Increasingly, we are seeing calls for states to adopt no-excuse absentee and vote by mail. This is a very important step in ensuring the right to vote, particularly in the wake of the COVID-19 pandemic. However, as with any method of voting, there are safeguards that are necessary to prevent voter disenfranchisement — particularly among young voters and voters of color. Yesterday, I wrote an op-ed in the Washington Post about one of those safeguards—ballot collection deadlines. Since then, I have received many questions about exactly what other safeguards are necessary.
In my view, here are the four requirements that, at a minimum, states should implement to ensure that eligible voters may fully participate in the election this November:
1. Postage must be free or prepaid by the government.
No voter should have to pay to mail their ballot, period. Postage should either be prepaid, or the postal service should agree to deliver ballots to the appropriate election authorities without a stamp.
2. Ballots postmarked on or before Election Day must count.
Many states reject all ballots received after Election Day, even if postmarked on or before Election Day. This is simply wrong and unfair to voters who have done everything right but have their ballots thrown out because of delays with the postal service. We saw a huge spike in these rejections in Florida’s 2018 election — in which both the Governor’s race and the race for U.S. Senate were decided by a fraction of a percentage point — due to a mail facility shutdown. And, we know from experience that these laws have a greater impact on minority voters. As I recently wrote, “In Arizona’s Maricopa County, for example, the Election Day deadline is four times more likely to disenfranchise Hispanic voters than white voters, and 5.5 times more likely to disenfranchise Native American voters than white voters. In Arizona’s Santa Cruz County, where 83 percent of the population is Hispanic, ballots are about six times more likely to be rejected than ballots from Maricopa.”
3. Signature matching laws need to be reformed to protect voters.
Increased vote by mail will dramatically increase the number of ballots with signature issues. Absentee ballots with questionable signatures should be reviewed by three election officials. Only if all three find beyond a reasonable doubt that a signature does not match should it be set aside. Then, the voter should be notified by a combination of mail, phone, email, and text and be given 10 days to confirm that it is their lawful ballot. In 2018, 68,000 eligible voters nationwide had their mail ballots discarded because elections officials, often with no training, and with few to any safeguards to guard against a false “mis-match,” concluded that the voter’s signature on the ballot return envelope did not match the voter’s signature on file. Another 56,000 voters had their votes discarded because they simply forgot to sign the ballot return envelope. Many of these voters were never informed of the rejection or given an opportunity to dispute or cure it. While studies have consistently shown that voter fraud — including absentee ballot fraud — is extremely rare these laws disenfranchise completely lawful voters and discard completely valid votes. We have successfully sued to reform the signature matching laws in Florida, Georgia, and Iowa. We are currently suing Michigan over its signature matching law that has no standards or mandatory notification for the voters.
4. Community organizations should be permitted to help collect and deliver voted, sealed ballots.
In many states, community organizations play a vital role in collecting and delivering voted, sealed mail ballot for counting. Voters without easy access to secure and reliable outgoing mail, or who need extra help to get their ballots delivered, rely on this practice. Unfortunately, in an effort to suppress the vote, Republicans have supported laws to ban this important tool to ensure voting. We successfully sued Arizona over their law that criminalized ballot collection – the court found that it was passed to intentionally disenfranchise minority voters. We, along with a coalition of Native American Tribes in Montana are fighting a similar law there. We are also currently suing Minnesota over a similar law.
Vote by mail is always good policy, but right now it is a critical part of democracy. As we implement it, however, we must ensure that all eligible citizens are given a fair opportunity to cast their ballot and – equally importantly – have that ballot count. These four safeguards will make sure that happens.