STATEMENT OF KRISTEN CLARKE PRESIDENT AND EXECUTIVE DIRECTOR LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW U S HOUSE OF REPRESENTATIVES SELECT SUBCOMMITTEE ON THE CORONAVIRUS CRISIS HEARING ON “Ensuring a Free Fair and Safe Election During the Coronavirus Pandemic” SEPTEMBER 9 2020 I Introduction Chairman Clyburn Ranking Member Scalise and Members of the House Select Subcommittee on the Coronavirus Crisis my name is Kristen Clarke and I serve as the President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law “Lawyers’ Committee” Thank you for the opportunity to testify today on how we can ensure a free fair and safe General Election during the Coronavirus pandemic Throughout my career I have focused on strengthening our democracy by combating discrimination faced by African Americans and other marginalized communities The organization that I lead the Lawyers’ Committee is a national civil rights organization created in 1963 at the request of President John F Kennedy to mobilize the private bar to confront issues of racial discrimination Voting rights has been a core organizational priority since the inception of the organization and we continue to be at the forefront of policy and legal action aimed at protecting the right to vote I formerly served as the head of the Civil Rights Bureau for the New York State Attorney General’s Office where I led broad civil rights enforcement across the state Prior to that I spent several years at the NAACP Legal Defense Fund where I helped lead the organization’s work in voting across the country in particular defending the constitutionality of the Voting Rights Act I began my career as a trial attorney in the Honors Program of the Voting Section of the Department of Justice The Lawyers’ Committee also leads the nation’s largest and longest-running nonpartisan voter protection effort the Election Protection program which includes administering a voter hotline 1-866-OUR-VOTE Through Election Protection we work with close to 300 national state and community partners to provide Americans from coast to coast with comprehensive voting information and resources In 2020 our Election Protection program has been focused extensively on the barriers that voters face in the wake of the pandemic I am also a member of the National Task Force on Election Crises a crosspartisan group of civil rights and voting rights leaders and academics which is dedicated to ensuring a fair election in 2020 II Summary This country is enduring a public health crisis unlike anything we have confronted in over a century Ensuring people’s health and saving their lives must be among our nation’s highest priorities Unfortunately but not surprisingly the effects of the crisis have fallen predominantly on those living in poverty who are disproportionately African American Latino and Native American Page 2 of 38 If we do nothing this public health crisis could imperil our democracy as well Our freedoms are built on one of the most fundamental rights the right to vote 1 This pandemic is forcing our citizens to choose between protecting their health and participating in our democracy Voting should not be a choice between our fundamental rights and our life or health The American people should not be placed in circumstances where they are afraid to vote because of fear of contracting a highly contagious and potentially deadly virus Rather states must adapt election administration planning in order to facilitate the safe and accessible exercise of voting rights free of fear There are ways to ensure that voters have an array of safe options to vote Indeed the more options that are provided to voters the safer voting will be not only for voters but also for those who administer elections As with many other important areas of our national life significant new reforms and expenditures are necessary in addition to what existed for elections before the pandemic The health crisis has added new burdens on states and localities requiring them to cope with emergency circumstances It has also exposed shortcomings and aggravated flaws that already existed To enable voting for the millions of Americans who are used to voting in person on Election Day but who now wish to vote by mail or vote early to reduce the risk of exposure to COVID-19 states and localities will need to expand these voting methods For the many people who still prefer to vote in person new measures will be needed to ensure social distancing and hygiene at polling stations as well as different approaches to recruiting poll workers and other staff There are costs to achieve these objectives But the costs to this nation of imperiling the right to vote far outweigh the monetary expense of ensuring that all eligible voters are freely and safely able to vote III Background on COVID-19 February 2020 marked the first known death in the United States caused by the novel coronavirus or COVID-19 2 To date COVID-19 has claimed more than 186 173 lives in the United States The United States has at least 6 1 million The right to vote is a “fundamental political right” that is “preservative of all rights ” Yick Wo v Hopkins 118 U S 356 370 1886 “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society and any restrictions on that right strike at the heart of representative government ” Reynolds v Sims 377 U S 533 555 1964 2 Derrick Bryson Taylor How the Coronavirus Pandemic Unfolded a Timeline N Y TIMES May 26 2020 https www nytimes com article coronavirus-timeline html 1 Page 3 of 38 confirmed COVID-19 cases 3 As states began opening over the past several months coronavirus cases and in turn deaths have increased 4 COVID-19 is disproportionately killing African Americans The Centers for Disease Control and Prevention “CDC” has released limited race and ethnic demographic data concerning COVID-19 mortalities—but even these data tell the same story about racial disparities Even though African Americans make up only 13 4% of the United States population 5 they account for approximately 21% of COVID-19 deaths Forty-nine of fifty-six states and territories are currently reporting race and ethnicity data for COVID-19 mortalities and many states reflect even more stark racial disparities than the national average 6 For example in Alabama African Americans comprise 27% of the population but account for nearly 42% of COVID-19 deaths 7 In Michigan African Americans comprise about 14% of the population but account for 40% of deaths 8 In Illinois they account for 27% of deaths and only 14% of the population 9 This picture is enhanced when examining data from cities In Chicago African Americans account for 56% of deaths but make up only 30% of the population 10 The alarming rates at which COVID-19 is killing African Americans can be attributed to decades of discrimination in housing employment and health care Today ongoing discrimination in testing and treatment continues to fuel significant disparities in COVID-19 cases and outcomes 11 The virus that causes COVID-19 is extremely contagious and spreads in various ways including aerosols and respiratory droplets and contact between individuals The virus can spread through asymptomatic transmission—meaning that an infected individual who does not show any symptoms can pass on the virus through direct contact with others 12 Medical experts have called this the “Achilles’ CTRS FOR DISEASE CONTROL AND PREVENTION Coronavirus Disease 2019 Cases in the US https www cdc gov coronavirus 2019-ncov cases-updates cases-in-us html last visited September 5 2020 4 Alexis Madrigal A Second Coronavirus Death Surge is Coming Atlantic July 15 2020 https www theatlantic com health archive 2020 07 second-coronavirus-death-surge 614122 5 U S CENSUS BUREAU Quick Facts Population Estimates July 2019 https www census gov quickfacts fact table US PST045219 last visited July 18 2020 6 The COVID Tracking Project has compiled the latest race and ethnicity data from every state that reports it—to give us a better picture of the racial disparity in COVID-19 deaths https covidtracking com race last visited September 5 2020 7 THE COVID TRACKING PROJECT Racial Data Dashboard https covidtracking com race dashboard last visited September 5 2020 8 Id 9 Id 10 Elizabeth Hlvaninka COVID-19 Killing African Americans at Shocking Rates MEDPAGE TODAY May 1 2020 https www medpagetoday com infectiousdisease covid19 86266 11 See John Eligon Audra D S Burch Questions of Bias in Covid-19 Treatment Add to the Mourning for Black Families N Y TIMES May 20 2020 https www nytimes com 2020 05 10 us coronavirus-african-americans-bias html 12 Nathan W Furukawa et al Evidence Supporting Transmission of Severe Acute Respiratory 3 Page 4 of 38 heel” for public health strategies to control the pandemic 13 The virus enters the body through the nose mouth or eyes Some studies suggest that the virus can spread from contact with surfaces—when a person who coughs and sneezes leaves respiratory droplets on surfaces In very severe cases an infected person’s immune system can overreact to the virus’s presence and cause a build-up of fluid in the lungs making it extremely difficult for the person to breathe For those who have underlying conditions and comorbidities like diabetes or hypertension this may very well result in death There is no cure A future vaccine could help protect humans against COVID-19 but that vaccine does not yet exist 14 In planning for elections this year election officials should assume that COVID-19 will be a continuing danger According to the CDC COVID-19 presents a serious risk of death to people who are over the age of 60 have underlying health conditions such as heart disease diabetes and lung disease have weakened immune systems and are pregnant 15 On the recommendations of public health experts government officials at every level have taken drastic actions to reduce transmission and flatten the curve Federal state and local governments have implemented social distancing guidelines and encouraged social distancing IV Election Reforms During COVID-19 The rapid spread of COVID-19 in the United States during a presidential election year has forced states local elections officials voters and voting rights advocates to grapple with new election-related realities—in particular how to hold safe and accessible elections Several 2020 primary elections demonstrated that states were not prepared to hold elections during a pandemic In many states voters had to choose between exercising their right to vote and guarding against the risk of disease because while states either postponed election dates or moved to predominantly vote by mail elections many voters had no choice but to make use of in-person vote options that were inadequate—and at times put them at risk of contracting the COVID-19 virus Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic 26 EMERGING INFECTIOUS DISEASES JOURNAL no 7 last updated May 4 2020 https wwwnc cdc gov eid article 26 7 201595_article 13 Monica Gandhi et al Asymptomatic Transmission the Achilles’ Heel of Current Strategies to Control COVID-19 382 NEW ENG J of MED 2158 May 28 2020 https www nejm org doi full 10 1056 NEJMe2009758 14 Tanya Lewis How Coronavirus Spreads through the Air What We Know So Far SCI AM May 12 2020 https www scientificamerican com article how-coronavirus-spreads-through-the-air-what-weknow-so-far1 15 CTRS FOR DISEASE CONTROL AND PREVENTION Coronavirus Disease 2019 Groups at Higher Risk for Severe Illness Apr 17 2020 https www cdc gov coronavirus 2019-ncov need-extraprecautions groups-at-higher-risk html Page 5 of 38 The inability to meet the demand to vote by mail or to safely vote in person was caused by insufficient funding and a failure to provide options to enable voting in the difficult circumstances of the pandemic Congress provided $400 million for election assistance to the states in March in the Coronavirus Aid Relief and Economic Security “CARES” Act This was a welcome step but only a stopgap State officials from both political parties have identified additional needs and the experience of the primary elections demonstrates the need is real and substantial During primary elections in a number of states voters encountered poll closures poll worker shortages poll workers with inadequate training malfunctioning machines and long lines Additionally there was an increased demand for mail ballots but many voters as in Wisconsin did not receive applications or ballots within sufficient time needed to return their ballots by deadlines Having received ballots and mailed them on time many voters found that their ballots did not count or were rejected because they were not received by election officials16 or were received after the deadline often through no fault of the voter Other ballots were rejected because of signature mismatches or failure to sign the ballot Voters however should be given an opportunity to cure supposed defects as in New York where 14% of ballots were rejected in 2018 17 All of this left many voters particularly voters of color unable to safely exercise their right to vote Having not received their ballot frustrated voters faced the choice of staying home to avoid the risk of COVID-19 exposure or taking their chances in conditions ill prepared for social distancing often standing in line for hours exposed to contagion This is an unacceptable choice and completely unnecessary with adequate resources and reasonable preparation Many of the problems in this year’s primaries such as polling place closures machine malfunctions long lines and flawed vote-by-mail procedures occurred before the COVID-19 pandemic However these barriers to the vote were aggravated and increased by the pandemic and demonstrate beyond any doubt the need for resources to take action which is recognized by many state and local officials Nick Corasan Inside Wisconsin’s Election Mess Thousands of Missing or Nullified Ballots N Y TIMES Apr 9 2020 https www nytimes com 2020 04 09 us politics wisconsin-election-absenteecoronavirus html 17 Pam Fessler and Elena Moore Signed Sealed Undelivered Thousands of Mail-in Ballots Rejected for Tardiness NPR July 13 2020 https www npr org 2020 07 13 889751095 signed-sealedundelivered-thousands-of-mail-in-ballots-rejected-for-tardiness An NPR analysis of 17 states “found that in the primary elections held so far this year at least 65 000 absentee or mail-in ballots have been rejected because they arrived past the deadline often through no fault of the voter ” Id 16 Page 6 of 38 During the April 7 Wisconsin primary thousands of voters did not receive their absentee ballot on time or never received them 18 Local officials acknowledged these mistakes and that they were unable to cope with a surge in absentee ballots In Milwaukee polling places were reduced from 180 to five Not surprisingly this required many voters in that city with high concentrations of people of color to stand in line for hours In the smaller city of Madison there were sixty-six polling sites 19 During the June 9th Georgia primary the record suggests that everything that could go wrong did go wrong—voters not receiving absentee ballots on time insufficient numbers of and malfunctioning machines inadequate training of poll workers and long lines 20 During the Pennsylvania June 2nd primary Black and Latino voters encountered long lines and confusion at the polls because of last minute polling place closures and a militarized police presence at some polling places in Philadelphia and Pittsburgh As in other states thousands of absentee ballots did not reach voters in time forcing them to vote in person 21 These barriers to the vote were replicated in other states Congress and the States must act to ensure that the problems voters encountered during the primaries do not contribute to a nationwide nightmare during the November general election In the following I provide an in depth look at four states which helps provide an understanding of the multiple issues that must be addressed to ensure free fair and safe elections in November The testimony then proceeds through an examination of the overall landscape of the states and finally proceed to an analysis of needed reform issue-by-issue Georgia Georgia’s combined presidential preference primary state and local primaries and nonpartisan general elections which were postponed to June 9 th due to the raging COVID-19 pandemic across the state were by any measure catastrophic A perfect storm of election administration failures came together to Corasan supra note 16 Alison Dirr Mary Spicuzza What We Know So Far About Why Milwaukee Only Had 5 Voting Sites For Tuesday's Election While Madison Had 66 MILWAUKEE J SENTINEL Apr 9 2020 https www jsonline com story news politics elections 2020 04 09 wisconsin-election-milwaukee-had5-voting-sites-while-madison-had-66 2970587001 20 Richard Fausset and Reid Epstein Georgia’s Election Mess Many Problems Plenty of Blame Few Solutions for November N Y TIMES June 10 2020 https www nytimes com 2020 06 10 us politics georgia-primary-election-voting html 21 Ivey DeJesus In Communities Of Color Pa Primary Was Marred By Irregularities Including Voter Intimidation Advocates Say PA REAL-TIME NEWS June 2 2020 https www pennlive com news 2020 06 in-communities-of-color-the-primary-was-marred-by-a-slewof-irregularities-including-voter-intimidation-say-pa-voting-advocates html 18 19 Page 7 of 38 disenfranchise voters who unsuccessfully attempted to vote by absentee ballots and forced voters who had no choice but to vote in-person to experience oppressive long lines and delays In-Person Voting in Georgia Was Marked by Long Lines Delays and Problems Extreme and oppressively long lines and delays at Georgia polling locations on June 9 were depicted in many press accounts on and after Election Day 22 In Atlanta one polling location did not close until well after midnight with many voters having to wait over five hours to vote in a line that twisted far down the street 23 According to a review of June 9 election data by the Atlanta Journal Constitution AJC about 11% of Georgia’s polling sites closed more than an hour late and more than three-quarters of the voting sites in Fulton County closed after 8 00 p m “Black voters bore the brunt of long lines and late closings in overcrowded understaffed and poorly equipped polling places Only 61% of majority Black precincts closed on time compared with 80% of mostly white precincts ” according to the AJC’s analysis 24 According to the AJC’s report many of the problems faced by Georgia voters in the June 9th primaries were the product of the COVID-19 pandemic combined with polling place closures insufficient polling staff poor planning insufficient numbers of voting machines or inoperable equipment insufficient supplies of emergency paper ballots and other election administration problems 25 Problems for voters casting ballots in-person did not end with the June 9 th election During the August 11th runoff elections voters continued to experience long lines delays and problems at the polls—despite much lower voter turnout and fewer jurisdictions conducting runoff ballots 26 For example polling places in Floyd County were ordered to remain open until 9 00 p m when poll workers were unable to boot up ballot marking devices when the polls opened Poll hours were also extended at two polls in in Macon-Bibb County due to poll pad electronic poll books issues that delayed voting after the polls opened 27 Fausset Epstein supra note 20 Kevin Collier Cyrus Farivar Dareh Gregorian Ben Popken Georgia Election 'Catastrophe' in Largely Minority Areas Sparks Investigation NBC June 9 2020 https www nbcnews com politics 2020-election georgia-secretary-state-launches-investigation-afterunacceptable-voting-problems-n1228541 23 Mark Niesse Nic Thieme Extreme Voting Lines Expose Where Georgia Primary Failed ATLANTA J CONST July 28 2020 https www ajc com politics extreme-voting-lines-expose-where-georgiaprimary-failed YQUMSTEBVFAY7CR7UQOQEHSVLI 24 Id 25 Id 26 Stephen Fowler Few Problems Fewer Voters in Georgia Runoff Election GPB Aug 11 2020 https www gpb org news 2020 08 11 few-problems-fewer-voters-in-georgia-runoff-election 27 Id 22 Page 8 of 38 Absentee Ballot Issues in Georgia While Georgia does have no-excuse absentee voting and the Secretary of State mailed absentee ballot applications to 6 9 million active Georgia voters as well as heavily promoted absentee voting as a safer alternative to voting in person due to the COVID-19 pandemic the absentee ballot process he implemented was flawed at best and a disaster at worst For example the Secretary of State had to mail out 323 000 replacement absentee ballot applications to voters after a vendor sent the applications to incorrect street addresses when the voters provided a mailing address for election related mail 28 Some 60 000 Georgia voters also received absentee ballot applications mailed by the same vendor which had the wrong return address printed on them 29 All of the absentee ballots mailed to Georgia voters by the same vendor erroneously instructed voters to place their voted ballots in a privacy envelope as had been the practice in prior election cycles even though the vendor chose to substitute a folded piece of paper privacy sleeve for the privacy envelope referred to in the instructions causing many voters to be confused about how to return their ballots 30 In May 2020 the AJC reported that absentee ballot requests from an unknown number of Fulton County voters were missing apparently lost in the election office’s swamped email system 31 Later more than 250 Fulton County voters complained to the State Election Board that the county failed to send them absentee ballots despite having submitted applications for the ballots Of those at least 107 did not cast a vote in the primaries and it is likely that many more voters were affected but did not report the problem to the State Election Board 32 Fulton County also stopped accepting absentee ballot applications via email even though Sarah Kallis Georgia to Mail Out 323 000 New Absentee Ballot Request Forms ATLANTA J CONST Apr 30 2020 https www ajc com news state--regional-govt--politics georgia-mail-out-323-000-new-absenteeballot-request-forms bWgargMOEMBLLYNwxOdbML 29 Mark Niesse Some Georgia Absentee Ballot Request Forms List Wrong Return Address ATLANTA J CONST Apr 9 2020 https www ajc com news state--regional-govt--politics some-georgiaabsentee-ballot-request-forms-list-wrong-return-address YH11y0tXOVsbPEWZhLZ0XI 30 Jenna Eason The Instructions on Some Georgia Absentee Ballots are Wrong Here’s What You Need to Know TELEGRAPH May 1 2020 https www macon com news politicsgovernment election article242431106 html 31 Mark Niesse Ben Brasch Absentee Ballot Requests Go Missing in Fulton Ahead of Georgia Primary ATLANTA J CONST May 29 2020 https www ajc com news state--regional-govt-politics absentee-ballot-requests-missing-fulton-ahead-georgiaprimary kkXUUbxL0wug5niqAvKTqM 32 Mark Niesse Investigation Concludes Fulton Failed to Send Many Absentee Ballots ATLANTA J CONST Aug 27 2020 https www ajc com politics investigation-concludes-fulton-failed-to-sendmany-absentee-ballots KS5XW5BP5RCHVHGSSWP7TWM26I 28 Page 9 of 38 state law permits voters to submit applications electronically The county later changed its position in the wake of complaints 33 Many voters never received the notification mandated by the State Election Board from their county registrars’ offices informing them of the need to correct problems with the ballots in order for their votes to be counted Following a lawsuit brought by the Georgia Democratic Party the state agreed to extend the period for voters to cure problems with the ballots due to the lack of sufficient notice 34 In the wake of the rejection of some 8 000 absentee ballots cast by Georgia voters in the June 9th primary because the ballots were received by election officials after the 7 00 p m Election Day deadline a federal court recently granted a motion for a preliminary injunction in a lawsuit brought by the New Georgia Project and individual voters extending the deadline for receipt of absentee ballots to three days following the election if the ballots are postmarked by Election Day 35 An investigation by the New York Times “NYT” also revealed troubling issues with absentee ballots submitted by voters in Georgia’s June 9th elections 36 The NYT reported that following the June 9th election it was discovered that votes cast by voters on absentee ballots were not counted by the state’s new voting system scanners because voters used check marks or an “X” to mark their ballots instead of filling in a bubble on the ballot 37 The Times also reported Georgia election officials gave inconsistent information about the standard used by the scanners to count a voter’s mark as a vote including claiming it was the same standard certified by the Election Assistance Commission “EAC” —even though the EAC has not certified such a standard 38 Absentee ballot problems did not end with the June 9th election suggesting the likelihood that absentee ballot problems will likely continue in the November 3rd general election unless immediate remedial action is taken For example approximately 700 Fulton County voters received nonpartisan ballots instead of the Mark Niesse and Ben Brasch Fulton Reverses Course and Accepts Emailed Absentee Ballot Requests ATLANTA J CONST July 15 2020 https www ajc com news state--regional-govt-politics fulton-rejects-emailed-absentee-ballot-requests-after-primaryproblems p0LYsStYeF7NdlNhwgsyUK 34 Kelly Mena Georgia will give voters more time to correct rejected absentee ballots CNN June 16 2020 https www cnn com 2020 06 16 politics georgia-primary-rejected-absentee-ballots index html 35 Stephen Fowler Judge Extends Georgia's Absentee Ballot Deadline For November Election GPB Aug 31 2020 https www gpb org news 2020 08 31 judge-extends-georgias-absentee-ballotdeadline-for-november-election 36 Danny Hakim Reid J Epstein and Stephanie Saul Anatomy of an Election ‘Meltdown’ in Georgia N Y TIMES July 25 2020 https www nytimes com 2020 07 25 us politics georgia-election-votingproblems html 37 Id 38 Id 33 Page 10 of 38 Democratic primary runoff ballots they requested for primary runoff elections on August 11th 39 Despite the fact that an unprecedented number of Georgians over 1 million chose to vote by absentee ballot in the June 9 election in response to the COVID-19 pandemic the Secretary of State decided not to send absentee ballot applications to Georgia’s active voters again for the November 3rd general election 40 Claiming it would be too impractical and costly to mail absentee ballot applications again the Secretary of State implemented an online portal which allows only some but not all of Georgia’s voters to apply online 41 In order to use the portal the voter must have a Georgia driver’s license or state ID card 42 Voters who do not have access to the internet or do not have one of these forms of ID will be required to submit an absentee ballot application form to their county registrars’ offices in person by mail or other electronic means in order to obtain an absentee ballot for the November 3rd general election again risking that they will not receive their absentee ballots in time to return them by the deadline for receipt of the ballots It is clear from the June 9th and August 11th elections that Georgia voters are likely to continue to experience problems with both in-person and absentee voting unless remedial action is taken to ensure the problems experienced by Georgia voters in the primary and primary runoffs do not continue in the November 3rd general election Voters should not be forced to have to file lawsuits in order to obtain piecemeal reforms necessary to protect and preserve their fundamental right to vote—particularly in the face of this deadly pandemic Florida The impact of the COVID-19 pandemic on the March 17th Florida presidential preference primary may not have produced the long lines and delays seen in other states such as in Georgia and Wisconsin This was due in large part to lower in-person voter turnout surging numbers of voters casting ballots early or by mail due to concerns about COVID-19 and the absence of a contested GOP presidential preference primary 43 Mark Niesse Wrong Absentee Ballots Mailed to Over 700 Georgia Voters ATLANTA J CONST July 19 2020 https www ajc com politics wrong-absentee-ballots-mailed-to-over-700-georgiavoters QX6UOJ24LJBB3ND4BFD4H577UA 40 Mark Niesse Absentee Voting Program Embraced by Georgia Voters Then Abandoned ATLANTA J CONST June 29 2020 https www ajc com news state--regional-govt--politics absentee-votingprogram-embraced-georgia-voters-then-abandoned hkNttNsgXlaYZXjUatnvjK 41 Id 42 Secretary of State Brad Raffensperger Unveils New Online Absentee Ballot Request Portal https sos ga gov index php elections secretary_of_state_brad_raffensperger_unveils_new_online_abs entee_ballot_request_portal 43 Alex Daugherty David Smiley More Democrats Voted in Florida’s 2020 Primary Than in 2016 MIAMI HERALD Mar 17 2020 https www miamiherald com news politicsgovernment article241276281 html 39 Page 11 of 38 However the August 18th Florida statewide primary saw the highest turnout for a statewide primary election in eighteen years with many of the state’s voters casting vote by mail ballots as well as choosing to vote in-person signaling that the state may very well see record turnout numbers in the November 3rd general election 44 While neither of these Florida elections produced the long lines and delays seen in other states during the COVID-19 pandemic partly due to many voters taking advantage of the state’s no-excuse vote by mail process voting by mail poses significantly higher risks that the vote by mail ballots of voters of color younger voters and UOCAVA voters will not be counted 45 As a result the state must not assume that voting by mail is a cure-all for voting in the face of the COVID-19 pandemic for all voters and needs to provide the resources necessary for fair equitable and safe in-person voting for voters of color and other voters who choose to vote in person in the general election Thus it is very concerning that the Florida Governor Ron DeSantis refused to heed calls by the state’s sixty-seven County Supervisors of Election to provide them with more flexibility in administering the November 3rd general election and delayed funding they need in order to adequately prepare for the potentially record turnout—particularly given the likelihood the state will still be plagued by the COVID-19 pandemic throughout the fall and on Election Day In May the Florida State Association of Supervisors of Elections sent an urgent appeal to Governor DeSantis pleading with him to apply for the emergency HAVA funds under the CARES Act that would help them pay for COVID-19 related supplies and provide resources for administering elections in the face of the COVID19 pandemic 46 Despite the fact Florida was eligible for up to $20 253 853 in emergency HAVA funding through the CARES Act the Governor delayed finalizing a request for these funds from the Election Assistance Commission EAC and many John Kennedy Despite Pandemic Florida Sees Impressive Voter Turnout For Primary TALLAHASSEE DEMOCRAT Aug 19 2020 https www tallahassee com story news 2020 08 19 floridavoter-turnout-primary-election-still-high-despite-covid-19-coronavirus-concerns 5609092002 John Kennedy Florida Primary Turnout Highest in 18 Years PALM BEACH POST Aug 19 2020 https www palmbeachpost com story news politics 2020 08 19 florida-primary-turnout-highest-in18-years 113359226 45 Anna Baringer Michael C Herron Daniel A Smith Voting by Mail and Ballot Rejection Lessons from Florida for Elections in the Age of the Coronavirus ELECTION L J forthcoming https electionscience clas ufl edu files 2020 04 Baringer_Herron_Smith_VBM_FL pdf Jane C Timm A White Person and A Black Person Vote by Mail in the Same State Whose Ballot is More Likely to be Rejected NBC Aug 9 2020 https www nbcnews com politics 2020-election whiteperson-black-person-vote-mail-same-state-whose-ballot-n1234126 46 Alex Daugherty David Smiley Florida Supervisors Urge Desantis to ‘Act Immediately’ to Accept Federal Election Funds MIAMI HERALD May 13 2020 https www miamiherald com news politicsgovernment article242699171 html 44 Page 12 of 38 of the state’s sixty-seven Supervisors of Election had still not received the CARES Act funding by mid-August 47 Governor DeSantis also rejected calls by Supervisors to grant them flexibility to extend early voting days and create vote centers to serve voters who could face long lines and delays at neighborhood polling sites if there is a large surge of inperson voting Instead Governor DeSantis merely encouraged schools to close on Election Day in order to serve as poling sites and signed an executive order making it easier for state employees to serve as poll workers and allowing Supervisors to process vote by mail ballots early 48 However the executive order does nothing to ensure counties will have adequate resources to ensure voters can vote safely and securely in-person or by mail in the general election Therefore Congress must take action to ensure that Florida’s voters will be able to vote safely and securely whether in-person or by mail given the likelihood the COVID-19 pandemic will continue to impact voters in the November 3rd general election Wisconsin Wisconsin’s April 7th presidential primary represented a crash course in how not to run an election during a pandemic Inflexibility in the legislature regarding moving back the election date created chaos both on the ground and in the courts 49 Restrictive absentee ballot rules disenfranchised untold numbers of voters and those who went to vote in-person experienced unprecedented lines in the face of massive polling place closures 50 For example the City of Milwaukee only had five in-person polling places available for nearly 300 000 registered voters resulting in reduced turnout by nearly nine percentage points and disproportionately affecting Black voters according to one study 51 Moreover voting by absentee ballot was Jeffrey Schweers Federal COVID-19 Funds for Florida Election Supervisors Delayed Over A Month Expected This Week TALLAHASSEE DEMOCRAT Aug 11 2020 https www tallahassee com story news local state 2020 08 11 florida-election-supervisors-waitingfederal-covid-19-funds 3335483001 48 Gary Fineout Desantis Offers Election Day Help as Republicans Say They'll Cast Ballots in Person POLITICO June 17 2020 https www politico com states florida story 2020 06 17 floridagov-wants-schools-and-state-workers-to-help-with-running-election-1293573 49 Nick Corasaniti Reid J Epstein Lisa Lerer Wisconsin Is Set to Vote on Tuesday After Court Overrules Governor’s Postponement N Y TIMES Apr 6 2020 https www nytimes com 2020 04 06 us politics wisconsin-primary-election-postponedcoronavirus html 50 Elise Viebeck Amy Gardner Dan Simmons Jan M Larson Long Lines Anger and Fear of Infection Wisconsin Proceeds with Elections Under Court Order WASH POST Apr 7 2020 https www washingtonpost com politics long-lines-form-in-milwaukee-as-wisconsin-proceeds-withelections-under-court-order 2020 04 07 93727b34-78c7-11ea-b6ff-597f170df8f8_story html 51 Kevin Morris Did Consolidating Polling Places in Milwaukee Depress Turnout BRENNAN CTR June 24 2020 https www brennancenter org our-work research-reports did-consolidating-polling47 Page 13 of 38 marred by technical glitches and slow mail delivery which resulted in thousands of completed ballots that were never delivered to election officials 52 While Wisconsin had another primary on August 11th which went much more smoothly with many more in-person polling locations available for a relatively low-turnout election election officials are anticipating record turnout for the general election in November 53 Wisconsin must be better prepared to handle the increase in voters wishing to cast both absentee and in-person ballots To prepare for the November election Wisconsin must keep open as many polling places as possible that can follow CDC guidance regarding PPE and social distancing to keep voters and poll workers safe It is necessary to ensure that officials follow through on these issues In Milwaukee officials say there will be at least 170 polling locations on Election Day staffed by approximately 1 400 poll workers as well as at least sixteen absentee drop box and early voting locations with early voting also available at Fiserv Forum and Miller Park which will also have curbside voting available 54 Wisconsin must also eliminate its draconian restrictions on absentee ballots such as the witness requirement that is very difficult for many voters to comply with during a pandemic as well as an option for voters who have not been able to acquire an ID for voting due to limited DMV hours 55 Another concern is the need to remedy the postal problems that marred the primaries In the April 7th primary there were hundreds of undelivered absentee ballots and thousands of absentee ballots discarded for completion errors Officials say they have acted to improve absentee ballot instructions and revised address labels and added bar codes to facilitate delivery and tracking However a major concern remains the turmoil at the U S Postal Service and delivery delays due to new management According to the Wisconsin State-Journal state officials including U S Senator Tammy Baldwin and Madison Mayor Satya Rhodes-Conway places-milwaukee-depress-turnout see also Alison Dirr Mary Spicuzza supra note 19 52 Patrick Marley Thousands of Absentee Ballots in Wisconsin Weren’t Counted Because of Mailing Problems and Tech Glitches MILWAUKEE J SENTINEL May 19 2020 https www jsonline com story news politics 2020 05 19 glitches-mailing-problems-mar-absenteevoting-wisconsin 5219371002 53 Low-Turnout Partisan Primary Gives Election Officials Practice for November WIS ELECTIONS COMM’N Aug 14 2020 https elections wi gov node 7026 54 Marti Mikkelson Milwaukee Election Officials Promise More Polling Places Workers in Tuesday’s Election WUWM Aug 10 2020 https www wuwm com post milwaukee-election-officials-promisemore-polling-places-workers-tuesdays-election#stream 0 Bridgit Bowden Fiserv Forum and Miller Park to be Used for Early Voting Milwaukee Officials Say WIS PUBLIC RADIO Aug 31 2020 https www wpr org fiserv-forum-and-miller-park-be-used-early-voting-milwaukee-officials-say 55 See Mem in Supp of Gear v Bostelmann 20-CV-278 Pls ’ Mot for Prelim Inj 51-58 Democratic Nat’l Comm v Bostelmann No 3 20-cv-00249 W D Wis filed July 8 2020 ECF No 421 Br of the Edwards Pls in Supp of Mot for Prelim Inj 46-51 Democratic Nat’l Comm v Bostelmann No 3 20-cv-00249 W D Wis filed July 8 2020 ECF No 397 Page 14 of 38 are demanding assurances that the U S Postal Service will fix delays restore mailboxes and ensure that all absentee ballots will get to voters and back to election officials by 8 p m on Election Day Wisconsin Attorney General Josh Kaul filed a lawsuit against the Trump administration charging that changes made to mail service are unlawful and noting not only an impact on elections but on seniors and veterans who rely on medications Senator Baldwin wrote to the Postmaster General saying U S Postal Service employees told her staff that mail sorting machines were being removed or disconnected in Milwaukee Madison Green Bay and Rothschild processing and distribution centers She disagreed with the Postmaster General’s statements that the mail sorting machines are not needed 56 Texas This discussion focuses on the state’s response to COVID-19 following the Texas’ primary election took place on March 3rd Super Tuesday prior to the height of the pandemic in the United States Since that primary Texas Secretary of State Ruth Hughs has received a letter from the U S Postal Service stating that “under our reading of Texas’ election laws certain deadlines for requesting and casting mail-in ballots are incongruous with the Postal Service’s delivery standards ” which “creates a risk that mail-in ballots requested near the deadline under state law will not be returned by mail in time to be counted ” The Postal Service “strongly recommends” that “voters should submit their ballot request early enough so that it is received by their election officials at least 15 days before Election Day at a minimum ” and that “domestic voters should generally mail their completed ballots at least one week before the state’s due date” those deadlines being November 3 for ballots without a postmark and November 4 for ballots with a postmark 57 Governor Abbott previously issued proclamations moving the date of the 2020 Primary Runoff Election from May 26 to July 14 Governor Abbott also added five days to early voting for the primary runoff election and he added six days to early voting for the November 2020 general election Governor Abbott also granted voters the ability to deliver a mail-in ballot in person to the early voting clerk’s office prior to Election Day However neither the Governor nor anyone else has taken action to 1 extend the mail-in ballot return deadline 2 eliminate the requirement that for applications for mail-in ballots submitted by fax or email that the hard copy must also be mailed and received by the early voting clerk no later than four business Wisconsin Officials Press USPS for Assurances on Election-Related Mail A P Aug 31 2020 https madison com wsj news local govt-and-politics wisconsin-officials-press-usps-for-assuranceson-election-related-mail article_990d728f-1e86-55cb-bb9f-1cf01cf05310 html 57 Cassandra Pollock USPS Warns Texas That Some Mail-in Ballots May Be Delayed in November The Texas Tribune August 14 2020 https www texastribune org 2020 08 14 texas-mail-in-ballotsusps 56 Page 15 of 38 days later or 3 to allow voters to deliver completed mail ballots in person to secure county-controlled boxes located at early voting sites or early voting clerk offices The failure to take these actions mean that Texas voters continue to be at risk of disenfranchisement particularly those who are concerned about voting in person due to COVID-19 Separately the Fifth Circuit stayed a district court order granting a preliminary injunction pending appeal saying that all voters could request an absentee ballot during the pendency of pandemic circumstances 58 The Fifth Circuit decision is distressing and the clock will probably run out and a final decision is unlikely before the election The United States Postal Service Before taking a wide-angle lens view of other states I will discuss the U S Postal Service turmoil and delays affecting vote by mail nationwide and highlighted in my discussion of Wisconsin In the midst of an historic pandemic that has already created serious challenges for voters and election administrators including an unprecedented surge in voting by mail Postmaster General DeJoy has chosen to implement and refused to rollback sweeping changes to Postal Service policies and practices 59 These changes including the reversal of long-standing policy to leave no mail behind at the end of each day and the decommissioning of hundreds of high-volume mail sorting machines across the country could not have come at a worse time given the crucial role the Postal Service must play in facilitating elections during this pandemic Far from increasing efficiency as Postmaster General DeJoy has publicly insisted is his intent these changes have already resulted in significant disruptions and delays in mail delivery—and appear designed to make it more difficult for states to administer voting by mail and to ensure that every eligible voter is able to cast a ballot that will be counted Indeed the President has admitted this is precisely his goal in denying additional funding to the Postal Service—to undermine the ability of states to successfully conduct voting by mail as is their constitutional prerogative and as has been necessitated in 2020 by the ongoing pandemic—and the recent changes enacted by the Postal Service seem to have this same goal as well In response to this unprecedented assault on the Postal Service and on free and fair elections the Lawyers’ Committee filed suit against Postmaster General Texas Democratic Party v Abbott No 20-50407 5th Cir 2020 Bogage et al Dejoy Pushes Back on Criticism of Changes to Postal Service Says He Won’t Restore Sorting Machines WASH POST Aug 24 2020 https www washingtonpost com politics 2020 08 24 dejoy-testimony-usps-house 58 59 Page 16 of 38 DeJoy and the Postal Service—on behalf of the National Urban League Common Cause and the League of Women voters and their members—as did almost half of all states as well as other civic organizations and individuals Our lawsuit and others insist that Postmaster General DeJoy comply with federal law in clearing these sweeping changes in national postal policy with the Postal Regulatory Commission including holding a public hearing prior to their implementation— which he did not do Our lawsuit also makes clear that sabotaging the Postal Service in order to undermine Americans’ ability to vote safely and securely by mail violates the Constitution and that these changes must be reversed and the status quo restored immediately 60 There are many steps states and local election administrators can take on their own to ensure that all eligible voters who cast their ballots by mail have their votes counted and to minimize the risk of disenfranchisement due to disruptions and delays in mail delivery States which currently require mail ballots to be received by Election Day should instead count all ballots postmarked by Election Day and received a reasonable time afterwards—a practice that was affirmed by the Supreme Court in Wisconsin’s April 7 primary election 61 States must also allow voters to drop their mail ballots off in person at election offices polling places and secure drop boxes—all practices with proven track records for safety and security in numerous states States must provide voters with notice and the opportunity to cure any defects prior to rejecting their ballot—as is required by the Constitution Local election officials should make use of ballot tracking technology provided by the Postal Service and must coordinate with local postal officials more closely than ever before to ensure that no ballot is left behind by conducting in-person sweeps of mail facilities on Election Night and before ballot receipt deadlines— thousands of voters were disenfranchised in 2020 primary elections due to a failure to practice this simple administrative safeguard in local jurisdictions across the nation Overview of the States In the 2020 primaries officials in several states responded to the public health crisis by taking emergency action to increase access to mail balloting for voters Yet many problems remain to be addressed with little time to do so Examples of action taken62 by several states—including Maryland New Jersey and Nevada—are National Urban League et al v Louis DeJoy et al D MD no 1 20-cv-02391 filed Aug 18 2020 Right-to-vote 1st Amendment and statutory challenge to U S Postal Service changes in practices that may affect mail voting 61 Republican Nat’l Comm v Democratic Nat’l Comm 140 S Ct 1205 1206–07 2020 62 For a state by state tabulation see Voting procedure changes in response to the coronavirus pandemic 2020 BALLOTPEDIA https ballotpedia org Changes_to_election_dates _procedures _and_administration_in_response_to_ the_coronavirus_ COVID-19 _pandemic _2020#Absentee 2Fmail-in_voting_procedure_changes Note 60 Page 17 of 38 operating “no-excuse” mail ballot processes that sought to forgo the application process and send ballots directly to voters In other states officials sent mail ballot applications to every voter as a means of encouraging mail voting Georgia’s Secretary of State issued a directive to send absentee ballot request forms to all of Georgia’s 6 9 million registered voters during the June primary West Virginia’s Secretary of State issued a similar directive to county elections commissions to send postage pre-paid absentee ballot requests to all registered voters in the upcoming primary election on June 9th Perhaps the most significant steps were taken by states that changed their excuse-required mail ballot process to a no-excuse process In Alabama the Secretary of State issued a new emergency rule allowing any qualified voter who determines that it is impossible or unreasonable to vote at their polling place for the upcoming primary election to vote absentee under the “physical illness” excuse provision so long as voters include proper identification with their absentee applications Similarly New Hampshire’s Secretary of State issued guidance that for all upcoming elections in 2020 all voters “have a reasonable ground to conclude that a “physical disability” exists and therefore all voters can request an absentee ballot on that basis Delaware’s Governor similarly issued an executive order expanding the excuses under state law so voters who are in self-isolation or quarantine related to COVID-19 can vote by mail Indeed of the sixteen states with excuse-required processes nearly all took action to make mail voting more accessible Despite state legislative changes already made many problems remain The matters at issue are illustrated by the recent rise in elections litigation across the country One source summarizes by saying the cases fall into categories all-mail elections absentee ballot eligibility and applications witness requirements and how ballots can be returned 63 The six states that have not expanded requirements for absentee ballots have been sued for reasons such as not allowing voters to use COVID-19 concerns to request a ballot These include Indiana Louisiana Mississippi South Carolina Tennessee and Texas 64 that as the table shows some states such as Maryland took different approaches to the primary election and the general election 63 “The Canvass September 2020 ” https www ncsl org research elections-and-campaigns thecanvass-september-2020 aspx 64 Indiana Tully v Okeson No 1 20-cv-01271-JPH-DLP 2020 WL 4926439 S D Ind 2020 Louisiana Complaint Harding v Edwards No 3 20-cv-00495-JWD-SDJ M D La Aug 3 2020 Mississippi Complaint Oppenheim v Watson No 25CH1 20-cv-00961 Miss Ch filed Aug 11 2020 South Carolina Middleton v Andino No 3 20-cv-01730-JMC 2020 WL 4915566 D S C Aug 21 2020 Tennessee Fisher v Hargett No M2020-00831-SC-RDM-CV 2020 WL 4515279 Tenn Aug 5 2020 Texas Texas Democratic Party v Abbott 961 F 3d 389 5th Cir 2020 Page 18 of 38 Another issue is the burden during a pandemic of requiring witnesses and notarization for absentee ballots during a pandemic which has been challenged in several states Minnesota agreed under a consent decree not to enforce witness requirements in 2020 65 Rhode Island agreed to suspend witness or notary requirements66 and the United States Supreme Court denied the RNC’s motion to overturn the consent decree 67 Other witness litigation involves Alabama North Carolina Oklahoma South Carolina Virginia partially settled and Wisconsin 68 Other litigation involves whether ballots received after election day must be counted Examples include challenges to hard Election Day receipt deadlines in Georgia Minnesota Montana New Hampshire and South Carolina 69 However some litigants have questioned later deadlines that allow ballots after Election Day in Illinois and Nevada 70 Two cases in Ohio involve important issues One challenges the directive of the Secretary of State limiting each Ohio county to a single secure drop box for absentee applications and ballots 71 The other is a challenge to the Secretary regarding rejection of absentee ballots for signature mismatches without opportunity for voters to cure alleged defects 72 The Lawyers’ Committee has been involved in over twenty cases this year many with a relationship to the pandemic Examples include cases relating to LaRose v Simon No 62-CV-20-3149 Minn Dist Ct June 16 2020 Common Cause RI v Gorbea No 1 20-cv-00318-MSM-LDA 2020 WL 4460914 D R I July 30 2020 67 Republican Nat Comm v Common Cause RI No 20A28 2020 WL 4680151 U S Aug 13 2020 68 Alabama Merrill v People First of Alabama No 19A1063 2020 WL 3604049 U S July 2 2020 North Carolina Democracy N Carolina v N Carolina St Bd of Elections No 1 20CV457 2020 WL 4484063 M D N C Aug 4 2020 Oklahoma Complaint DCCC v Ziriax 4 20-cv-211-JED-JFJ N D Okla June 11 2020 South Carolina Middleton No 3 20-cv-01730-JMC 2020 WL 4915566 D S C Aug 21 2020 Virginia Second Amended Complaint for Injunctive and Declaratory Relief League of Women Voters of Va v Va St Bd of Elections No 6 20-CV-00024-NKM-RSB W D Va Jul 17 2020 Wisconsin Democratic National Committee v Bostelmann No 3 20-cv-249-wmc 2020 WL 1638374 W D Wis Apr 2 2020 69 Georgia The New Georgia Project v Raffensperger No 1 20-CV-01986-ELR 2020 WL 5200930 N D Ga Aug 31 2020 Minnesota LaRose No 62-CV-20-3149 Minn Dist Ct June 16 2020 Montana Complaint for Declaratory and Injunctive Relief Driscoll v Stapleton No DA 20-0295 Mont Dist Ct Mar 13 2020 New Hampshire Amended Complaint for Declaratory and Injunctive Relief American Federation of Teachers v Gardner No 216-2020-CV-00570 N H Super Ct Aug 11 2020 South Carolina Middleton No 3 20-cv-01730-JMC 2020 WL 4915566 D S C Aug 21 2020 70 Illinois Complaint Cook County Republican Party v Pritzker NO 1 20-cv-04676 N D Ill Aug 10 2020 Nevada Complaint Donald J Trump for President v Cegavske No 2 20-cv-01445 D Nev Aug 4 2020 71 Compl A Philip Randolph Inst Of Ohio v LaRose 1 20-cv-01908-DAP N D Ohio filed Aug 26 2020 72 Id 65 66 Page 19 of 38 ● Challenge to purge Georgia State Conference of NAACP v DeKalb County BOER ND GA 1 20-cv-00879-ELR filed Feb 26 2020 in settlement discussions ● Sections 4 e and 203 relating to language requirements challenge to distribution of absentee ballot applications GALEO v Gwinnett County BOER ND GA 1 20-cv-01587-WMR filed April 14 2020 Motion to dismiss amended complaint being briefed ● Amended complaint filed as to criminalization of distribution of applications for absentee ballots and preliminary motion filed Memphis A Philip Randolph Inst V Hargett MD Tenn 3 20-mc-0999 filed May 1 2020 ● Challenge to absentee ballot procedures and implementation of voter ID law during pandemic Motion for preliminary injunction pending Voluntarily dismissed after State announced procedures that provided all relief we asked for Collins v Adams WD KY filed May 27 2020 ● Extension of voting hours Favorable TRO decision Georgia State Conf of NAACP v Gwinnett County BOER filed June 9 2020 ● Challenge to absentee ballot deadline Motion for preliminary injunction pending Common Cause Indiana and Indiana NAACP v Connie Lawson S D Ind no 1 20-cv-20007-SEB-TAB filed July 30 2020 ● Challenge to lack of notice and opportunity to cure absentee ballots rejected for signature mismatch Motion for preliminary injunction pending League of Women Voters of Ohio and A Philip Randolph of Ohio v Frank La Rose S D Ohio no 2 20-cv-03843 filed July 31 2020 ● Motion to intervene as plaintiffs on behalf of Common Cause PA LWV PA Black Political Empowerment Project Make the Road PA in suit dealing with procedures re drop boxes absentee ballots and poll watching for Nov election Pennsylvania Democratic Party v Kathy Boockvar Commonwealth Court of Pennsylvania no 407 MD 2020 August 10 2020 ● Right-to-vote First Amendment and statutory challenge to U S Postal Service changes in practices that may affect mail voting also representing Common Cause LWV National Urban League et al v Louis DeJoy et al D MD no 1 20-cv-02391 filed Aug 18 2020 ● Challenge to SOS directive prohibiting more than one drop box in each county A Phillip Randolph Institute of Ohio et al v Frank LaRose N D Page 20 of 38 Ohio no 2 20-cv-03843-MHW-KAJ filed August 26 2020 also representing LWV of Ohio and Ohio NAACP ● Challenge to limited eligibility and notarization requirements for absentee voting during pandemic failure to provide notice and opportunity to cure rejections for signature mismatch Cynthia Parham et al v Michael D Watson Jr et al S D Miss no 3 20-cv-00572 -DPJ-FLB filed August 27 2020 also representing LWV of Miss and Miss NAACP ● Challenge to statute criminalizing distribution of absentee ballot applications Jeffrey Lichtenstein et al v Tre Hargett MD Tenn No 20-cv374 filed August 31 2020 also representing Memphis West Tenn AFLCIO Central Labor Council Equity Alliance Tenn NAACP Memphia APRI and Free Hearts V Need for Reforms—Issue by Issue Analysis Turning from examples of recent state measures and litigation challenges the following is an issue by issue analysis of needed reforms including among other needed options online and same-day voter registration no excuse absentee vote-bymail with postage paid by the government safe in-person voting and early inperson voting 73 Adequate funding and election reforms can provide solutions to the chaos and dysfunction that plagued primaries For example adequate funding can help ensure sufficient numbers of trained poll workers Early voting and widely available vote-by-mail can relieve pressure on in-person voting Together these can remedy the disgraceful performance in primaries earlier this year that resulted in thousands of people standing for hours in long lines to vote during the pandemic often in inclement weather 1 Voter Registration A critical and sometimes overlooked component of expanding vote-by-mail options is the first step in the voting process voter registration The pandemic has seriously impacted the opportunity for new voters or those who have moved to a The Health and Economic Recovery Omnibus Emergency Solutions Act “HEROES” Act H R 6800 116th Cong 2d Sess as passed by House of Representatives May 15 2020 includes provisions addressing in whole or in part many of the points made in this testimony including for Federal elections online registration and same day registration no excuse absentee ballots prohibiting witness and notary requirements for mail ballots in emergency situations sending mail ballots to all registered voters requiring an option for online requests for mail ballots due process and opportunity to cure for signature matching accessibility of early voting polling places options for return of mail ballots including drop-off locations and designating another person to return the ballot See also “Considerations for Election Polling Locations and Voters ” CDC June 22 2020 https www cdc gov coronavirus 2019-ncov community election-polling-locations html 73 Page 21 of 38 new voting district since the last election to register to vote Because of the pandemic motor vehicle facilities 74 a prime location for voter registration under the “motor voter law ”75 have been closed in many jurisdictions making it difficult for new drivers—predominately younger people—to register to vote 76 Many jurisdictions have also closed public assistance agencies disability offices and other government agencies that register voters 77 The impact has been particularly felt in communities of color where voter registration drives by non-profit organizations rely on church gatherings picnics and local street fairs in addition to door-to-door canvassing for their success 78 Student voter registration drives often take place on college campuses many of which are closed for the indefinite future 79 In order to ameliorate the impact on voter registration caused by the pandemic steps must be taken to facilitate voter registration Two approaches are online voter registration and same-day voter registration 80 Online voter registration enables potential voters to register from their homes through their home computers or smartphones mitigating any potential concern about exposure to the virus and enabling them to register during evenings and weekends Same-day voter registration is another invaluable tool to ensure that all potential voters can participate because it enables people to both register and cast a ballot on Election Day or during early voting Research has shown that states with same-day voter registration consistently have some of the highest voter turnout and participation rates 81 See e g Compl Collins v Adams No 3 20-cv-00375 W D Ky filed May 27 2020 National Voter Registration Act “NVRA” 52 U S C § 20501 et seq 1993 76 See e g Ida Domingo DMV Remains Closed in Virginia Once Open Appointments Will Be Required ABC May 11 2020 https wset com news coronavirus dmv-remains-closed-until-furthernotice-in-virginia-due-to-pandemic 77 See e g Mark Miller Coronavirus Is Closing Social Security Offices Here’s How to Get Benefit Help N Y TIMES Mar 17 2020 https www nytimes com 2020 03 17 business retirement coronavirus-social-security html 78 See Tenn State Conf of NAACP v Hargett 420 F Supp 3d 683 M D Tenn 2019 On behalf of civic engagement organizations the Lawyers’ Committee and its partners challenged a restrictive Tennessee law that placed draconian civil and criminal penalties on these organizations’ ability to conduct large scale voter registration drives The court noted that the law impinged on “central elements of expression and advocacy” further recognizing that “these drives historically have involved both encouraging and facilitating registration including at least in many cases by physically transporting applications ” Id at 699 79 See e g Nicole Taylor Student Voter Engagement Handbook at 5 FAIR ELECTIONS CTR CAMPUS VOTE PROJECT Sept 2018 https 15fedd24-5236-4bea-bc354ea36b399531 filesusr com ugd 85cfb4_eafda5a391884b92beb70c0f7fb672c3 pdf highlighting the importance of voter registration events non campus as a part of student engagement and advocacy at colleges 80 At least nineteen states and the District of Columbia have same-day voter registration including California Colorado Connecticut District of Columbia Hawaii Idaho Illinois Iowa Maine Maryland Michigan Minnesota Montana Nevada New Hampshire Utah Vermont Washington Wisconsin and Wyoming NAT’L CONF OF STATE LEGISLATURES Voter Registration Deadlines Nov 1 2019 https www ncsl org research elections-and-campaigns voter-registration-deadlines aspx 81 George Pillsbury Caroline Mak America Goes to the Polls 2018 Voter Turnout and Election 74 75 Page 22 of 38 2 Expanding Vote-by-Mail Options Options must be expanded for requesting receiving and returning mail-in ballots Some voters prefer to vote by mail during the pandemic fearing that they will be exposed to COVID-19 if they vote in person 82 Many of these voters prefer to vote by mail because they have comorbidities or care for immunocompromised or otherwise vulnerable loved ones who face a higher risk of contracting COVID-19 These are legitimate justifications to expand vote-by-mail processes—and they ensure that restrictions on mail-in voting does not disenfranchise significant numbers of voters during the pandemic a Background on Voting by Mail All fifty states have a process by which at least some voters can cast a ballot by mail Five states—Colorado Hawaii Oregon and Washington and Utah— conduct elections by mail 83 meaning that officials send a ballot in the mail and the voter can return the ballot through the mail or in-person at established vote centers or voting booths for a period before and on Election Day 84 At least sixteen states authorize local governments to opt into a predominantly vote-by-mail system 85 allow all-mail absentee voting in local or special elections 86 or permit certain jurisdictions to conduct elections by mail based Policy in the 50 States at 8 NONPROFIT VOTE THE U S ELECTIONS PROJECT Mar 2019 https www nonprofitvote org documents 2019 03 america-goes-polls-2018 pdf 82 Two-Thirds of Americans Expect Presidential Election Will Be Disrupted by COVID-19 PEW RESEARCH CTR Apr 28 2020 https www people-press org 2020 04 28 two-thirds-of-americansexpect-presidential-election-will-be-disrupted-by-covid-19 83 COLO REV STAT § 1-7 5-104 all counties “shall” conduct general primary odd-year coordinated recall and congressional vacancy elections by mail ballot H AW REV STAT § 11-101 all elections “shall be conducted by mail” beginning with the 2020 primary election O R REV STAT § 254 465 “ c ounty clerks shall conduct all elections in this state by mail” WASH REV CODE § 29A 40 010 in every general special or primary election each active registered voter “shall receive a ballot by mail” unless county officials remove the voter from the rolls U TAH CODE ANN § 20A-3-302 authorizing election officers to mail a ballot to each active voter in the precinct In 2020 all of Utah’s twenty-one counties opted into the mail-ballot only 84 COLO REV STAT § 1-7 5-102 2 “mail ballot elections conducted by the county clerk and recorder must include voter service and polling centers so voters can register to vote update voter registration information and vote in person ” HAW REV STAT § 11-92 1 election officials must establish voter service centers across the state OR REV STAT § 254 474 county clerks at each primary and general election must maintain “voting booths” in the county WASH REV CODE § 29A 40 160 1 “ t he voting center shall be open during business hours during the voting period which begins eighteen days before and ends at 8 00 p m on the day of the primary special election or general election ” 85 See e g CAL ELEC CODE § 4005 authorizing all-mailed ballot elections including mailing each registered voter a ballot N D CENT CODE § 16 1-11 1-01 authorizing mailed ballots 86 See e g ALASKA STAT § 15 20 800 director may conduct any election other than a general party primary or municipal election by mail and “shall” send a ballot to every registered voter A RIZ REV STAT ANN §§ 16-409 16-558 01 a city town or school district may conduct a mail ballot election Page 23 of 38 on population size 87 In the local counties that have opted in to vote by mail in these sixteen states boards of elections automatically mail ballots to registered voters without requiring voters to apply for absentee ballots and voters can return the ballots by mail or in person In the local jurisdictions that do not employ automatic vote by mail in these sixteen states any registered voter can request to vote by mail without having to provide an excuse 88 In roughly thirty-four states including the five vote-by-mail only states and Washington D C any registered voter can request a vote-by-mail ballot without providing an excuse as to why he or she cannot appear to vote in person on Election Day 89 The remaining roughly sixteen states require a qualified voter to provide a statutorily authorized reason for requesting an absentee ballot 90 b Actions States Have Taken to Facilitate Voting by Mail The pandemic presents unprecedented circumstances for many voters who have reasonable fears of voting in person and prefer to vote by mail Since the spread of COVID-19 several states which had excuse-only absentee voting have taken legislative or executive action to create mostly vote-by-mail systems and make it easier for their citizens to request absentee ballots For example Alabama’s Secretary of State issued a new emergency rule allowing any qualified voter who determines that it is impossible or unreasonable to vote at their polling place for the upcoming primary election to vote absentee under the “physical illness” excuse provision so long as voters include proper identification with their absentee applications 91 Georgia’s Secretary of State issued a directive to send absentee ballot request forms to all of Georgia’s 6 9 million registered voters in the upcoming primary election on May 19 92 West Virginia’s Secretary of State issued a similar and “shall send by nonforwardable mail all official ballots” to each qualified voter FLA STAT § 101 6102 same KAN STAT ANN § 25-432 vote-by-mail only in certain elections MD CODE ANN § 9-501 same MO REV STAT § 115 652 same MONT CODE ANN § 3-19-104 same WYO STAT ANN § 22-29-115 same 87 See e g NEB REV STAT § 32-960 certain counties can apply to conduct all-mailed ballot elections and upon approval must mail ballots to registered voters I DAHO CODE § 34-308 state may designate precincts with fewer than a certain number of voters as vote-by-mail only N EV REV STAT § 293 213 same N M STAT ANN § 1-6-22 1 same MINN STAT § 204B 45 state may designate municipalities with fewer than a certain number of voters may as vote-by-mail only jurisdictions N J STAT ANN § 19 62-1 same 88 See e g NAT’L STATE CONF OF LEGISLATURES States With No-Excuse Absentee Voting May 1 2020 https www ncsl org research elections-and-campaigns vopp-table-1-states-with-no-excuseabsentee-voting aspx 89 Id 90 Id 91ALA SEC’Y OF STATE Absentee Voting During State of Emergency Mar 18 2020 https www sos alabama gov sites default files SOS%20Emergency%20Rule%20820-2-3- 06 01ER pdf 92 GA SEC’Y OF STATE Raffensperger Takes Unprecedented Steps to Protect Safety and Voter Integrity Page 24 of 38 directive to county elections commissions to send postage pre-paid absentee ballot requests to all registered voters in the upcoming primary election on June 9 93 Similarly New Hampshire’s Secretary of State issued guidance that for all upcoming elections in 2020 all voters “have a reasonable ground to conclude that a “physical disability” exists and therefore all voters can request an absentee ballot on that basis 94 Virginia’s Governor clarified that to protect the health of voters during the COVID-19 outbreak voters may choose the “disability or illness” excuse to vote absentee for the June primary election—this was the subject of a court challenge 95 Earlier on April 11 2020 Virginia’s General Assembly passed a bill permitting any registered voter to vote absentee without an excuse beginning July 1st 96 Delaware’s Governor similarly issued an executive order expanding the excuses under state law so voters who are in self-isolation or quarantine related to COVID19 can vote by mail 97 Missouri Tennessee and Kentucky are the subject of lawsuits by national civil rights groups including the Lawyers’ Committee 98 These lawsuits seek expansions of the states’ excuse-only absentee voting laws during the COVID-19 crisis 99 These lawsuits request the respective courts to order relief expanding the in Georgia Apr 20 2020 https sos ga gov index php elections raffensperger_takes_unprecedented_steps_to_protect_safety_a nd_voter_integrity_in_georgia 93 W VA SEC’Y OF STATE Eligibility for Absentee Voting in West Virginia Apr 1 2020 https sos wv gov FormSearch Elections Informational Absentee%20Voting%20Eligibility%20Summ ary pdf 94 N H SEC’Y OF STATE Memorandum Re Elections Operations During the State of Emergency Apr 10 2020 https www nhpr org sites nhpr files 202004 covid-19_elections_guidance pdf 95 VA OFF OF GOVERNOR Executive Order 59 Apr 24 2020 https www governor virginia gov media governorvirginiagov executive-actions EO-59-PostponingMay-5 -2020-General-and-Special-Elections-to-May-19 -2020-Due-to-Novel-Coronavirus- COVID19 pdf Governor Northam’s Executive Order survived a court challenge brought by plaintiffs who argued among other things that expanding vote by mail “usurped the role of the legislature ” Curtin v Va State Bd of Elections No 1 20-cv-00546-RDA-IDDT at 6 E D Va May 29 2020 The court denied the case on laches grounds and Virginia will have no-excuse absentee voting beginning July 1 Id at 9–10 96 See Va Legislative Information System 2020 Session Va Acts § 24 2-700 97 DEL OFF OF GOVERNOR Sixth Modification to State of Emergency Mar 24 2020 https governor delaware gov wp-content uploads sites 24 2020 03 Sixth-Modification-to-State-ofEmergency-03242020 pdf 98 Mo State Conf of the NAACP v State No 20AC-CC00169 Mo 19th Cir Ct May 19 2020 appeal docketed No SC98536 Mo May 20 2020 Memphis A Phillip Randolph Inst v Hargett No 3 20-cv-00374 M D Tenn filed May 1 2020 Collins v Adams No 3 20-cv-00375 W D Ky filed May 27 2020 see also Lewis v Hughs No 20-0394 Tex Sup Ct May 27 2020 Bailey v Andino No 27975 S C Sup Ct May 27 2020 dismissing case because legislature passed Act No 133 § 2A 2020 S C Acts ___ allowing all eligible voters to cast absentee ballot 99 Compl State Conf of NAACP v Missouri Cole Cty Cir Ct Mo filed Apr 17 2020 Compl Memphis A Phillip Randolph Inst v Hargett No 3 20-cv-00374 M D Tenn filed May 1 2020 Page 25 of 38 states’ absentee statutes to all voters in upcoming state local and the November general elections either by construing existing statutory language to cover the pandemic situation or seeking a “no excuse” vote-by-mail option under a constitutional right to vote theory 100 The Missouri Supreme Court has granted relief 101 In Tennessee the Court denied plaintiff’s claim regarding signature verification but the case remains pending with regard to the first time voter restriction 102 In Kentucky the plaintiffs agreed to the dismissal of the lawsuit after the State agreed to change election procedures to address plaintiff’s concerns 103 As many experts and advocates have recognized voting by mail is not a solution for all voters Not only is it necessary to expand absentee voting but it also must be done in a fair and equitable manner I will now discuss additional reforms to create equitable vote-by-mail systems that work for everyone during the pandemic c Complexity of Multi-Step Vote by Mail Process In many states absentee voting is a complex multi-step process Voters shoulder the burden of requesting absentee ballots most states require that voters make the request in writing procuring postage to mail absentee requests waiting to receive the ballot in the mail voting the ballot and mailing it back to boards of elections Ohio serves as an example Even though Ohio has no-excuse vote by mail i e anyone can vote by mail the multi-step process of voting by mail begins with a written request for an absentee ballot 104 While the Secretary’s website has online absentee ballot applications the law makes clear that the application has to be in writing ruling out submissions by email or phone Unless the voter owns a printer the only way a voter can obtain an absentee ballot application is to request one from his or her board or visit local libraries or print shops to print out an application During the primary election this request process presented challenges to many voters particularly low-income voters who lack access to printers postage or envelopes 105 When Ohio cancelled its March 17th primary election and transitioned to vote-by-mail-only and moved the election to April 28th voters could not navigate Compl Collins v Adams No 3 20-cv-00375 W D Ky filed May 27 2020 100 See id 101 State Conf of NAACP v Missouri No SC98536 Mo 2020 102 Memphis A Phillip Randolph v Hargett No 3 20-CV-00374 2020 WL 5095459 M D Tenn August 28 2020 103 Collins v Adams No 3 20-cv-00375-CRS W D Ky August 27 2020 State of Emergency Relating to Kentucky Elections Ex Order 2020-688 Aug 14 2020 https www sos ky gov elections Documents 2020GeneralElection EO-GeneralElection pdf 104 OHIO REV CODE § 3509 03 105 See e g Pls ’ Mot TRO 6–8 League of Women Voters Ohio v LaRose No 2 20-cv-01638-MHWEPD E D Ohio Mar 31 2020 ECF No 4 Page 26 of 38 the complex multi-step absentee voting process in time to get their voted ballots back to their election boards 106 The turnout statistics comparing the 2016 primary and the 2020 primaries are telling While the number of registered voters went up by 2 8% from 2016 to 2020 voter turnout decreased from 43 7% in 2016 to 23 6% in 2020 107 Absentee ballot procedures must be eased to permit election officials to mail absentee ballots to all registered voters not just those on permanent absentee lists While states should ideally send out ballots to all registered voters if they do require applications or requests voters should be offered more options for requesting absentee ballots This includes requesting absentee ballots online by email or by phone if the state requires voters to request a ballot States must provide pre-paid postage for all election-related mailings including absentee ballot requests d Burdensome Notary and Witness Requirements Too many states require absentee voters to notarize their voted ballots or sign their ballots in the presence of one or two witnesses above eighteen years 108 During the pandemic notaries’ offices have been closed making it difficult for voters in those states to vote by mail In addition given social distancing guidelines many voters could not find witnesses without risking their health or the health of loved ones In response to the pandemic civil rights groups have challenged notary and witness requirements in Missouri Virginia South Carolina Louisiana and Alabama among other states 109 These lawsuits seek orders that require the Id at 15–18 OHIO SEC’Y OF STATE Voter Turnout in Primary Elections Even https www sos state oh us elections election-results-and-data historical-election-comparisons voterturnout-in-primary-elections-even last visited June 1 2020 OHIO SEC’Y OF STATE 2016 Primary Elections Results Voter Turnout by County https www ohiosos gov elections election-results-anddata 2016-official-elections-results last visited June 1 2020 OHIO SEC’Y OF STATE 2020 Elections Results Voter Turnout by County https www sos state oh us elections election-results-anddata 2020 last visited June 1 2020 108 See e g ALA CODE § 17-9-30 b ballot signed by two witnesses or notarized A LASKA STAT § 15 20 203 ballot signed by witness MISS CODE ANN § 23-15-641 application and ballot notarized MO REV STAT § 115 279 ballot notarized MINN STAT § 203B 121 ballot certification notarized or signed by witness who is Minnesota registered voter N C GEN STAT § 163A-1310 ballot signed by two witnesses or notarized OKLA STAT ANN TIT 26 § 14-107 ballot notarized R I GEN LAWS § 17-20-23 ballot signed by two witnesses or notarized S D CODIFIED LAWS § 12-1910 application oath notarized public officer or voter ID S C CODE § 7-15-220 ballot signed by witness Note this list is not exhaustive 109 See e g Compl O’Neill v Hosemann No 3 18-cv-00815 S D Miss Filed Nov 21 2018 League of Women Voters of Va v Va State Bd of Elections No 6 20-CV-00024 2020 WL 2158249 W D Va May 5 2020 Thomas v Andino No 3 20-CV-01552-JMC 2020 WL 2617329 D S C May 25 2020 Compl Power Coal v Edwards No 3 20-cv-00283-BAJ-EWD M D La May 7 2020 Compl 106 107 Page 27 of 38 respective states to lift notary and witness restrictions for reasons above Virginia has entered into a partial settlement agreeing to lift the restriction 110 A federal judge in South Carolina ruled the witness requirement a burden on voters’ fundamental right to vote in the primary election 111 The other cases are pending During the pandemic witness and notary requirements must be lifted so absentee voters are not disenfranchised e Discrepancies in Signature Matching Signature matching is another method that states use to verify the identities of absentee voters Signature matching however is fraught with errors 112 These procedures give elections officials unfettered discretion to reject ballots with signature discrepancies Experts agree that signature matching is far from scientific Factors such as age physical and mental condition disability stress accidental occurrences inherent variances in neuromuscular coordination and stance when the voter signs account for differences in signature 113 Signature matching laws also disproportionately impact voters of color 114 During the 2018 primary election one Georgia county Gwinnett County was responsible for 40% of the statewide rejections Gwinnett County officials rejected 713 absentee ballot applications 185 because of signature mismatch 437 because required information was missing 7 because the elector was found to be disqualified and 84 because the elector chose to vote in person during early voting 115 This became the basis for the Lawyers’ Committee’s successful legal challenge in Martin v Kemp In that case a federal court ordered that county officials could not reject ballots because of perceived signature mismatches without providing voters pre-rejection notice and an opportunity to cure 116 Most states do not provide guidance uniform standards or training to election officials on how to go about matching signatures The process therefore is ad hoc and discretionary up to each individual county election official’s judgment People First of Ala v Merrill No 2 2020cv00619 N D Ala May 1 2020 110 Consent Decree 1–2 League of Women Voters of Va 2020 WL 2158249 W D Va May 5 2020 ECF No 35 111 Thomas v Andino No 3 20-CV-01552-JMC 2020 WL 2617329 D S C May 25 2020 112 Saucedo v Gardner 335 F Supp 3d 202 212 D N H 2018 113 Saucedo 335 F Supp 3d at 217–18 Fla Democratic Party v Detzner No 4 16CV607-MW CAS 2016 WL 6090943 at 7 N D Fla Oct 16 2016 La Follette v Padilla 2018 WL 3953766 at 1 Cal Super Ct Mar 5 2018 114 Daniel A Smith Vote-By-Mail Ballots Cast in Florida ACLU FLA 3 22 Sept 19 2018 https www aclufl org sites default files aclufl_-_vote_by_mail_-_report pdf 115 Order Pls ’ Prelim Inj Mot 32 –33 Martin v Kemp No 1 18-cv-04789-LMM N D Ga Oct 24 2018 ECF No 28 116 Id Page 28 of 38 Many states have adequate safeguards in place to verify a voter’s identity including by requesting that the voter submit identification at the application and ballot stages making signature matching redundant in some instances More reliable verification procedures than signature matching should be used in this process at a minimum use of signature matching should be subject to uniform standards 117 f Postal Service Performance A well-funded efficient and functioning postal service is a key ingredient for vote by mail The U S Postal Service is currently underfunded and underresourced particularly given the additional challenges posed by delivering mail and packages during a pandemic 118 This presents a major problem for absentee voters who may not be able to rely on the postal service Voters of color rural voters senior citizens and people with disabilities shoulder the burdens of a postal service that could have fiscal challenges maintaining existing routes through November absent additional support from Congress 119 This is why it is critical for Congress to provide the full $89 billion in support requested by the Postal Service leadership to ensure that this vital government service continues in its present form past the end of September 120 g Lack of Access to Language Assistance Language access and literacy issues can compound these problems since a ballot mailed to a voter in a language he or she cannot speak or read is effectively useless Jurisdictions that are required to provide language assistance under Michigan’s Secretary of State issued guidance on uniform standards for signature matching procedures for absentee applications and ballots as a result of a legal challenge—states can use this guidance as a blueprint for creating uniform standards See Priorities USA v Benson 2020 WL 1433852 E D Mich Mar 24 2020 Secretary Benson instructs clerks to presume that the signature is valid and a voter’s signature is only considered questionable “if it differs in multiple significant and obvious respects from the signature on file Slight dissimilarities should be resolved in favor of the voter whenever possible ” See Bill Theobald Democrats Win Another Voting Victory in a Swing State THE FULCRUM Apr 22 2020 https thefulcrum us voting democrats-win-another-votingvictory-in-a-swing-state 118 Tonya Mosley Samantha Raphelson U S Postal Service Stands to Suffer Huge Losses From Coronavirus Pandemic WBUR Apr 21 2020 https www wbur org hereandnow 2020 04 21 uspostal-service-losing-money Allison Pecorin Postal Service Says It’s Going Broke Due To Pandemic Trump Flatly Opposes Emergency Aid ABC Apr 13 2020 https abcnews go com Politics postalservice-broke-due-pandemic-trump-flatly-opposes story id 70119153 119 Nicholas Fandos Jom Tankersley Coronavirus is Threatening One of Government’s Steadiest Services The Mail N Y TIMES Apr 9 2020 https www nytimes com 2020 04 09 us politics coronavirus-is-threatening-one-of-governmentssteadiest-services-the-mail html action click module RelatedLinks pgtype Article 120 LEADERSHIP CONF ON CIVIL AND HUMAN RIGHTS Congress Must Provide Robust Funding for the United States Postal Service May 6 2020 https civilrights org resource congress-must-providerobust-funding-for-the-united-states-postal-service #_ftn13 117 Page 29 of 38 Section 203 of the Voting Rights Act must ensure that any vote-by-mail system provides effective language assistance at every stage of the voting process 121 Voters with limited English proficiency may think English-only election materials that are mailed to them are junk mail and discard them or it could take additional time to receive translation assistance from family members 122 These voters may not be familiar with voting by mail and not know how to obtain absentee ballot applications Voters may not be able to navigate the Internet or may not have computers or Internet connections to download applications 123 For Georgia’s June 9th primary election Gwinnett County Georgia did not mail applications in Spanish despite the county being covered by Section 203 of the Voting Rights Act An analysis of absentee ballot requests conducted with data current through May 4 2020 revealed that Hispanic voters accounted for only 3% of active registrants who successfully requested a mail ballot despite making up 9% of registered voters 124 By comparison white voters accounted for 65 7% of active registrants who successfully requested a mail ballot despite making up 40 5% of active registered voters 125 Moreover the return rate of those ballots for Hispanic voters was only 3 2% whereas for white voters the rate was 15 2% nearly five times greater 126 This is not a problem limited to a small subset of voters There are 10 933 043 U S citizens comprising 4 8% of all U S citizens who speak English less than “very well ”127 Jurisdictions should not be permitted to ignore or circumvent Section 203 of the Voting Rights Act they must ensure that counties properly translate vote-bymail ballots so language minorities can fill out ballots in their native languages h Difficulties Returning Ballots Many states require that voters return their absentee ballots either by mail or in person to boards of elections—and a handful allow voters to drop off their ballots at drop boxes 128 Delays in postal service delivery due to inadequate funding 52 U S C § 10503 28 C F R § 55 2 b Pl ’s Mot for Prelim Inj 6–7 Ga Ass’n of Latino Elected Officials v Gwinnett Cty Bd of Registration and Elections No 1 20-cv-01587 N D Ga filed Apr 20 2020 ECF No 17-1 123 Id at 7–8 124 Decl Michael McDonald 4 Ga Ass’n of Latino Elected Officials v Gwinnett Cty Bd of Registration and Elections No 1 20-cv-01587 N D Ga filed May 4 2020 ECF No 30-1 125 Id at 4–5 126 Id at 5 127 U S CENSUS BUREAU Table S1601 Language Spoken at Home ” Data Set 2018 ACS 5-Year Estimates Available at https data census gov cedsci table t Language%20Spoken%20at%20Home tid ACSST5Y2018 S16 01 hidePreview false accessed June 1 2010 128 NAT’L CONF OF STATE LEGISLATURES “Returning a Voted Absentee Ballot” in Voting Outside the Polling Place Absentee All Mail and Other Voting at Home Options May 19 2020 https www ncsl org research elections-and-campaigns absentee-and-early-voting aspx#permit 121 122 Page 30 of 38 can lead to delays in delivering absentee ballots The in-person option is also limited if voters have to travel to their boards of election to drop off completed ballots For Native American voters who live on reservations they often cannot rely on the postal service or live too far from their county commissions to return absentee ballots in person 129 More options must be provided secure ballot drop boxes or repositories in rural areas and on reservations Voters can drop off their ballots in these boxes before the deadline to receive voted ballots This would to some extent alleviate transportation-related issues Additionally some states impose unnecessary limitations on who can collect and deliver a ballot for a person and on how many ballots a person can collect and deliver 130 Georgia’s law is narrow It permits a family member or a person who resides in the same household as a disabled voter to personally return the voter’s ballot to the county elections board 131 Alabama does not allow anyone other than the voter to return his or her own absentee ballot by mail or in-person delivery at their respective boards of elections 132 In the pandemic there are many people who are house-bound and may not have a family member readily available to undertake the task of collecting and delivering the voter’s ballot Or a household may have several family members who rely on a single friend or relative to undertake such tasks Limitations on the collecting and delivering of ballots should be reasonable such as not restricting the task to family members and not limiting the number of ballots that can be collected and delivered too restrictively i Criminal Penalties Associated with Vote by Mail Education Some states place criminal penalties on voter engagement activities Tennessee makes it a Class A misdemeanor for anyone other than members of election commissions to distribute unsolicited absentee ballot requests to voters 133 As part of voter education campaigns among communities that have never before voted by mail civic organizations would pass out absentee applications share the link to the online application form on their websites or help community members write their own requests NATIVE AM RIGHTS FUND Vote by Mail in Native American Communities https www narf org vote-by-mail last visited June 2 2020 130 NAT’L CONF OF STATE LEGISLATURES Who Can Collect and Return an Absentee Ballot Other than the Voter Apr 21 2020 https www ncsl org research elections-and-campaigns vopp-table-10-whocan-collect-and-return-an-absentee-ballot-other-than-the-voter aspx 131 GA CODE ANN § 21-2-385 132 ALA CODE § 17-11-9 133 TENN CODE ANN § 2-6-204 c 4 129 Page 31 of 38 Tennessee’s provision violates the First Amendment right to free speech and expression The First Amendment as applied to the states through the Fourteenth Amendment prohibits an abridgment of the freedom of speech This statute restricts core political speech and expressive conduct by criminalizing the simple act of providing to a voter an unsolicited absentee ballot request The Lawyers’ Committee and its partners have challenged this provision among others in federal court The lawsuit is pending 134 States should not be permitted to criminalize voter education and engagement around absentee ballots especially during a pandemic when more voters will vote by mail 3 Safe In-Person Voting Options Most Americans vote in-person Indeed for some communities voting by mail is not a viable option For example vote by mail presents hurdles for Native American voters living on tribal lands where they do not have mail delivery or pick-up at their homes Because of the lack of traditional addresses reservation residents may not receive mail at their homes and either pay to maintain a post office box in a nearby town or receive their mail by general delivery at a trading post or other location Some reservation residents have to travel up to seventy miles in one direction to receive mail The Navajo Nation the largest reservation in the United States does not have an addressing program and most people live in remote communities 135 Thus it is essential to provide not only the broadest possible vote-by-mail options during the pandemic but also an expansion of safe in-person options State and local officials must make any necessary modifications to polling place site locations and administration to ensure that open polling places have adequate sanitary supplies to prevent transmitting the virus During the cancelled March 17th Ohio primaries there were numerous problems getting poll workers gloves masks sanitizer and wipes due to supply shortages 136 This failure to Memphis A Phillip Randolph Inst v Hargett No 3 20-cv-00374 M D Tenn filed May 1 2020 See generally THE NATIVE AM VOTING RIGHTS COAL Voting Barriers Encountered by Native Americans in Arizona New Mexico Nevada and South Dakota Jan 2018 https www narf org wordpress wp-content uploads 2018 01 2017NAVRCsurvey-results pdf discussing the barriers to voting including lack of access to mail service lower trust in voting by mail and non-traditional addresses 136 Rick Rouan Is It Enough Gloves Wipes Finger Sleeves Issued to Franklin County Poll Workers COLUMBUS DISPATCH Mar 16 2020 https www dispatch com news 20200316 is-it-enough-gloveswipes-finger-sleeves-issued-to-franklin-county-poll-workers Scott Wartman Ohio Gov Mike DeWine 75 Polling Places to Move Due to Coronavirus CINCINNATI ENQUIRER Mar 9 2020 https www cincinnati com story news politics 2020 03 09 election-workers-responding-coronavirusconcerns 5000924002 Seth A Richardson County Boards of Elections Sending Hand Sanitizer 134 135 Page 32 of 38 provide appropriate protective supplies and cleaning products increased the risk of transmission for both voters and poll workers States should follow guidance issued by the CDC which advises sick poll workers to stay home regular cleaning of high touch surfaces disinfecting potentially contaminated surfaces such as voting machines and other equipment and frequent hand washing and sanitizing 137 States should reconfigure polling places to adhere to “social distancing” protocols creating more space between voting booths poll workers and voters standing in line a Polling Place Adjustments and Impacts on People of Color Last-minute polling place consolidations and closures disproportionately impact African American and other voters of color especially during the pandemic Wisconsin serves as a prime example April 7th marked the height of the public health crisis in Wisconsin—African Americans made up almost 50% of Milwaukee County’s COVID-19 cases and 81% of COVID-19 deaths 138 Days before the April 7th Wisconsin primary election the Milwaukee Election Commission decreased the number of polling locations from 180 to five citing public health concerns 139 In contrast Madison had sixty-six polling locations open Sixty-one percent of Milwaukee’s voters are African American and 30% are Hispanic 140 The poll closures in Milwaukee thus impacted mostly African American and Hispanic voters These voters had no choice but to risk their lives by voting in person or not voting at all Officials did not provide any other viable alternatives for voting Voters who went to the polls to vote on Election Day experienced long lines delays and high risk of exposure to the virus On April 2nd a federal district judge extended the deadline to receive absentee ballots to six days after Election Day 4 p m on April 13 extended the deadline for boards to receive absentee ballot requests until April 3 and lifted the requirement that voters provide a witness affirmation or statement 141 The Seventh Disinfectant Wipes to Polling Locations as Coronavirus Precaution CLEVELAND PLAIN DEALER Mar 5 2020 https www cleveland com open 2020 03 county-boards-of-elections-sending-hand-sanitizerdisinfectant-wipes-to-polling-locations-as-coronavirus-precaution html 137 CTRS FOR DISEASE CONTROL AND PREVENTION Recommendations for Election Polling Locations Mar 27 2020 https www cdc gov coronavirus 2019-ncov community election-pollinglocations html 138 Shruti Banerjee Dr Megan Gall COVID-19 Silenced Voters of Color in Wisconsin DEMOS May 14 2020 https www demos org blog covid-19-silenced-voters-color-wisconsin 139 Mary Spicuzza Alison Derr Why Did Wisconsin Have Just 5 Polling Places Alderman Wants Answers MILWAUKEE J SENTINEL Apr 10 2020 https www jsonline com story news politics elections 2020 04 10 coronavirus-milwaukee-aldermenwant-answers-polling-places-primary-election 5127577002 140 Banerjee Gall supra note 138 141 Mot Prelim Inj 4 Democratic Nat’l Comm v Bostelmann No 3 20-cv-00249-wmc W D Wis Page 33 of 38 Circuit Court of Appeals granted a partial stay reversing the lower court’s decision to overturn the witness verification on absentee ballots 142 The United States Supreme Court in a 5-4 decision overruled the district court’s ruling holding that last-minute changes to Wisconsin’s election administration would be disruptive and instead instituted an Election Day April 7th postmark deadline for absentee ballots while retaining the lower court’s receipt deadline of April 13th 143 The dissent pointed out that the majority’s decision stood to disenfranchise thousands of voters who could not vote in person on Election Day because of reasonable health risks Justice Ginsburg wrote “Either they will have to brave the polls endangering their own and others’ safety Or they will lose their right to vote through no fault of their own That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens the integrity of the state’s election process and in this most extraordinary time the health of the nation ” 144 Wisconsin’s primary election fiasco illustrated how unprepared election officials were to conduct an inclusive election during the pandemic 145 Polling place consolidations caused long lines the entire city of Milwaukee only operated five polling locations and many voters did not receive absentee ballots before the Election Day deadline 146 Wisconsin health officials have directly traced at least seventy-one confirmed cases of COVID-19 to in-person voting that occurred during the April 7 2020 election and a University of Wisconsin and Ball State University study found a “statistically and economically significant association” between inperson voting the spread of COVID-19 after the election 147 The poll consolidations disproportionately impacted voters of color with a study finding average voter turnout in African American and Hispanic wards in Milwaukee at only 18% compared to white wards which had an average voter turnout of 49% 148 Overall turnout in Wisconsin’s 2020 presidential primary dropped significantly from 2016 falling from 47% to 34% though it was up from 26% in 2012 and about the same in Apr 2 2020 142 Stay Pending Appeal 4 Democratic Nat’l Comm v Wis State Legis No 20-1539 7th Cir Apr 3 2020 143 Republican Nat’l Comm v Democratic Nat’l Comm 140 S Ct 1205 1206–07 2020 144 Id at 1211 Ginsburg J dissenting 145 Outside of the litigation on April 6 Governor Evers issued an executive order moving the election to June 9 Republicans in the state legislature characterized the order as “constitutional overreach” and challenged it in state court They also asked the Supreme Court to block the District Court order extending the deadline for absentee ballots The legislators asserted that the extension fundamentally altered the nature of the election 146 Wisconsin Primary Recap Voters Forced to Choose Between Their Health and Their Civic Duty N Y TIMES Apr 7 2020 https www nytimes com 2020 04 07 us politics wisconsin-primaryelection html 147 Chad D Cotti et al The Relationship Between In-Person Voting Consolidated Polling Locations and Absentee Voting on Evidence from the Wisconsin Primary NAT’L BUREAU OF ECONOMIC RESEARCH May 2020 https www nber org papers w27187 pdf 148 Shruti Banerjee Dr Megan Gall COVID-19 Silenced Voters of Color in Wisconsin DĒMOS May 14 2020 https www demos org blog covid-19-silenced-voters-color-wisconsin Page 34 of 38 2008 at 35% 149 However unlike past years interest in this election was likely buoyed by a competitive Wisconsin Supreme Court election and a huge spike in absentee ballot voting up to 71% from 14% in April 2019 150 b Early In-Person Voting One of the most sensible steps to take to reconcile the tension between ensuring voters’ health and allowing them to exercise their right to vote is to expand the days and hours of early in-person voting In essence expanding early voting opportunities serves to “flatten the curve ” by spreading out the number of voters over a longer period of time thus reducing the need for poll workers at any given time reducing the number of people that poll workers and voters will have contact with facilitating social distancing and ultimately reducing the number of in-person voters on Election Day In addition more African Americans tend to take advantage of early inperson voting opportunities as compared to white voters 151 In the North Carolina 2016 primary election 33 8% African American voters voted early in-person as compared to 27 7% white voters That trend continued in the 2018 primary election with 33 1% African American voters and 28 2% white voters voting early in-person In the 2020 primaries 35 7% African American voters voted early in-person as compared to 35 2% white voters 152 Because of the COVID-19 pandemic more voters regardless of race voted early in-person in the 2020 primary election as compared to the 2016 primary election 153 Miles Parks In The End The Voters Responded’ Surprising Takeaways from Wisconsin’s Election NAT’L PUB RADIO Apr 15 2020 https www npr org 2020 04 15 834037566 in-the-endthe-voters-responded-surprising-takeaways-from-wisconsin-s-election 150 Id 151 See e g Russell Weaver Sonia Gill Early Voting Patterns by Race in Cuyahoga County Ohio A Statistical Analysis of the 2008 General Election Voting Rights Research Br LAWYERS’ COMM FOR CIVIL RIGHTS UNDER LAW 2 6 Oct 2012 http www acluohio org wpcontent uploads 2014 08 NAACPV Husted-MPIEx8-2014_0630 pdf data showed census tracts with heavier African American populations voted early in-person Report concluded that cutting early inperson voting would disproportionately impact African American voters Paul Gronke Am Decl pp 3–6 ¶¶ 6–11 pp 9–11 ¶¶18–26 in Florida v United States 820 F Supp 2d 85 D D C 2011 concluding Florida’s omnibus election administration changes truncating early voting period among other things violated Section 5 of the Voting Rights Act with discriminatory effect on minority voters N C State Conf of NAACP v McCrory 831 F 3d 204 231–37 4th Cir 2016 noting new election administration provisions reducing the number of early voting would disproportionately impact African American voters increase traffic on Election Day and increase long lines on Election Day 152 These figures were compiled from North Carolina’s publicly available statewide voter history file https s3 amazonaws com dl ncsbe gov data ncvhis_Statewide zip and statewide voter file https s3 amazonaws com dl ncsbe gov data ncvoter_Statewide zip 153 AP Staff Early In-Person Voting in NC Exceeds Primary 4 Years Ago A P Mar 2 2020 https apnews com 10b3399d722456ad12848849b76a0157 149 Page 35 of 38 Congress should mandate that all states provide at least two full weeks of early in-person voting in federal elections during the pandemic until a vaccine is widely available and accessible to all people in the country 154 VI Cost of Necessary Elections Measures During this uniquely challenging time states simply lack sufficient resources to run elections without additional federal support State and county budgets are hemorrhaging due to the many unexpected expenses of addressing the economic and health care crises presented by the pandemic and they are in dire need of federal assistance to supplement their own spending efforts When Congress appropriated the $400 million to states in March in the CARES Act all fifty states applied for grants demonstrating the tremendous need for the federal government to help states help themselves A recent report from the Alliance for Securing Democracy the Brennan Center for Justice R Street Institute and the University of Pittsburgh Institute for Cyber Law Policy and Security found that federal funding covers just ten to twenty percent of what is needed to provide vital election safeguards during the pandemic 155 The 2020 primary elections and upcoming general election present states and local election administrators with significant tasks Officials must simultaneously build the infrastructure and staffing levels to expand safe in-person voting and also expand vote-by-mail systems They are faced with surging turnout and surging requests for absentee ballots Budgets are stretched thin CARES Act funding was minimal and is now depleted In order to properly prepare for the November elections Congress must allocate at least an additional $3 6 billion needed to supplement the $400 million in funding previously allocated in the CARES Act 156 This funding should be allocated without the requirement that states provide a percentage match Such a requirement would prevent many states that are most affected by COVID-19 from accessing federal support because they simply do not have the money in their budgets during a recession with record unemployment rates rapidly falling state revenues and increased strain on public and government services and resources The Brennan Center for Justice “Brennan Center” has estimated that enhancements to vote-by-mail systems alone will require up to $1 4 billion to meet LEADERSHIP CONF CIVIL AND HUMAN RIGHTS Letter to Congress Urging Additional Funding for Elections Assistance in Response to COVID-19 Apr 13 2020 https civilrights org resource letterto-congress-urging-additional-funding-for-election-assistance-in-response-to-covid-19-2 155 C Deluzio et al Ensuring Safe Elections April 30 2020 at 1 156 See LEADERSHIP CONF CIVIL AND HUMAN RIGHTS Letter to Congress Urging Additional Funding for Elections Assistance in Response to COVID-19 Apr 13 2020 https civilrights org resource letter-to-congress-urging-additional-funding-for-election-assistance-inresponse-to-covid-19-2 154 Page 36 of 38 the costs in the general election The costs estimated are for ballot printing postage drop boxes electronic absentee ballot requests ballot tracking staffing for processing more mailed-in ballots enhanced technology for signature verification high-volume mail processing and high-speed ballot scanners 157 The Brennan Center has also estimated costs for in-person voting measures in the general election These measures—safe polling places per public health guidance adequate polling place staffing and voting wait-time tools to ensure social distancing and avoid clustering during an early-voting period —will amount to $271 4 million The Brennan Center estimates that $252 1 million is needed in the general election for voter education and $85 9 million is needed to develop and bolster online voter registration for the general election 158 However these solely reflect costs for the general election The Voting Rights Task Force of the Leadership Conference on Civil and Human Rights co-chaired by the Lawyers’ Committee estimates that state and local governments need at least twice this amount in funding to administer remaining primaries and begin preparations for the general election—$3 6 billion in addition to the $400 million already allocated There is strong bipartisan support from state and local officials for additional federal funds to be used in preparation for coming elections This is illustrated by a recent hearing of the U S Election Assistance Commission as well as in submitted letters and statements A key consensus point in the statements by election officials is that they have used the majority of CARES Act funding—and additional funds are needed for this year’s remaining elections 159 Election officials also stress the spike in use of mail ballots the anticipated record high turnouts and the additional pandemic related expenditures such as for PPE and for public education 160 Lawrence Norden et al Estimated Costs of COVID-19 Election Resiliency Measures BRENNAN CTR Mar 19 2020 https www brennancenter org our-work research-reports estimated-costscovid-19-election-resiliency-measures 158 Id 159 Election Assistance Commission Public Hearing U S Election Assistance Commission Lessons Learned From The 2020 Primary Elections Jul 8 2020 https www eac gov events 2020 07 08 public-hearing-us-election-assistance-commission-lessonslearned-2020-primary It should also be noted that many election offices make payments to vendors at the end of the year so what they have on hand now may not be conclusive 160 Paul Pate R-IA Iowa Secretary of State Jul 8 2020 https www eac gov events 2020 07 08 public-hearing-us-election-assistance-commission-lessonslearned-2020-primary 1 16 49-1 17 54 Jared Dearing D Executive Director Kentucky State Board of Elections Jul 8 2020 https www eac gov events 2020 07 08 public-hearing-us-electionassistance-commission-lessons-learned-2020-primary 1 17 54-1 19 15 Lynn Bailey Executive Director Board of Elections in Richmond County Georgia Jul 8 2020 https www eac gov events 2020 07 08 public-hearing-us-election-assistance-commission-lessonslearned-2020-primary 1 19 24-1 21 24 Dianna Moorman Director of Elections James City County Virginia Voter Registration and Elections Jul 8 2020 https www eac gov events 2020 07 08 public-hearing-us-election-assistance-commission-lessonslearned-2020-primary 1 23 50-1 27 00 Georgia Association of Voter Registrar’s and Election 157 Page 37 of 38 VII Conclusion As a nation we are facing one of the greatest challenges to our democracy in the midst of a global pandemic and recession that is disproportionately impacting African Americans and other people of color There are few moments in our history where our democracy has been in more peril and when the stakes for participation for people have been as high Congress should provide $3 6 billion in additional funding for state and local elections this year which is a lifeline for our democracy and vital to protecting public health as COVID-19 continues to ravage communities across the nation Protecting our democracy also requires certain minimal standards for voters including at least two weeks of early voting and modernized no excuse absentee voting by mail as described throughout this testimony as well as restoration of the postal service This is absolutely critical to ensure equal access to the ballot for African Americans and other people of color as well as to ensure the safe and efficient administration of state local and the General Election in November Thank you for your leadership in safeguarding our most fundamental right—the right to vote Officials Jul 2 2020 https www brennancenter org sites default files 202007 Letter_from_the_Georgia_Association_of_Voter_Registrars_and_Election_Officials pdf Bryan K Barnett R-MI Mayor Rochester Hills Michigan President United States Conference of Mayors Jun 15 2020 Bryan K Barnett Congress Don't let safe elections fall victim to COVID19 HILL Jun 15 2020 https thehill com opinion campaign 502735-congress-dont-let-safeelections-fall-victim-to-covid-19 Bipartisan Election Officials Funding Letter Mar 31 2020 Last updated May 13 2020 https docs google com document d 1pRLWoFqj5NXz05PqJjbXSnn3rmPPWPvtHqdW1KZ3_ck mobil ebasic urp gmail_link Page 38 of 38