seen whether additional rulings on vote-by-mail cases will be issued and implemented before November. As the coronavirus pandemic rages on, vote-by-mail will remain a crucial method of electoral participation, and voters are likely to continue to challenge state rules that they view as burdening their right to vote.