absentee voting

A Bipartisan Effort to Change Election Law in South Carolina

Election Law Society · January 20, 2023 · Leave a Comment

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.

Voting During and After Incarceration: Past, Present, and Future in New York

Election Law Society · December 8, 2021 ·

By: Stephanie Perry

Recent criminal justice reforms have eased access to the ballot for tens of thousands of New Yorkers with criminal records post-release, but perennial state Senate and Assembly bills to stop the disenfranchisement of people with felony convictions in the first place remain stuck in state Election Law Committee purgatory. So, uninterrupted enfranchisement throughout a felony sentence is currently impossible.

Jailhouse voting may sound unexpected, but a Supreme Court decision protecting the right to the ballot for qualified, incarcerated voters arose from a case originating in upstate New York. In 1972, a group of detainees at the Monroe County Jail in Rochester brought a state case that ultimately resulted in the 1974 decision, O’Brien v. Skinner, that affirms the right of pretrial detainees and others in jail who are not otherwise disqualified from voting to access the ballot. At that time (and today), New York did not eliminate the voting eligibility of people convicted of misdemeanors. Of course, people serving short sentences and those awaiting trial in jail could not easily appear at their polling places to vote.

Maryland: Re-enfranchisement and Absentee Voting Changes

Election Law Society · December 3, 2021 ·

By: Kelsey Nickerson

Recently, a surge of vote restoration initiatives has gained ground throughout the United States. The primary right addressed—restoring voting rights to those who have completed an incarceration for a felony conviction—is now at least partially granted in every state but two, with the vast majority of states re-enfranchising these citizens thanks to community advocacy. However, in some states, re-enfranchisement has been hampered by a spate of litigation and counter-legislation attempting to stem the tide of reform, complicating the process of restoration in multiple states. As the administration of these rights churn through state legislatures, the constitutionality of these contestations to incarcerated people’s voting rights will inevitably need to be addressed.