Will Voters Be Able To Use COVID-19 As An “Excuse” To Get An Absentee Ballot This Fall?
We’ve been floored by the number of people — especially young people — Tweeting things today like “Everybody needs to send in for their absentee ballot now!”
Update (5/27): The Supreme Court of Texas just ruled that lack of immunity to COVID-19 is not reason enough to request an absentee ballot in that state. So sorry, you’ll have to show up in person there. President Trump promptly called the decision a “big win”. Now, people who are at demonstrably high risk of contracting Coronavirus can send in for an absentee ballot, but with Texas’ Attorney General vowing to aggressively prosecute misrepresentations of that, not sure it’s a route many people will take.
That seems to be in response to 3 things:
- Bernie Sanders dropping out. So the fall match-up is now settled, and because of that, it seems closer.
- Debacle in Wisconsin where people didn’t get absentee ballots in time to return them, and the U.S. Supreme Court refused to give them extra time, overturning what seemed like a workable compromise by a district court judge. So voters there had to show up in person during a pandemic to get counted, or not at all.
- Trump making it clear he hates voting by mail, even though he just did it himself. Which is perhaps what led to the President to reassess his view, yet confuse the situation further, saying absentee ballots are “great”, but mail-in voting is bad. (Interestingly, Florida, where he votes, no longer uses the term “absentee ballot” at all, and hasn’t for years. So what Trump cast was indeed a “Vote-by-Mail” ballot.) But in general, Trump and other Republicans no longer seem to be hiding the fact that their key to winning is doing whatever they can to block wide voting.
We covered a lot of that already in our story entitled: “No Vote For You!”
So today we want to look to the future: November 3rd, to be precise. Election Day.
Send in for your absentee ballots now? Actually, in many states you already can. Florida, for instance, lets you put in for a mail-in ballot for any election taking place in the current calendar year, and you don’t have to give a reason.
In fact, a majority of states already have what’s called no-excuse absentee voting, or mail-in voting. In fact, a few states have only mail-in voting. You couldn’t go to the voting booth and “proudly display yourself” as the President likes to say, even if you wanted to.
We guess that could change. It’s not likely to in most cases. But states still control the circumstances and mechanisms of elections, so if a bunch of legislators somewhere wanted to please the President and make non-in person voting more restrictive, they could.
But let’s assume that doesn’t happen a lot, and instead focus on the 1/3 of states or so where you still have to have a valid excuse not to show up in person at the polls on Election Day. And it’s a felony if you lie about it. In New York, for instance, if you want to get an absentee ballot, you need to swear that you’re away on election day, or you have a temporary or permanent illness or disability. And while different states have a range of different acceptable excuses, absence from the county in which you vote and illness or disability are common to all of them.
So does “illness or disability” include an active COVID-19 threat? Or trauma from COVID-19? Or social distancing that might be required to prevent you from contracting Coronavirus?
On most absentee ballot applications in states that require an excuse, you just check a box for “illness or disability”; you do not have to say precisely what the illness or disability is, although you do have to swear under penalty of law that you’re not lying.
New York Governor Andrew Cuomo, sensibly issued an Executive Order allowing COVID-19 as a reason for obtaining an absentee ballot in the upcoming June New York primary. But what if New York had a Republican-controlled legislature like Wisconsin does? Would they have challenged this in court? And in Wisconsin, we’ve now seen pretty clearly the Supreme Court wants nothing to do with creative, common-sense remedies: expect them to be really strict regardless of the current crazily upended world.
We emailed back and forth with a bunch of election law and voting experts today about whether COVID-19 might automatically qualify people for absentee ballots, and the answers we got were pretty uniform, and not altogether reassuring. Comes down to:
“Depends on the state.”
And what the particular state decides to do. What that state decides to allow. And also how inclined that state is to prepare for, manage, and process what will be an unprecedented flood of absentee votes in any case.
One political consultant we contacted elaborated:
“Where the Dems are in power and they can keep it away from a conservative federal court, they can get it. Where the GOP can either subvert that, through power in the state house or through a conservative judiciary, they’ll get what they want.”
And he concluded:
“The problem is that people are seeing this as a partisan fight instead of what it really is — life vs death.”
Because it’s more than likely, come this fall, states are going to have to do it bigger than they ever have before, and they’re going to have to get it righter than they ever have before. Otherwise, nightmare scenarios aren’t that implausible. And we’re not talking about the President’s favorite: voter fraud here. In fact, the only major voter fraud case we can remember involving mail-in ballots was perpetrated by Republicans, and resulted in a do-over.
- Long delays in getting ballots out: like in Wisconsin where voters faced the perplexing situation of hitting a deadline for postmarking a ballot they had not yet received.
- Long delays in counting, which are always fuel for allegations of fraud, even if it’s not going on, especially in narrow contests.
So while we hope most states will allow COVID-19 related “excuses”, maybe some won’t. And even then, those types of decisions — either way — will probably have to withstand court challenges before they can be fully implemented, which would potentially leave boards of elections hamstrung for extended periods of time, or forced to turn on a dime on or near or even after Election Day.
So unfortunately — as the “preview” this week in Wisconsin has shown us — a lot of whether people can turn in their votes by mail, or not, in some probably very key places, is going to be dictated by politics, and the courts, not reasonableness.