Virus Spurs Proposal Requiring States to Accept Mail-in Ballots

Key Democrats on Capitol Hill are pushing to make mail-in ballots available to all Americans in response to the coronavirus pandemic, which they say poses a health risk to voting in person.

Legislation proposed by Sens. Amy Klobuchar (D-Minn.) and Ron Wyden (D-Ore.) would require states to allow all voters to vote by mail, with no excuse needed. The measure would help states pay for ballots, postage and equipment needed to set up emergency vote-by-mail. House Democrats also are considering action, said a spokesman for Rep. Zoe Lofgren(D-Calif.), chairwoman of the Committee on House Administration, which oversees election laws.

“Without federal action, vulnerable Americans are going to have to choose between casting a ballot and protecting their health,” Wyden said in announcing the bill.

They’ll have to win over Republicans who say they are looking at ways to help state and local elections officials deal with the pandemic, but don’t want to impose new federal requirements.

“Imposing additional constraints on states from the federal government is the opposite of what we should be doing right now,” Rep. Rodney Davis (Ill.), ranking Republican on the House Administration Committee, said in an email. “We should not be pushing through unnecessary policies in a time of emergency.”

All states currently allow absentee ballots, but 21 states require voters to provide an excuse for absentee voting, such as a disability or travel, according to the nonprofit Vote.org.

Encouraging more voting by mail could lead to higher printing, postage and equipment costs and other problems for state and local voting officials, according to the National Conference of State Legislatures. Other possible problems include spotty mail delivery in certain areas, increased opportunities for coercion or fraud, erosion of the traditional civic experience of voting in person with other members of a community, and delays in counting votes after the election.

Wyden, the top Democrat on the Senate Finance Committee, has long pushed to expand vote-by-mail nationwide to improve accessibility. His state conducts all elections by mail, and Wyden was the first senator elected in an all-mail election in 1996.

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Sen. Ron Wyden (D-Ore.) is co-sponsoring legislation to require states to give mail-in ballots to anyone who asks.

Postponed Primaries

The Senate bill was introduced shortly before the scheduled March 17 primaries in four states, which officials initially said would go ahead despite concerns about the coronavirus that have disrupted daily life across the country. Polls didn’t open in Ohio after Gov. Mike DeWine (R) and health officials called for voting to be postponed.

Election officials from Florida, Illinois, Arizona and Ohio had released a joint statement earlier saying their primaries would be safer than other mass gatherings, like concerts or sporting events, because polling locations see people from a nearby community coming into and out of a building for a short duration.

Georgia, Kentucky,Louisiana, and Maryland already have said they would delay presidential primaries originally scheduled in the coming weeks.

Klobuchar said officials in many states have expressed concern about how the public health emergency will affect upcoming elections.

“We must take critical steps to ensure that states have the resources they need to implement early in-person voting and no-excuse absentee vote-by-mail programs,” said Klobuchar, who is the top Democrat on the Senate Rules and Administration Committee, which considers election law legislation.

Congress would have to act soon to have new provisions in place for the November general election. Coronavirus legislation considered so far has focused on virus testing and other health care or economic issues raised by the pandemic, rather than election issues.

New Federal Ballots

Voting rights advocates expressed concern that polling place changes, lack of poll workers and other adjustments in response to the pandemic could interfere with voting, especially in minority communities that have faced voter suppression efforts. Kristin Clarke, head of the Lawyers Committee for Civil Rights Under Law, said it was “critical that officials provide full and fair notice to voters in all communities regarding any changes to the electoral process,” so that changes aren’t used to disenfranchise voters.

The Senate bill would address the disparity among the states in rules on absentee voting. It would require the U.S. Election Assistance Commission to create a new federal write-in absentee ballot that could be printed and used by all American voters in certain categories. Such ballots could be used by voters who request but don’t receive state absentee ballots, voters affected by natural disasters or other emergencies, or voters who are hospitalized or absent due to work as an emergency responder or volunteer dealing with a disaster.

Other provisions call for states to provide ballot envelopes with prepaid postage and offer online absentee ballot application and use bar codes allowing voters to track ballots.

Absentee ballots would have to be counted if postmarked or signed before the close of the polls on Election Day and received on or before the day on which final vote totals are required by law to be submitted to the state for an official canvass of the election. This requirement was supported by Democratic election lawyer Marc Elias, who warned in a Washington Post op-ed piece that post offices are likely to see in this year’s election “a surge of last-minute mail-in ballots” that will take time to count.

The Election Assistance Commission would be authorized to receive an additional $2 million to help states implement the proposed new law’s requirements, while states would get “necessary sums to reimburse states for the cost of implementing the Act, such as providing prepaid postage and purchasing additional ballot scanners.”

The commission already has told state and local voting officials that they can dip into the $805 million in recently approved federal grants intended for election security measures to pay for disinfecting wipes, masks and other cleaning supplies in response to the pandemic. The EAC said it considers these allowable costs to protect the health and safety of poll workers, staff and voters during federal elections. The commission also launched a page dedicated to information on coronavirus (Covid-19), contingency planning, and other online resources for election officials.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bgov.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Bennett Roth at broth@bgov.com