absentee voting

Missouri Restrictions on Registration & Absentee Voting Outreach Efforts May Violate State Free Speech Protection

Election Law Society · March 15, 2023 ·

By Gray Whitsett

This summer, Missouri state legislators approved wide-ranging legislation that imposes new requirements on registering to vote and casting a ballot, alters presidential primaries, and expands absentee voting ahead of Election Day. The new law, popularly referred to as HB 1878, was passed in the wake of the 2020 election to address unsubstantiated claims of election fraud. As with many overhauls to state election codes, HB 1878 has been the subject of significant criticism, namely for provisions that heighten voter ID requirements and limit civic engagement organizations from encouraging and assisting with voter registration. Each of these components is being challenged in state court.

The complaint against restrictions on voter registration activity presents an interesting challenge under the Missouri Constitution.

In League of Women Voters of Missouri v. Missouri, the plaintiffs, which include the Missouri NAACP, have challenged four HB 1878 requirements affecting nonpartisan advocacy groups that engage in voter registration activity. The four provisions:

Prohibit individuals from being paid or compensated “for soliciting voter registration applications”;
Require individuals, regardless of compensation, to register with the state as “voter registration solicitors” if they solicit more than 10 registration applications;
Require such registration solicitors to be registered Missouri voters; and
Prohibit individuals and organizations from soliciting voters to complete absentee ballot applications.

The plaintiffs allege these provisions violate protections of free speech, free association, and due process of law guaranteed under the state constitution. Primarily, they claim that by targeting dissemination of information about and advocacy for voter registration, the state regulated speech based on its content, and because this constitutes political speech, the state infringed on “core protected expression.” This infringement is exacerbated by the unclear definitions of “compensation” and “solicitation” used in the statute, which they allege fail to provide fair notice to the public of what conduct would violate the law.

They further claim the law’s ambiguity creates severe administrative burdens and jeopardizes their “organizational mission[s].” Both organizations conduct significant voter registration activity throughout the state by employing a small number of salaried administrative staff and recruiting a large volunteer force. These volunteers are typically reimbursed for gas mileage and supplies, treated to food and snacks, and given organizationally branded materials like T-shirts, pencils, and clipboards to keep. In their suit, the League of Women Voters and the NAACP purport that the statute’s language of “compensation” may encompass these reimbursements and gifts, exposing all their volunteers to liability or depriving the organizations of basic volunteer recruitment incentives.

Perhaps more consequentially, the vagueness of “solicitation” leaves the organizations’ voter registration and absentee voting outreach programs in uncertainty. The plaintiffs contend it is unclear what constitutes a solicitation to register to vote or to vote absentee. While some interactions involve directly asking voters to register or vote absentee, the majority of outreach involves conventional voter registration drives where the public approaches a table or booth, asks a few basic questions, and completes a registration application. During the course of this interaction, volunteers often end up informing voters that they may be eligible to vote absentee based on what the voter says to them. The plaintiffs fear that solicitation, broadly defined, could ensnare all of these exchanges, which would require all volunteers to have to register with the state as “voter registration solicitors” and further expose volunteers to criminal liability.

The plaintiffs argue the requirement that solicitors be registered Missouri voters creates additional administrative burdens. Generally, it would require voter outreach groups to conduct a screening process for volunteers and prevent former felons, noncitizens, and anyone under 18 from being able to participate. It also would impede volunteers who may travel across state lines to support registration efforts, which may impact border cities like St. Louis and Kansas City. The plaintiffs claim these limits go to the heart of their organizations’ missions of involving the whole community in their advocacy and create logistical challenges that seem tailored to hampering their organizations’ functioning.

Regardless of the impacts of HB 1878, the plaintiffs’ case is striking because they are bringing claims under the state constitution’s voting rights guarantee, which the Missouri Supreme Court has previously said is “more expansive and concrete” than federal protections. Broadly speaking, the litigants’ hope that the combined rights of free speech and voting contained in the state constitution will render the law unconstitutional. While this approach will be necessarily limited to Missouri, it may reflect the broader call for voting rights groups to adopt a state-based approach to securing protections under the various voting provisions in state constitutions.

As the federal judiciary continues its relative disinterest in strengthening voting rights nationally, spectators are likely to see increased litigation at the state level. League of Women Voters may become one of the first of many such state battles, and a victory for the plaintiffs in a state dominated by election-skeptics may demonstrate how this strategy can bear fruit.

Mail-In Voting Survives in Pennsylvania

Election Law Society · March 3, 2023 ·

By William & Mary Law Student Contributor

Voting right advocates secured a major victory in Pennsylvania this summer. The state Supreme Court upheld key provisions of Act 77, which provides all qualified voters the right to vote by mail.

In order to vote by mail prior to Act 77’s 2019 enactment, Pennsylvania election law required voters to establish their absentee status (or excuse) by asserting they lived outside their respective municipality or were unable to vote at the polls due to illness or physical disability. Outside of those “excuses”, voters had to cast their ballots in person in order to participate. This, of course, limited the pool of eligible mail-in (absentee) voters. Act 77’s expansion of mail-in voting from being exclusive to absentee voters to all qualified voters represented an enormous expansion of ballot access.

Act 77, importantly, earned considerable bipartisan support. Both state-house Republicans and Democrats broadly endorsed the bill. Despite this, in the lead up, and in the aftermath of the 2020 election, former President Trump and Pennsylvania Republican lawmakers severely criticized the law and argued that it was unconstitutional.

Since the November 2020 election, both federal and state elected Republicans have sought to strike Act 77’s no excuse mail-in voting as unconstitutional. For instance, immediately after the 2020 election, Rep. Mike Kelly (R-PA) challenged the constitutionality of Act 77 and requested that the court throw out non-absentee mail-in ballots. The Pennsylvania Supreme Court dismissed the case on procedural error. In its ruling, the Court stated: “Petitioners sought to invalidate the ballots of the millions of Pennsylvania voters who utilized the mail-in voting procedures. … Alternatively, Petitioners advocated the extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election and instead “direct the General Assembly to choose Pennsylvania’s electors.” The Court had to revisit the constitutionality of Act 77 in its recent decision, and the subject of this post, McLinko v. Department of State.

McLinko, a member of the Bradford County Board of Elections, challenged the constitutionality of the Act 77, just as Rep. Mike Kelly did. Relying on past state Supreme Court precedent, McLinko argued that the Pennsylvania Supreme Court should strike down the law because the constitution states that qualified voters must establish residency sixty days before an election “in the election district where he or she shall ‘offer to vote’.” McLinko argued that the term “offer to vote” should continue to be understood as casting one’s ballot in person. Although Mclinko acknowledged clearly defined exceptions to in-person voting as guaranteed in the state constitution (as in absentee voting)[NK4] , he contended that the state legislature exceeded its authority by granting qualified voters, other than absentee voters, the right to “offer their vote” by mail, instead of in-person.

Weeks after McLinko brought suit, Pennsylvania state Rep. Bonner and thirteen other members also challenged the law on the same grounds. Pennsylvania courts consolidated these actions, as they all argued that the state legislature exceeded their scope of authority. And in January of 2022, Republican lawmakers won the initial round. The lower court concluded that the phrase “offer to vote” required voters to cast their ballot in person unless they could establish their absentee status. The state Supreme court rejected this argument, however.

The Court concluded that the phrase “offer to vote” does not require in person participation. Instead, the Court stated the phrase “where he or she shall offer to vote” is a descriptive clause that modifies the object of the prepositional phrase “in the election district.” It does no more than identify the district in which the elector is eligible to vote, which is the interpretation supported by the recorded history. Rejecting McLinko’s argument, the Court found that the legislature had authorization to expand mail-in voting pursuant to section four of the constitution, which permits the assembly to establish “other methods” for elections.

As the Dissent declared, this monumental decision overturned 160 years of court precedent that required in-person voting without “requisite special justification.”

Despite an early victory for Republican challengers, this decision represents a profound victory for voting right activists in Pennsylvania and cements the government’s ability to expand mail-in voting access.

A Bipartisan Effort to Change Election Law in South Carolina

Election Law Society · January 20, 2023 ·

By Susanna Clark

This past May, the governor of South Carolina signed a new bill into law that made changes to early voting, both in-person and absentee, and election crimes. The bill was a compromise between Republicans and Democrats. After some back and forth between the House and Senate and the two parties, the bill passed unanimously. It should be noted that both the South Carolina House and Senate are controlled by Republicans by a significant margin, 80-43 and 30-16, respectively, so moderate Republicans may have been standing with Democrats in enacting a less restrictive law—effectively forcing a bipartisan effort. Either way, when compared to other Republican-controlled states, this law appears to be much less restrictive.

Lawmakers have stated that the goal of the bill was to increase election integrity in the state. House Speaker Jay Lucas said the bill would “make it easier to vote and harder to cheat in South Carolina.” The bill was signed into law less than a month before the primary election on June 14, and due to the new early-voting provisions, voters were able to cast their ballots just two weeks after the bill passed. It is unclear whether this created confusion for voters or election officials, since the bill was passed so close to an election; the lack of news reports related to voter confusion caused by the bill suggest that it was not likely an issue. Confusion can likely be avoided by making the new provisions widely available to the public, and ensuring that election officials are properly briefed on the new legislation.

One of the major changes is that an in-person two-week early voting period replaces an in-person absentee voting, which is now done by mail. This means that there is an in-person voting period prior to Election Day and absentee voting by mail for those who cannot vote during the available time. This would operate like Election Day voting–voters can only vote in their respective counties and must bring a form of photo identification This ID requirement dates back to 2013. The hours and locations differ slightly, based on whether it is for a general, primary, or runoff election. Absentee voting is still available, but it is now done through the mail. Requested ballots will be received by mail, but completed ballots can be dropped off in-person to a county election office or mailed in. Voters must meet at least one of the requirements listed in order to receive an absentee ballot and must request an absentee ballot. They are not automatically sent to voters who meet one of the requirements unless they are active military personnel, are disabled, or are over 65. Voters also must be absent from their residence for the entire 12-day early voting period in order to obtain an absentee ballot. The bill also bans ballot drop boxes, which had been proposed in 2020 as a response to the pandemic, but never implemented.

The early voting measures intend to make it easier to vote, but there is also a significant provision intended to enhance election integrity. The bill effectively increases five election law violations to felonies. Punishments include a fine of up to $5,000 and up to five years in prison, which are increased from the punishments before this new law. Some of these violations include fraudulently voting, aiding in fraudulent voting, and requesting or returning more than five absentee ballots in addition to your own. While those convicted of a misdemeanor cannot vote while incarcerated, this measure is significant because those convicted of felonies in South Carolina cannot vote while incarcerated, on probation, or on parole. These punishments do not necessarily make it more difficult to cheat, but they likely deter people from cheating and effectively decrease rates of fraud. Based on an assessment done by Bloomberg News, which takes into account the new law, South Carolina does not score particularly well in the “ease of voting” category, but it does score well in the “ballot security” category, which is the major goal of the bill.

Overall, South Carolina’s new law does not appear overly restrictive, but it definitely is part of a recent trend by states to amend their voting laws in response to the 2020 election, whether by making voting easier, or more difficult, usually depending on which political party is in control. So far, there have not been any legal challenges to the new law, but there has been criticism that it unnecessarily restricts access to voting.

As Pandemic Voting Laws Lapse, Connecticut Broadens Absentee Voting Laws – But Not Too Much

Election Law Society · January 16, 2023 ·

By Jana Jedrych

When urgency about the spread of Covid-19 began to pick up speed in the early months of 2020, many states scrambled to determine what effect the pandemic would have on voter turnout, which is depressingly low in America at the best of times. Many states made temporary changes to their election laws to allow a drastic expansion in the number of absentee voters in 2020 and 2021, including Connecticut, where—despite usually having some of the most restrictive absentee voting laws—all registered voters had the option to vote by absentee ballot.

But, as with many Covid-caused restrictions that loosened or lifted in 2022, Connecticut’s absentee voting qualifications are returning to a state more similar to their pre-2020 requirements, with some changes indicative of the ongoing considerations of Covid-19. Both restrictions and allowances have been made to absentee voters in Connecticut—possible excuses for absentee voting have been expanded, but provisions that would ensure more effective exercise of absentee voting power have been rejected.

Governor Ned Lamont signed CT H 5262 on April 8th, 2022. The bill expands the excuses a voter can employ to be eligible for absentee voting in a way that reflects the current state of election law post-2020’s pandemic voting challenges. Previously, absentee voting because of sickness was only allowed if the voter applying for the absentee designation was ill. This bill allows for absentee voting in the event of the broader definition of “sickness,” which includes taking care of other sick individuals. Exposure to a disease, even if the individual is not currently sick, also qualifies as “sickness” under this bill. Similarly, the bill also expands the ability of voters to qualify as absentee on the grounds of a disability. Before, only those who personally had a disability were able to vote absentee on the grounds of disability, but in this bill the definition of “disability” as an excuse has been expanded to include being the caregiver of a disabled person, frailty from a medical condition, and limited mobility from old age.

However, CT H 5262 and another recently-passed Connecticut election law bill, CT S 470, included components that limited the eligibility of Connecticut voters to vote absentee. CT H 5262 expands the requirement for unavailability on Election Day; instead of only being unavailable during voting hours on Election Day, voters must now be unavailable for the entirety of Election Day.

CT S 470 was signed into effect on May 10th, 2022 and allowed for the disclosure of unique voter identification numbers, removing them from the list of confidential voter registration information that cannot be disclosed. But the bill previously contained provisions intended to ensure the efficacy of absentee voters’ ballots, and those provisions were amended out of the version of the bill signed by the governor. In an earlier form, the bill outlined procedures that would require local election committees to notify a voter if his absentee ballot had been rejected and educate him on his right to vote in person. The current law does not speak to whether or not a voter has to be notified if his absentee ballot is rejected. The earlier version of the bill also included a provision requiring local election officials to count ballots throughout Election Day instead of at a single time on Election Day, which is what the current law provides for.

Connecticut’s current changes to the requirements for absentee ballots are an interesting look at how election law might be irrevocably changed by the pandemic. In many ways, it’s back to business as usual—the state is not eager to discontinue being one of 17 states that requires an excuse to vote absentee. But broadened definitions of sickness and disability in some ways reflect how attitudes towards sickness have changed as a result of Covid-19. In any case, it could be argued that the usefulness of allowing individuals to vote absentee is dampened when the state refuses to put practices in place to ensure that all absentee voters’ votes count. Not requiring that voters be informed when their absentee ballot is rejected and not requiring that absentee ballots be counted the whole of Election Day means that there are voters who still will not have their voices heard, despite loosened restrictions on who is able to vote absentee.

Virginia Passes State-Level Voting Rights Measure Mirroring Original Federal 1965 Voting Rights Act

Election Law Society · February 2, 2022 ·

By: Sarah Fisher

In March 2021, Virginia—a state historically marked by racially discriminatory practices in voting—became the first state formerly covered by the landmark federal 1965 Voting Rights Act to adopt state-level voting rights legislation modeled off of the Civil Rights Era measure.

Under the 1965 Act, certain cities, counties, and states with a history of race-based discrimination in voting were required to seek approval (called “preclearance”) from the United States Attorney General before making any changes to their election laws, regulations, or practices. The group of states and municipalities required to seek preclearance was determined by a formula that considered the jurisdiction’s use of certain discriminatory voting practices (such as poll taxes) and the jurisdiction’s voter registration and participation rates as of 1968.