With Election Day two weeks away amid a pandemic, efforts to prepare for an unprecedented number of mail-in ballots have spawned more than 300 election-related lawsuits .
And more are expected in the aftermath of the Nov. 3 tallies, according to a Stanford University tracker. Voting laws vary from state to state and elections are largely administered by counties or municipalities, and with many state legislatures out of session in the run-up to the election, fights over last-minute changes are taking place in the courts.
Washington, which has allowed absentee voting since 1991 and adopted a universal vote-by-mail system in 2011, has had decades to work out the wrinkles other states are now rushing to address, and Spokane County’s top election official said lawsuits are an inevitable part of that process.
“We’ve been through this in the past in Washington,” Spokane County Auditor Vicky Dalton said. “This is just part of the maturing process for vote-by-mail or heavy absentee in the rest of the nation. Any time you introduce procedures and policies that are different from how it’s always been in the past, it takes time to work through that, and sometimes the way that’s done is by going to court.”
Most of the COVID-related lawsuits have to do with mail-in voting, while others contend with extending registration deadlines and in-person early voting. At issue is the balance between making voting accessible while keeping it secure. Democrats are worried about voter suppression and Republicans of potential fraud. Meanwhile, voting experts say the bigger risk is large numbers of ballots being rejected because they arrive late or haven’t been properly completed.
“This is a moment when every voter in the country is living with a global pandemic,” said Tammy Patrick, a senior advisor for elections at the nonpartisan Democracy Fund. “There are certain things that election officials, both Republicans and Democrats, have tried to do to service their voters well in this moment, and far too often those best practices of administering an election are being called into question in the courts.”
About three-quarters of voters are eligible to vote by mail this year . Here’s how Washington handles some of the big issues being litigated around the country.
Ballot drop boxesThere are generally two ways to cast a mail-in ballot: through the mail or by depositing it in an official ballot drop box. Concerns over Postal Service delays have made drop boxes more relevant than ever, prompting a spate of lawsuits seeking to expand or restrict their use.
In Ohio and Texas, GOP officials moved to limit the boxes to one per county, including several counties with more than a million residents each. Competing lawsuits over the legality of those moves are ongoing in both states, with just days remaining for voters to decide how to cast their ballots.
A federal judge in Pennsylvania threw out a lawsuit filed by the Trump campaign and the GOP that sought to block the use of drop boxes, citing a lack of evidence for their claim of potential fraud. California is facing a different controversy after the state GOP installed unofficial drop boxes that state officials say are illegal, prompting a cease-and-desist letter from Democratic officials Oct. 12.
Washington voters can put their ballots in some 500 drop boxes around the state, including 25 in Spokane County. Secretary of State Kim Wyman, a Republican, has said the state’s more than 25 years of experience with drop boxes have shown them to be secure and reliable. Dalton, a Democrat, said they are an essential part of election infrastructure.
“You’ve got to have ways for the envelopes to flow. You have to have collection points to receive those envelopes,” Dalton said. “To have just one delivery point per county, at that point it’s not functional from a processing perspective, and that is truly difficult for me to understand.”
“Ballot harvesting”After California officials reprimanded the GOP for its unofficial drop boxes, the Republicans accused the Democrat-controlled state government of hypocrisy, pointing to a 2016 law that lets individuals collect an unlimited number of ballots from voters, a practice opponents call “ballot harvesting.” In North Carolina, a GOP operative was indicted for an illegal ballot collection operation that resulted in a 2018 House election being overturned.
In Michigan and Nevada, Republicans have sued over laws similar to California’s, worried that Democrats – who have requested far more mail-in ballots than Republican voters – could benefit from ballot collection efforts. Meanwhile, proponents argue not allowing the practice makes voting harder, especially for voters concerned about leaving home amid the pandemic.
Washington has no law against collecting ballots from others, but Dalton said state election officials strongly discourage the practice, since even with the best intentions it can lead to ballots not being submitted.
“Regardless of the motivation and intent,” Dalton said, “the issue that this creates is a lack of security for those ballots. Maybe those ballots will arrive, maybe they won’t.”
Wyman’s office proposed legislation in January that would make failing to submit another person’s ballot a class-C felony, but the bill has so far failed to advance in the Legislature.
“(If) a voter gives their ballot to someone they don’t know or to a group collecting ballots, there’s no guarantee to that voter the person’s going to turn the ballot in for them,” Wyman said. “I’ve always been concerned with that vulnerability.”
When ballot processing can beginIn Pennsylvania and Wisconsin – both key swing states – state laws prevent mail-in ballots from being processed before Election Day. That means counting votes in two states that could decide the presidential election likely will take several days. President Donald Trump has suggested votes should not be counted after Nov. 3 and refused to commit not to declare victory early, putting pressure on states to count votes quickly.
In Florida, another swing state, the state GOP has sued to stop a majority-Democrat county from counting ballots early.
In Washington, Dalton said, machines allow officials to scan ballots as soon as they’re received, speeding the counting process that can’t begin until polls close, according to state law.
Security envelopes and “naked ballots”To comply with laws that protect a voter’s privacy, mail-in ballots are typically supposed to be inserted in a second, “security” envelope inside the mailing envelope. In Pennsylvania, the state Supreme Court ruled in September that ballots submitted without the internal envelope would be void, although so-called “naked” ballots were counted in the state’s June primary. That ruling came after competing lawsuits filed by the Trump campaign and the state Democratic Party.
In Washington, naked ballots are still counted. To protect voter privacy, Wyman said, election workers insert such ballots into blank envelopes.
“We don’t want to disenfranchise a voter because they made a mistake,” Wyman said. “Let’s face it, if somebody has filled out a ballot, put it in an envelope, signed the envelope and returned it, there was some intent there by the voter to have their ballot counted.”
Delivery deadlines vs. postmark deadlinesOne of the most consequential voting rules has to do with when a mail-in ballot must be received in order to be counted. Most states’ laws require ballots to be received by election officials before polls close on Nov. 3, but amid concerns over mail delays, Pennsylvania’s Supreme Court ruled Sept. 17 that ballots received by the Friday after Election Day should be counted. GOP lawmakers in the state have asked the U.S. Supreme Court to overturn the state court’s ruling.
In Washington, however, ballots are counted as long as they are either postmarked or left in an official drop box by 8 p.m. Nov. 3.
Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.
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