Rethinking Absentee Voting: Why No Excuse Should Be Needed

“I can’t tell you the number of people who I’ve talked to over the years who ‘meant to go to the polls,’” said Kate Pringle, an attorney representing Leadership Now, a pro-voting group in New York and Washington, D.C.

She explained that people have said to her, “I meant to go to the polls, but I got stuck at work,” or “I meant to go, but my kid got sick.”  

Pringle, who lives in New York — a state that recently had its law allowing for no-excuse mail-in voting challenged in court — said she’s not sure if her kids will be in town on Election Day.

“My boys are heading off to college. They might be home around the time of the election. They might not. They’re not sure what their schedule is going to [look like],” Pringle said.

If they needed to provide an excuse to vote by mail, like explaining that they would be out of the district on Election Day, that would be hard, Pringle said.

However, under the state’s Early Mail Voter Act — which was upheld by New York’s highest court on Aug. 20 — Pringle’s sons can vote early using a mail-in ballot without providing an excuse.

“They don’t have to worry about whether they’re actually going to be out of the district or not,” she said. “They can simply say, ‘this is the most convenient way for me to vote.’”

So, to the question of whether people should need an excuse to vote by mail? Pringle says no.

The majority of states and voters also say no

A Pew Research Center survey released in July revealed that over 60% of Americans say voters should have the option to vote early or absentee without having to document a reason for doing so.

Currently, 36 states allow people to vote by mail without providing an excuse as to why they can’t vote in person on Election Day. 

There are 14 states that require someone to provide an excuse to utilize absentee voting. The types of excuses vary but include: being out of the state or country on election day, having an illness or disability, being over 65 years old, having a work shift during all voting hours and being an election/poll worker.

The states on this list are primarily Republican-led, like Alabama and Texas, but there are also outliers, such as Connecticut, with these policies.

Connecticut voters can say yes or no in November

Connecticut’s Democratic-controlled House and Senate approved an amendment in May that would authorize the legislature to pass a law allowing for no-excuse absentee voting. If approved by voters, this would give lawmakers the green light to pass this legislation.

Under state law now, a voter can only cast an absentee ballot if they can prove they will be out of town on Election Day or if illness, physical disabilities, active service in the military, religious beliefs or duties as an election official prevent them from going to their polling place.

If the majority of voters approve the amendment in a ballot initiative this November, the state’s absentee voting policy could fundamentally change.

“As we saw during the COVID-19 pandemic, absentee voting works! It was proven to be a safe and effective way to cast your vote,” state Rep. Aimee Berger-Girvalo (D) said in a statement. 

David McGuire, ACLU of Connecticut Rise PAC chairperson, said if approved, this initiative would benefit numerous groups of people, including working parents, voters of color, people with disabilities and elderly voters. 

Also, many people who don’t have an approved excuse “don’t feel comfortable lying,” which he said no one “wants to happen” anyway. But, the current way leaves many people without an option to vote.

This isn’t the first piece of election reform that state Democrats have pushed for in recent years. 

In 2022, lawmakers put a constitutional amendment on the ballot to authorize the state legislature to pass a law to implement in-person early voting, and voters approved it. 

As a result, in June 2023, Gov. Ned Lamont (D) signed a bill into law that established early in-person voting before elections in the state beginning on Jan. 1.

“Bit by bit, Connecticut is pulling itself out of the dark ages of voting procedures and bringing us in line with a majority of other American states,” said state Sen. Mae Flexer (D), chair of the Government Administration and Elections Committee. “More voting equals better democracy, period.”

McGuire said the reason it has taken so long for Connecticut — a Democratic state — to have more voting options is the nature of the state constitution.

“Connecticut is somewhat unique in that we have a state constitution that is very, very specific,” McGuire said. “We did not have any early voting before now, and this will actually be the first general election with early voting here in Connecticut.”

He said people often assume because Connecticut has a “blue trifecta,” — Democratically controlled House and Senate and Democratic governor — that the state is progressive and has fair voting policies. However, that’s not always the case.

“In reality, there are so many laws and policies that are inequitable that do disadvantage folks who have historically been discriminated against or held back from voting,” McGuire said. 

He said that is why it’s so important this ballot initiative passes in November.

New York’s highest court said yes

On Sept. 20, 2023, New York Gov. Kathy Hochul (D) signed a package of voting rights laws, including the Early Mail Voter Act.

The New York Constitution only allows people to cast mail-in ballots if they can provide certain excuses, such as a disability, illness or absence from their county on Election Day. However, the Early Mail Voter Act creates a workaround to this that would not require constitutional change. 

Instead of implementing a true absentee voting system, the Early Mail Voter Act law allows voters to cast a mail-in ballot without an excuse only during the pre-existing, nine-day early voting period. 

Susan Lerner, executive director of Common Cause New York, explained this law is extremely important because with policies like this, “you see a large uptick in the number of people who use vote by mail, and it often results in an increased turnout, which is positive.”

She also noted that voters should have the right to choose their voting method, and if “we trust them to pick our leaders, we should trust them to determine how they want to vote.”

Pringle said in addition to the more-talked-about reasons why people can’t or don’t want to vote in person on Election Day — like unpredictable work shifts, long commutes, family obligations and difficulty with transportation — some people are actually afraid to go to the polls.

“If you’re known as a Democrat in a town that’s largely Republican, you might be nervous about standing in a long poll line. You might be nervous that you would be targeted. And we know there are concerns that political parties may target individuals based on their appearance or ethnic background,” Lerner said.

The same day that the Early Mail Voter Act was signed, national and state-level Republicans filed a lawsuit challenging the constitutionality of the legislation. They argued the New York Constitution enumerates two classes of voters who can vote using absentee ballots — those who are out of town on Election Day and those who have an illness or physical disability — and the new law applies to voters outside of those two groups. 

In February, a trial court judge rejected the GOP plaintiffs’ arguments, finding they “failed to meet their heavy burden of proving beyond a reasonable doubt that the Early Mail Voter Act is unconstitutional under the NY Constitution.”

After the plaintiffs appealed, an appellate court similarly rejected the GOP’s argument and wrote the new law “does not violate article II of the NY Constitution and was properly implemented through legislative enactment.” 

Republicans then appealed to the state’s highest court — the New York Court of Appeals — which upheld the law on Aug. 20, rejecting the GOP’s challenge.

U.S. House and Senate Democrats also support no-excuse mail-in voting

The Freedom to Vote Act — which was originally introduced by House and Senate Democrats in 2021 and was reintroduced in July 2023 — is currently one of the most talked about pieces of voting rights legislation. It would protect voting rights in many ways, including establishing no-excuse mail-in voting for all voters in federal elections.

“The Freedom to Vote Act will set basic national standards to make sure all Americans can cast their ballots in the way that works best for them, regardless of what zip code they live in,” Sen. Amy Klobuchar (D-Minn.) said in a statement. “This bill will ensure Americans can request a mail-in ballot and have access to drop boxes, have at least two weeks of early voting, and can register to vote on Election Day.” 

Both the House and Senate versions of the bill were stalled in committee shortly after they were introduced. Despite this, numerous Democrats running for office have made the passage of this bill one of their main priorities, including Texas Senate candidate Colin Allred and Maryland Senate candidate Angela Alsobrooks.

Courts across the country weigh in 

Under Indiana law, a voter must have an accepted reason to vote absentee, and being over the age of 65 is one reason. In 2020, a pro-voting group and voters challenged the law, saying it violates the Equal Protection Clause of the 14th Amendment as well as the 26th Amendment by denying or abridging the right to vote of citizens who are 18 years of age or older, on account of age.

After a federal district court delivered them a loss, the plaintiffs appealed the case to the 7th U.S. Circuit Court of Appeals, which affirmed the lower court decision that upheld Indiana’s restrictions on who can vote by mail in the state.

There was a similar lawsuit filed in 2020 in Texas. Under Texas law, individuals are only eligible to vote by mail without a qualifying excuse, such as illness, if they are 65 years or older on Election Day.

The Texas Democratic Party and voters challenged these provisions, also presenting the argument that this age-based exception violates the 26th Amendment.

After years of litigation, a district court and the 5th U.S. Circuit Court of Appeals dismissed the case, and the plaintiffs asked the U.S. Supreme Court to weigh in. In April, the justices denied their petition, leaving the vote-by-mail restrictions in place.

Also, last December, South Carolina voters challenged their state’s absentee voting rules, which are similar to Indiana and Texas, arguing that the age-based rule violates the 14th and 26th Amendments.

Litigation in this case is still ongoing in a federal district court, so these voters will have to see how the court will rule.

What happens next?

Leading up to the 2024 election, Republicans and right-wing groups across the country continue to file lawsuits, challenging states’ absentee voting laws and claiming that mail-in voting causes election fraud, including in Mississippi, Nevada, and Wisconsin. 

“We’ve seen voting access and requirements around voting become hyper-politicized, when in reality, this should be a nonpartisan issue,” McGuire said. “There is a lot of disinformation put out there.”

However, he said there is still hope to continue to push for no-excuse absentee voting across the country. It is unlikely any state’s policies will be changed before the 2024 election, but the ballot initiative, federal legislation and court cases could create positive change for future elections.

“There’s definitely been a huge enthusiasm in the question around voting and the power of voting, and people realizing that in order to be a truly free society where everyone’s rights are respected, you need to make it easy for people to vote,” McGuire said.

This story was updated on Aug. 20, 2024, at 4:50 p.m. EDT to add that the New York Court of Appeals upheld the state’s Early Mail Voter Act on Aug. 20, rejecting the GOP’s challenge.