Lawsuits Claim States Without Prepaid Ballots Impose ‘Poll Tax’

Voting rights groups and Democrats are suing to try to force states to pay the postage for mail-in ballots, calling the mailing cost an unconstitutional “poll tax.”

A lawsuit recently helped push South Carolina to temporarily cover the postage for the Nov. 3 general election, adding to 18 states that already always pay the cost for all elections. Georgia and Florida also are facing lawsuits over the issue. The cost of mailing absentee ballot applications is being litigated in Massachusetts.

Paying to mail back ballots is one of several voting-access questions being debated because the coronavirus pandemic has made it potentially risky to vote in person.

The American Civil Liberties Union, Black Voters Matter Fund, Priorities USA, and other groups argue that requiring voters to buy a stamp to request absentee ballots or to submit them is an illegal restriction and unfairly burdensome.

“Georgia election officials require voters to use their own postage when submitting mail-in absentee ballots and applications. Postage costs money. Thus, defendants have imposed a poll tax in violation of the Constitution,” the ACLU says in one of the lawsuits.

Similar claims were made in other lawsuits filed against states, citing violations of the 24th Amendment, which prohibits poll taxes.

“For many voters, voting by mail will be the only realistic option to protect their health and the health of their loved ones during the ongoing pandemic,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project. “With COVID-19 cases on the rise throughout the country, we should be doing everything we can to reduce barriers to voting by mail.”

Currently, all military personnel may return ballots postage paid. Eighteen states also provide return postage for all mail-in ballots, according to the National Conference of State Legislatures.

Prepaid Requirements

Maryland and Virginia adopted prepaid ballot requirements earlier this year. The issue also was raised by Democrats in other state Legislatures, including in North Carolina and Ohio.

South Carolina’s State Elections Commission decided in mid-May to use federal virus relief funds to temporarily pay for absentee ballots as the state faced a lawsuit filed by the state Democratic Party and related Democratic groups and individuals.

The concession was made even though the state argued in court filings that people didn’t have to pay to vote because they could vote in person, drop off their filled-out mail ballots at their polling places, or authorize someone to drop the ballots off for them. The state also claims in legal filings that postage isn’t a tax, but a fee paid for a specific service.

Ensuring Voters

But the elections commission determined that “postage-paid return envelopes will help ensure that every registered voter has the opportunity to vote during the pandemic,” spokesman Chris Whitmire said.

“Large numbers of voters have shifted from voting in person to voting absentee by mail as it has become a necessity for many voters seeking to avoid large gatherings at polling places. While voting absentee by mail is a safer alternative, and an easier alternative in many ways, it does present some unique barriers,” he said.

Those include that there must be sufficient postage on the ballots and that they must arrive by a certain deadline, according to Whitmire, adding that a state paying for postage will help ensure that every ballot is counted and counties don’t have to deal with insufficient postage charges.

The cost of covering absentee ballot postage in the November election in South Carolina is estimated at between $750,000 and $1.2 million, Whitmire said.

With assistance from Alex Ebert, Adrianne Appel, and Jennifer Kay

To contact the reporter on this story: Andrew M. Ballard in Raleigh, N.C. at aballard@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com