States have difficult choices to make this year regarding the administration of elections while fighting COVID-19 that require a delicate balance. On one hand is the right to vote, which is fundamental. On the other hand is public health, which traditionally falls within states’ and localities’ powers to regulate. To balance these considerations, some states are allowing people to vote by mail in the 2020 primary and general elections. Ohio, for example, converted its primary election to be mail-in only. Iowa has done similarly and is mailing every registered voter in the state an absentee ballot request form. Governor Andy Beshear in Kentucky, on April 24, 2020, issued an executive order expanding mail-in voting and directing the secretary of state to create an online portal for Kentucky residents to request a mail-in ballot for the June 23, 2020 primary election.
Implementing all mail-in voting has raised certain legal issues because many states’ laws require voters to provide a reason they cannot vote in person when they request an absentee ballot. To avoid this, some states have decided to creatively interpret already-existing laws. For example, New Hampshire’s secretary of state and attorney general issued a memorandum stating that voters who fear contracting the virus will be considered “temporarily disabled,” thus qualifying them to cast an absentee ballot under New Hampshire law. Other states have simply changed their laws. Virginia recently amended its absentee voting law to become a “no-excuse” state in which voters do not need a specific reason to request an absentee ballot. After this series of changes, 34 states and the District of Columbia are “no-excuse” states.
Beyond the question of how to implement mail in voting during a pandemic, a deeper question arises: how it works in practice. One state, Oregon, is a case study in voting by mail. In 1995, Oregon’s legislature passed a vote-by-mail bill which its governor vetoed. However, when then-Senator Bob Packwood resigned, Oregon had to quickly conduct a special election to replace him. Oregon conducted the December 1995 primary and January 1996 general election by mail-in voting. In 1998, voters approved a measure to convert all elections in Oregon to mail-in voting.
To combat fraud, voters in Oregon must update their voting registration to include their current address, as ballots will not be forwarded if a voter moves. They must put their completed ballots in a security envelope and sign the envelope. Upon arrival at the board of elections, voters’ signatures are checked against signatures they used to register. If the signatures do not match up, the board of elections will contact voters to correct the error so ballots may be accepted. Of the more than 100 million ballots Oregon has mailed to voters since 2000 only a dozen or so cases of fraud have been proven. Other states that have implemented mail-in voting have seen similar results. Washington’s last absentee ballot fraud conviction occurred before the state converted to mail-in voting in 2010. Colorado had one conviction in 2012 and one in 2017, before and after implementation of mail-in voting.
Mail-in voting will affect different groups of voters in different ways. For example, senior citizens, people with disabilities, and rural voters will have easier access to voting. People experiencing homelessness may be negatively affected because many list a shelter as their address, and receiving mail at a temporary residence could prove difficult. Another group that may be adversely affected is voters with literacy challenges. To address these issues and minimize and eliminate adverse effects on minority and vulnerable populations, states should collaborate with stakeholders in those communities to develop strategies and solutions that work for them.
