Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots

This post is the second of a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare’s collaboration with the Stanford-MIT Healthy Elections Project.

As the coronavirus pandemic has wrought unprecedented change on the U.S. election system in general and on mail voting in particular, voters and advocates have challenged nearly every aspect of the vote-by-mail process. This post surveys litigation brought since March 2020, challenging vote-by-mail ballot submission rules and procedures that voting rights advocates argue burden the right to vote.

Specifically, this post discusses four types of legal battles playing out across the country aimed at removing barriers for voters who cast their ballots by mail. The lawsuits challenge Election Day ballot receipt deadlines for mail-in ballots, the requirement that ballots be returned in a “secrecy sleeve,” the cost of postage required to mail ballots, and the lack of accommodations for voters with disabilities who seek to send ballots by mail. The claims are largely constitutional, but plaintiffs have also employed statutory arguments. Plaintiffs have had little success on ballot postage and voter assistance claims, as well as in Pennsylvania’s highly publicized secrecy sleeve litigation, but have seen mixed results in Election Day receipt deadline and accessibility challenges.

Ballot Receipt Deadlines

A central category of vote-by-mail litigation concerns ballot receipt deadlines. Some states, such as Florida, Oklahoma, Georgia, Maine and Texas, mandate that mail ballots be received by election officials no later than Election Day in order to be counted. Other states require that mail ballots be postmarked no later than Election Day and received by election officials within some specified number of days after, typically two to seven days. In practice, Election Day ballot receipt deadlines result in tens of thousands of rejected ballots. In the 2020 primaries, more than 50,000 ballots were rejected for arriving late, including more than 20,000 in Florida alone. According to data from the 2018 and 2016 Election Administration and Voting Survey, late receipt is the number one cause of rejected mail ballots.

Plaintiffs have brought four main types of federal law challenges to Election Day mail ballot deadlines, three under the U.S. Constitution and one under the Voting Rights Act. The constitutional claims are that Election Day deadlines constitute an undue burden on the right to vote under the Anderson-Burdick test, violate the Fourteenth Amendment by denying procedural due process and violate the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs initially saw some success on the constitutional claims, with district courts granting plaintiffs’ requests for preliminary injunctions in Georgia and Wisconsin. However, appellate courts subsequently stayed these injunctions. As shown in the discussion of DNC v. Wisconsin State Legislature below, the Supreme Court has so far largely supported these appellate court stays.

The New Georgia Project case, filed in May, illustrates the undue burden and procedural due process arguments in operation. For their undue burden claims, plaintiffs relied on what is known as the Anderson-Burdick test. Developed out of two separate U.S. Supreme Court rulings, the test calls for balancing the burden imposed on the electorate by a voting regulation against the state’s interests in relying on that regulation. Plaintiffs argued that Georgia’s requirement that all mail-in ballots be received on or before Election Day posed a severe burden on the right to vote by requiring voters to learn the deadline, receive their ballots with enough time to complete and return them, and guess how many days it would take their ballots to reach election officials through the mail service. Plaintiffs further argued that even those voters who meet the deadline suffer a burden on their right to vote because they are deprived of the ability to consider their choice of candidate until Election Day due to the requirement that their ballot be in the mail soon enough to reach election officials by the Election Day ballot receipt deadline.

In addition, plaintiffs argued that Georgia’s Election Day ballot receipt deadline violates the Due Process Clause under the Mathews test. The Mathews test calls for balancing an individual’s interest in not being deprived of a right without certain procedural protections against the government’s interest. Plaintiffs argued that Georgia’s failure to count ballots received after Election Day and its requirement that mail voters cast their votes early deprived the voters of their protected interests “to vote and have that vote count” and to “cast a meaningful and informed vote,” since they would have “incomplete information” when they had to mail it. Plaintiffs also argued that additional or substitute procedural safeguards were available by counting mail-in votes Become a supporter of IT Security News and help us remove the ads.