The vote by mail fault lines that could define November's election

The fights center on expanding mail voting as states adjust to the coronavirus.

April 22, 2020, 6:15 AM

The ongoing legal wrangling over voting rights and access, an issue that has become an undercurrent of the 2020 election, foreshadows some of the expected clashes to come ahead of November’s uncertain general election.

The quarrels center on expanding mail voting as states adjust to the unprecedented coronavirus crisis, particularly in key battlegrounds that could tip the scales of the upcoming presidential contest.

In states such as Georgia, Texas, Nevada and Florida, among others, state and party leaders are seeking to change the way people vote to avoid a similar fate as Wisconsin, where a series of emergency orders and legal challenges earlier this month culminated in thousands of voters risking their health to stand in long lines for hours to vote.

Since Wisconsin's election, state health officials said Tuesday that 19 people who have either voted in-person or worked at a polling site on election day have so far tested positive for COVID-19 after April 9, two days after the spring election — underscoring the potential risks of forging ahead with an in-person voting during the height of the widespread and deadly public health crisis.

But a significant hurdle for efforts to make voting by mail far more accessible is the intensifying partisan divide over the best pathway forward, as the coronavirus increases the risks of voting in-person in states with primaries still on the calendar, and before the general election.

Will November be a 'train wreck'?

As the coronavirus upends nearly every aspect of the electoral process, at least 32 states, plus the District of Columbia, plan to use part of the federal funds they receive from the CARES Act to bolster mail voting efforts, according to state requests compiled by the Leadership Conference on Civil and Human Rights and reviewed by ABC News.

Only five states currently conduct all elections entirely by mail, according to the National Conference of State Legislatures.

An election worker handles vote-by-mail ballots coming out of a sorting machine for the presidential primary at King County Elections in Renton, Washington, March 10, 2020.
Jason Redmond/AFP via Getty Images, FILE

Voting experts suggest that these "localized fights" particularly in states with expected "tight elections" are foretelling the fights that will come in the fall, including over access to absentee ballots, which ballots should be counted, signature requirements, postmarks, etc.

The debate in Georgia, for example, over sending only active registered voters mail ballots is likely to be a fault line for litigation moving forward, according to Michael McDonald, an elections expert and political science professor at the University of Florida.

These early tests of election infrastructure are providing critical signals of the country’s ability to hold a successful general election, when turnout will be significantly greater than during the primary season, amid a potentially ongoing public health crisis.

"If we can't get through these next elections where we gave ourselves more time in a lower turnout environment, November is going to be a train wreck," McDonald said.

"If we're having catastrophic failure now, it's not going to alleviate by the time we get to an election where there's two to three times more demand on the voting," he added.

The lay of the land in Georgia and Nevada

Since the tumultuous contest in the Badger state, legal cases across the country are emerging over vote-by-mail, a popular alternative to in-person voting that has the support of more than two-thirds of registered voters for the November election, according to a new NBC News/Wall Street Journal poll.

In late March, Georgia Secretary of State Brad Raffensperger, a Republican, announced he would mail absentee ballot request forms to all of Georgia’s 6.9 million active registered voters ahead of their presidential primary.

The move was a bold step for the chief election official, and was followed by Georgia's House Speaker David Ralston, also a Republican, saying in an interview with a local Georgia news site, that expanded absentee voting would be "extremely devastating to Republicans and conservatives in Georgia...Every registered voter is going to get one of these...This will certainly drive up turnout."

Those comments reflected similar sentiments coming from the White House, after President Trump said mail voting "doesn’t work out well for Republicans."

Georgia Secretary of State Brad Raffensperger speaks during a news conference at Liberty Plaza in downtown Atlanta, April 6, 2020.
Alyssa Pointer/Atlanta Journal-Constitution via AP, FILE

Raffensperger, providing more insight into his thinking behind the decision, told ABC News in an interview Tuesday he wanted to ensure that the state was "putting voters first" amid the pandemic.

"We're just concerned about the transmission of COVID-19," he said. "So by putting voters first and also our poll workers, we thought the best solution would be sending out absentee ballot applications to our active voters."

While the effort will make it easier and safer for voters to cast their ballots for the upcoming May 19 primary, the return postage for the applications and ballots will not be paid for.

"We've never done that before," Raffensperger said of providing pre-paid postages for voters. "The United States Postal Service already said if someone doesn't put a stamp on it, they're going to deliver that mail anyway because they understand that it's a ballot and how important that has to do with elections."

One wrinkle, however, is that someone ultimately has to pay for the stamp, according to a 2018 report from ProPublica.

A day after the Wisconsin election, the ACLU of Georgia filed a federal lawsuit against the state, claiming that not paying for postage for absentee ballots is "tantamount to a poll tax," which is unconstitutional. The lawsuit aims to require election officials to provide pre-paid postage envelopes for voters to return absentee applications and ballots for the May election.

Nevada took a similarly drastic step as the Peach State, after Secretary of State Barbara Cegavske, also a Republican, shifted the state's upcoming July 9 election to nearly all-mail, allowing for only one single polling location in each county.

But Democrats don't believe that move went far enough.

National and state Democrats filed a legal challenge last week in the Silver State to expand voting access, including mail voting, for the state's upcoming primary - potentially setting the course for future elections as the state battles the coronavirus pandemic. Democrats are urging election officials to increase polling sites in counties across the state to prevent long lines, and suspend the state's voter assistance ban to allow more voters to seek out help in the collection and delivery of ballots.

Democrats allege that Nevada could end up becoming another Wisconsin in early June, since "the population distribution in Nevada is so heavily skewed towards two counties, Clark County and Washoe County, which is Las Vegas and Reno" that "87% of the population" will have only two polling locations, Marc Elias, the lead attorney for for Democrats' efforts, said.

The 'ground-level skirmishes' in Texas and Florida

In battleground Texas, where shifting demographics have put the state in play for Democrats for the first time in decades, the state Democratic Party filed dual lawsuits in Travis and Bexar Counties, which encompass the Austin and San Antonio areas respectively, demanding a broader system of mail-in voting for the state’s July primaries.

Last week, Democrats scored a win after a district judge in the Travis County case, which was filed shortly after Wisconsin’s election, issued an order allowing all voters in the state to request a mail ballot under the state's election code, by citing the disability excuse to vote absentee.

The ruling from Judge Tim Sulak, which is expected to face a swift appeal by state Republicans, significantly expands access to voting for the July runoff elections, as coronavirus threatens the ability of voters to exercise their right to vote.

The Lone Star state requires an excuse in order to vote absentee, such as having an illness or disability. Those over 65 can also vote-by-mail.

The ruling came the same week that Texas Attorney General Ken Paxton, a Republican, released a letter arguing that only those voters who contract COVID-19 can vote-by-mail using the illness excuse, as required by state law, but "fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature."

"Texas has had some of the more stringent requirements in the country for voting by mail. But they've never attempted to restrict vote-by-mail for people over the age of 65," Gilberto Hinojosa, chair of the Texas Democratic Party, said of state Republicans' efforts to curtail access.

Chairman Gilberto Hinojosa opens up the general session at the Texas Democratic Convention June 22, 2018, in Fort Worth, Texas.
Richard W. Rodriguez/AP, FILE

Hinojosa said that Republican fears over fraud didn’t exist before the request to expand mail voting because voters over the age of 65 are part of the GOP’s "constituency" since Texas’ older population tends to be white.

In the concurrent Bexar county case, in which Democrats are making a constitutional argument to relax vote-by-mail rules, Hinojosa said that the "effect of only allowing people over the age of 65" to mail in ballots "discriminates in this time of crisis against minorities."

Along a similar thread, a new lawsuit in Florida was filed on Tuesday from a collection of racial justice groups aimed at expanding access to the polls. The lawsuit accuses Republican Gov. Ron DeSantis and Secretary of State Laurel Lee of failing to adjust to "meet the needs" of the crisis — especially to the detriment of minorities.

"The Vote by Mail (VBM) ballots cast by Black, Hispanic, and other racial and ethnic minorities were more than twice as likely to be rejected as VBM ballots cast by white absentee mail voters in 2018, and with the increased barriers voters face in complying with these strict requirements due to the coronavirus pandemic, these disparities are likely to be aggravated," the complaint alleges.

Florida is a state with an already robust vote-by-mail operation, where nearly one-third of Florida voters choose to mail it in for recent elections.

As the legal fights continue to unfold, voting experts are certain more litigation is expected as the focus of the election increasingly falls on the mechanisms of voting.

"I think that there will most likely be a lot of litigation" around vote-by-mail, Dr. Lorraine Minnite, a political science professor at Rutgers University and author of "The Myth of Voter Fraud," told ABC News. "You're already seeing efforts to thwart all-mail balloting."

"The...ground level skirmishes over the application of the rules and fighting to get ballots counted and fighting to get ballots not counted, that's what will happen between the two parties and will go into the courts," she continued.

The battle lines over voter fraud

Shortly after Raffensperger decided to mail Georgia’s active voters absentee ballots, a move applauded by state Democrats, his next step appeared to be an overture to appease those alleging election fraud with absentee ballots.

The secretary of state announced he was creating a task force to investigate ballot fraud, saying the group would safeguard the voting process, whether it be at the ballot box or at the mailbox.

"It's always better to be prepared than not be prepared," Raffensperger said of the formation of the initiative on Tuesday.

Trump has repeatedly admonished absentee ballots — fueling Republicans’ apprehension towards adopting expanded mail voting — despite voting absentee himself in Florida.

The president has called mail ballots "corrupt" and alleged that "mail ballots are a very dangerous thing for this country, because they're cheaters," earlier this month.

Democrats called Raffensperger’s more recent announcement "state sponsored voter intimidation," arguing that voter fraud is nonexistent in the state, a stance echoed by experts, too.

"There is no widespread fraud in mail voting," Minnite said.

Election experts also argue that mail voting does not decisively give one party’s camp an edge over the other.

"It's not really clear which party benefits by putting a mail ballot request step into the voting process," said McDonald. "You look at what happened in Wisconsin, for example...there was a much lower rate of mail balloting in rural jurisdictions."

McDonald asserted that "in the past, Republicans tend to vote the mail ballots" since "the profile of mail voters in these states that have these multiple methods of voting tend to look more Republican."

"The mail voters tend to be the most Republican out of all the different options that you have for voting," McDonald said.

In a recent study from Stanford University, researchers also concluded that "vote-by-mail does not have meaningful partisan effects on election outcomes."

Despite the debate over mail voting being splintered by political tribalism, the lawsuits across the battlegrounds showcase the key tenets of the debate over voting rights this cycle ahead of a highly-anticipated national election less than seven months away - as both parties acknowledge the import of electoral rules on the outcomes of tight races.

ABC News' Quinn Scanlan and Alisa Wiersema contributed reporting.

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