NBC – Do you have to request an absentee ballot application, or will one be sent to you automatically? Will your ballot be counted if the mailman is late? If you fill out your absentee ballot wrong, can you fix it?
Questions like these — the fine print of democracy when it comes to mail voting — are at the heart of a record-breaking, high-dollar legal war being waged in courtrooms nationwide, fueled by the coronavirus that’s upended the idea of holding a presidential election as usual and by President Donald Trump’s constant warnings about widespread voter fraud that no one can prove exists.
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"This is clearly a historic high," Trevor Potter, the former commissioner and chairman of the Federal Election Commission and now president of the Campaign Legal Center, a nonprofit watchdog, said of the sheer number of lawsuits tied to vote by mail. "It would have been a contentious fall without the pandemic, but the pandemic changes everything because it has caused so many states to revisit how they vote."
Substantive change to voter access in multiple states all at once is rare, but this year, officials have pushed to make mail voting easier to help protect people from the coronavirus. Plenty of these changes are happening in the courts — many state legislatures are out of session — as state officials, advocates and partisans duke it out over how to adapt existing election laws to fit a pandemic.
NBC News has reviewed more than 175 suits in 43 states and the District of Columbia contesting everything from whether postage must be prepaid on absentee ballots to where you can vote and how ballots can be legally transported from voters’ hands to election officials. It’s litigation that will decide who can vote in the 2020 presidential election and how, and advocates fear it will perpetuate and exacerbate racial biases that have long been baked into the voting system.
Democrats say they’re trying to make sure every vote counts, and voting rights advocates are raising the alarm that the expansion of existing absentee and mail voting systems could create widespread disenfranchisement and discrimination unless done correctly.
Republicans argue that last-minute election changes in the courts are improper and create opportunities for voter fraud and foreign interference, despite the fact that there is no evidence of widespread fraud and experts say foreign meddling in mail voting is extremely unlikely. The Republican National Committee (RNC) is litigating in 17 states, backed by a joint budget with the Trump campaign of $20 million earmarked for election-related legal fights and a small army of Election Day poll watchers and attorneys. The Republicans have repeatedly stepped in to defend against suits from advocacy and voting rights groups seeking to adapt election laws to pandemic realities. Justin Riemer, the RNC's chief counsel, told Axios that the legal work is "on steroids this year."
Much of voting rights advocates' litigation is aimed at lowering the absentee ballot rejection rates that have skyrocketed during the primaries.
As many as 64 percent of Americans are expected to vote by mail this year, according to a group of researchers at Harvard, Northeastern and Rutgers universities, as well as the Harvard Medical School, and the litigation currently winding its way through the courts could affect millions of ballots.
“We have this romantic notion that American democracy was designed for American participation. It is not. At its inception, our democracy was that Blacks were not human, Native Americans did not exist, women were to be silent,” said Stacey Abrams, founder of the voting rights advocacy group Fair Fight, which has gone to court in Georgia and is organizing voter protection efforts. “We’ve had to pass three constitutional amendments to have something that approaches actual participation. The flaw in each of those amendments is that it delegates administration to the states.”
And in that administration, advocates and academics alike see discriminatory effects in mail voting systems.
"If you were to design a system that would enfranchise voters that are older and white — at the expense of voters who are younger and more diverse — in many states you would adopt the existing voting laws," Marc Elias, Democrats' top elections attorney, told NBC News. He's working on dozens of lawsuits in 17 states this year.
Here’s what’s at the heart of the suits, and what could change about the rules surrounding vote by mail.
Ballot deadlines
A late ballot is the No. 1 reason an absentee ballot is rejected in America, according to data published in the Election Administration and Voting Survey from 2018 and 2016. In the primary elections, hundreds of thousands of ballots have already been rejected for this reason. The Post Office has reportedly warned state officials that on-time delivery cannot be relied on for mail elections in 46 states and D.C.,including the 2020 battlegrounds Pennsylvania, North Carolina, Nevada, Michigan, Minnesota, Texas and Arizona.
Most states require that election officials receive mailed ballots by a certain time on Election Day, but advocates have sued to get officials to count ballots postmarked on or before Election Day in more than a dozen states.
Fights over ballot receipt deadlines are ongoing in key 2020 battlegrounds, including Wisconsin, Pennsylvania and Georgia. In Minnesota, a court ruled that ballots postmarked on or before Election Day will count — Republicans appealed and the case is ongoing. In Arizona, the state agreed in a settlement to do more voter education and outreach, and to expand early voting to counteract the effects of the deadline. In Michigan, a state Supreme Court declined to hear advocates' case.
In Pennsylvania, the state responded to a ballot deadline lawsuit by asking the court to extend the deadline to receive postmarked ballots by three days, pointing to a letter from the Post Office saying there was a strong risk of delayed mail service of ballots.
Elias said that by sheer numbers, it’s the most consequential reform states can undertake and pointed to a case he won during Wisconsin’s April primary as a prime example.