The topic of mail-in and absentee ballots has become a focal point for the 2020 presidential election for several reasons. The COVID-19 outbreak has greatly increased the need for social distancing and left many uncomfortable with the process of voting in person. In some places, casting a vote can require hours of waiting in line.
The concept of voting by mail is not universally popular, however. The issue is complicated by a sharp political divide between those who view access to voting by mail as a necessity during a pandemic versus those who believe it is inappropriate or even unconstitutional. Others point to the risk of fraud that could come with mail-in voting.
Questions surrounding mail-in ballots have further muddied an already chaotic presidential election. That said, every voter needs to understand their legal rights and responsibilities when it comes to absentee ballots.
It is important to remember that every state oversees its own election laws. This is true for everything from statewide races to contests at the federal level. It should come as no surprise then that the voting laws vary dramatically from one state to another.
There are two general approaches that states take towards voting by mail. Nine states and the District of Columbia offer “universal” mail-voting, which gives every voter the right to cast a vote by mail. Under this system, every registered voter receives a ballot in the mail and can return it through the mail system or by dropbox.
More common is the absentee approach to voting by mail. This system still prioritizes voting in person and does not mail a ballot to every eligible voter. Instead, voters must request a mail-in ballot from the state and often provide a reason for their request. The difficulty of this process varies significantly from one state to another. While Rhode Island’s ballot request form allows voters not to give a reason for their choice to vote absentee, other states make things much more difficult. Missouri, for example, requires voters to have their ballot request notarized.
Despite the popularity of absentee voting, there is no inherent right to vote by mail. Of course, the right to vote in general was never mentioned in the United States Constitution. It was not until 1941 that the Supreme Court held that a right to vote in federal elections exists under the Constitution.
While the right to vote exists, the government has the power to regulate that right. States are within their power to require voter ID at the polls or bar felons from voting. The Constitution also authorizes states to place administrative limits on voting, which allows them to determine the hours and locations that voting can take place. It also empowers them to allow or prevent voting by mail.
Many state constitutions do enshrine the right to vote by mail, however. In certain states, including Washington, state law requires all elections to take place by mail. While most states do not go that far, nearly all jurisdictions allow for some form of mail-in absentee voting.
Despite the controversies surrounding voting by mail, there is little doubt the practice is popular among most of the voting population. According to a Pew Research survey from July of 2020, more than 65% of adults in the United States support the ability to vote absentee without a documented reason.
The popularity of voting by mail is also not a new phenomenon. In 2016, approximately 1 of every 4 votes in the presidential election was cast by mail, according to the Brookings Institute. This figure was even higher in 2018. In 2020, the Brookings Institute reports that close to 75% of all voters will have the option to vote by mail in the presidential election.
But the system is not without its drawbacks, particularly in times where many people are attempting to vote by mail for the first time. According to NPR, more than 550,000 mail-in ballots were rejected during the 2020 presidential primaries. This number far outpaced the number of rejected ballots in 2016 — which saw much higher voter turnout than the 2020 primary — when approximately 318,000 ballots were rejected. The primary issue with most of these ballots is that they arrive too late to be counted.
Universal vote by mail has drawn the most criticism from President Trump and right-leaning pundits. According to a number of statements made by the President, universal mail-in voting represents a substantial risk of voter fraud. While voter fraud carries steep criminal penalties, there is little evidence of anything more than sporadic attempts at fraudulent voting. Other controversial aspects of voting by mail include so-called “vote harvesting” as well as a voter’s ability to cure a defective ballot after an election.
While claims of rampant voter fraud are common, the act itself is not. This is true even in states that rely entirely on mail-in voting. In a study of the 15.5 million votes cast by mail in Oregon since the state began conducting elections entirely by mail in 1998, there are only 14 cases of attempted fraud. The most common form of fraud involves individuals attempting to vote in multiple states, as opposed to voting through the use of a stolen identity.
Convictions for voter fraud might be few and far between, but they can carry steep penalties when they do occur. Crystal Mason, a Texas woman who voted in 2016 while on supervised release following a federal conviction, was sentenced to five years in prison for casting her ballot.
The act of ballot harvesting is one of the primary factors that has created distrust in the mail-in voting among some voters. While the term might sound nefarious, the act of ballot harvesting involves a third party collecting and submitting a mail-in ballot on behalf of another voter. Many states allow this practice, and there is little evidence that it has led to widespread election fraud. This practice primarily targets voters who are homebound or live far from the nearest post office.
However, ballot harvesting is at the center of one of the largest election fraud cases in recent memory. In 2018, evidence of fraud related to the collection of absentee ballots resulted in the overturning of a congressional election.
Whether or not states can limit ballot harvesting remains an open question. While Arizona legislators made it a felony for a family member or caregiver to return another person’s ballot, the 9th Circuit Court of Appeals struck down the law. It remains to be seen if the United States Supreme Court will take up the issue.
In some states, a defective mail-in ballot does not mean a person will automatically lose their chance to be heard. Many states offer a practice known as curing defective ballots. When a ballot is defective for technical reasons — lacking a signature, for example — many states return the ballot to the voter to cure the defect.
Other states accept the vote but count it as a provisional ballot. A provisional ballot means the vote will only count if it is ultimately determined to be a valid vote. Controversy has arisen in some states where voters can cure a defective ballot after election day. The right to cure a ballot varies from one state to another. For example, a voter has five business days to correct a defective signature in Arizona. In California, a voter has two days until the election is certified to provide an in-person signature verification statement.
Another issue that has caused controversy in 2020 is whether or not the government should provide ballots with prepaid postage. While some states provide each absentee ballot with the necessary postage to return it by mail, other states do not.
On April 30, 2020, a federal court in Georgia denied an injunction that would require the state to provide postage for all absentee ballots and ballot applications. The plaintiffs in the suit argued that the requirement of offering postage serves as a poll tax. Additionally, they argued that this financial requirement placed on potential voters was an unjustifiable burden that violated both the 14th and 25th Amendments to the United States Constitution.
The court largely avoided the issue at hand, denying the motion because the relief sought was impossible. Given the proximity to the 2020 election, the court ruled that since absentee ballots had already been mailed, time constraints precluded the relief that the plaintiffs sought.
At the Marrone Law Firm, LLC, we have long defended the civil rights of our clients. If your right to vote has been violated, call us today to discuss your legal options and schedule your initial consultation.
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