State of Elections

William & Mary Law School | Election Law Society

No Voter Left Behind? The Quiet Disenfranchisement of Native Americans

By Scott Meyer

The U.S. Department of the Interior’s Bureau of Indian Affairs website contains a list of frequently asked questions. Among them, “[d]o American Indians and Alaska Natives have the right to vote?” The simple answer, yes, belies the complex relationship between the indigenous peoples of North America, and the United States.

In 1924, the U.S. passed the Snyder Act, which entitled Native Americans born in the U.S. to full citizenship. Ostensibly the 15th amendment, which was passed more than fifty years earlier and granted U.S. citizens the right to vote, combined with the Snyder Act should have allowed Native Americans to vote. In practice, since the Constitution delegated to the states the administration of elections, several decades passed after the Snyder Act before Native Americans actually received national suffrage. The final two holdouts were Utah and North Dakota, which granted “on-reservation Native Americans the right to vote in 1957 and 1958, respectively”. However, even after gaining the right to vote, Native Americans faced many of the same challenges employed against African-Americans to stymie their votes. The passage of the Voting Rights Act (VRA), often associated with protecting African-American voters, also benefitted many American Indians who lived in covered states or counties, such as Alaska and Arizona. For decadesNative Americans filed lawsuits relying on the 14th and 15th amendment and various sections of the VRA to “gainequal access to election procedures and to have an equal opportunity to elect candidates of their choice.”

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Delaware’s Emergency House Bill: Is It Junk Mail (Updated)?

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By: Andrew Jeacoma

On July 1, 2020, Delaware Governor John Carney signed House Bill 346 (“HB 346”) into law. HB 346—as a response to COVID-19—grants all Delaware citizens the ability to vote by mail in the upcoming 2020 general election. The bill is a departure from the constitutional rule of voting-by-mail established by Article V, Section 4A  of Delaware’s Constitution, which limited mail-in-voting to those who qualified under an exhaustive list.

In response to HB 346, The Republican State Committee of Delaware (the “RSC”) filed a complaint on August 19, 2020, against the state of Delaware Department of Elections and its commissioner, Anthony J. Albence. In their complaint, the RSC framed HB 346 as unconstitutional for three principle reasons: first, it goes against the already established constitutional rule governing absentee ballots. Second, in passing HB 346 the General Assembly impermissibly sought to amend the constitution. Third, the universal voting by mail envisioned by HB 346 has numerous practical problems that result in voter disenfranchisement. See here for a more thorough report on RSC’s complaint.

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Indiana’s Noon Absentee Deadline: Election Officials Report Slow Counting, but No Major Problems

By Emma Merrill

Many Indiana voters were alarmed by Indiana’s voting procedures during the state’s June 2, 2020 primary election—Indiana’s first attempt at a statewide election during the COVID-19 pandemic. “I just got completely disenfranchised,” one voter reported after confronting a polling place that lacked the resources to deal with unprecedent mail-in voter turnout. Another Hoosier described Indiana’s election system as “completely overwhelmed.”

Indiana state law mandates that mail-in ballots must be received by noon on Election Day to be counted. Ind. Code § 3-11.5-4-3. In the run-up to Indiana’s primary, Indiana Democrats lobbied the Republican state administration to extend Indiana’s noon deadline for absentee ballots—to no avail. While Republican Governor Eric Holcomb did issue an Executive Order that shifted the primary date from May 3 to June 2, state Republicans refused to change the absentee ballot deadline’s noon requirement. Ultimately, over ten times as many Indiana voters used mail-in absentee ballots compared to the 2016 presidential primary. The surge in absentee voting resulted in processing and delivery delays for approximately 1800 voters’ mail-in ballots in Marion County, home to a significant community of minority voters. The state election system failed to cope with the pandemic, and voters were disenfranchised as a result.

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The Cost of an Absentee Ballot

By Timmer McCroskey

Be honest, when was the last time you went to the post office? For me, it’s been at least six months since I physically went into any post office. With the ability to buy postage labels online and drop off packages in blue boxes located throughout my town, I rarely need to go into a physical location. Next question, do you have stamps on hand? I do, but only because I try to send my Grandma a card every month. For many people, especially in rural Wyoming, the post office isn’t a frequent stop on the errand list and not everybody has a reason (or funds) to purchase stamps. However, to mail in an absentee ballot in Wyoming, you are required to place the correct amount of postage on the envelope. Wyoming is one of 33 states that does not pay for the return postage of an absentee ballot.

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I voted but it didn’t count–How Florida mail-in ballot problems could disenfranchise thousand of voters

By: Sayo Aweomoni

With the prevalence of COVID–19, it is no doubt that the 2020 presidential election will look very different from any other election America has ever had. As more citizens become concerned for their health and safety, states are set to experience an unprecedented number of voters casting mail in ballots during the upcoming presidential election, but as more people vote by mail, there is a risk of having a large number of ballots go uncounted. These concerns are exacerbated in swing states like Florida, where there is a long history of high rejection rates for mail in ballots.


According to election law experts, people voting for the first time by mail are more likely to make mistakes that could lead to their votes being rejected. As the amount of people choosing to vote by mail increases this year, two provisions in particular – the 7 p.m. election night deadline and a signature-match requirement – could lead to disenfranchisements of thousands of Floridians, more specifically black and Hispanic citizens, if the state refuses to make efforts to accommodate for the current health crisis. During the primaries alone, an estimated 18,000 mail in ballots were rejected in Florida for missing the deadlines or for errors including a mismatch with the signature on file. Despite the pandemic, which left many people scared to go out to public gatherings, polling places without poll workers and several other difficulties, the state still refused to relax these requirements. In a battleground state like Florida, where outcomes could be determined by only a few votes, consequences like this could make a huge difference in determining who emerges as the victor. In the primaries, experts also found that minority voters were more likely to vote by mail for the first time this year and they were twice as likely to have their votes rejected in comparison to white voters. The same outcome is also expected for the general election.  

In an effort to ensure that the pandemic does not disenfranchise minority citizens, civil rights organizations in Florida filed a suit against Florida’s Governor Ron DeSantis and Secretary of State Laurel M. Lee, demanding accommodations to the state’s election procedure in response to the pandemic. Some of the proposed remedies in the updated complaint include extending the deadline to return a vote-by-mail ballot, expanding the use of drop boxes for vote-by-mail ballots, extending the time period to cure issues with vote-by-mail ballots, and expanding the days, hours, and locations for early voting in each county. The settlement reached in that case will ultimately “increase access to voter registration, require the state to inform citizens of their options in casting a vote-by-mail ballot, encourage Supervisors of Elections (SOEs) to use funding options to provide prepaid postage for mail-in ballots, and require the Secretary of State to develop and execute a public relations campaign to inform voters of their options in casting a ballot, especially among communities of color, college-aged voters and seniors.”

Although some progress was made with this settlement, Florida still has a long way to go in protecting the votes of thousands of Floridians for this upcoming general election. A further suggestion to protect this franchise for Floridian voters is to expand the window of receipt for mail in ballots by enacting a grace period to receive and count mail in votes, as this would go a long way in protecting tens of thousands of votes. 

To reduce the number of mail-in ballots that could potentially be rejected, everyone has to play their part. Although some Florida voters may be lax about their responsibility to sign their ballots and mail in out in time, the government is ultimately responsible for protecting the integrity of the election, and they possess the power to make accommodations and create reasonable flexibility to promote a free and fair election.

Supreme Court Overturns Lower Courts’ Rulings on South Carolina’s Absentee Ballot Witness Requirement

On October 5, 2020, the Supreme Court stayed the South Carolina Federal District Court’s September 18, 2020 order enjoining the South Carolina State Election Commission (“SCEC”) from enforcing the state’s witness requirement for absentee ballots. The witness requirement refers to South Carolina law that requires another person to witness an absentee voter’s signature on the absentee ballot envelope for the November 2020 general election. The law requires the witness to sign the absentee ballot envelop and provides that noncompliant absentee ballots “may not be counted.” However, the Supreme Court’s order granted a narrow exception for ballots if they were cast before the Court issued this stay and were “received within two days” of the order.

It would have been helpful if the Court’s majority had explained the rationale behind its order, given that it overturned both the district court and the Fourth Circuit, which had refused to stay the district court’s preliminary injunction when it considered the matter en banc. The only rationale in the Court’s opinion was provided by Justice Kavanaugh, who concurred with the majority based on “two alternative and independent reasons.” However, as shown below, Kavanaugh’s reasons alone do not seem to provide adequate justification for issuing the stay.

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The Drop Box Dilemma Part II

By Nicholas Matuszewski

On October 8, U.S District Judge Aaron Polster overruled the one drop box per county limit imposed by Frank LaRose, Ohio’s Republican Secretary of State.

Judge Polster focused his ruling on the fact that 15% of Cincinnati and Cleveland’s population would have to travel over 90 minutes to vote. Of those 15%, most are poor minorities; many of whom may not even have the means to travel that far and would potentially be forced to utilize crowded public transportation and risk endangering their health during the pandemic.

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Who’s Afraid of the MVA? Frivolous Lawsuits and Election Law

By: Zee Huff

How much do you know about election administration? A layperson could be forgiven for having more personal problems to concern themselves with. There are only so many free hours in the day for the average American worker and, in an ideal world, election administration could be left to election administrators. It’s their job.

However, there are times when citizens must get their hands dirty, either because the state is unable to, or more frequently, unwilling to protect their rights as voters. The classic examples? Voter suppression, racial gerrymandering, intimidation at the polls—efforts to make it harder for certain citizens to exercise their right to vote. Our country has a long and difficult history with ensuring the right to vote for all citizens. So, why would any citizen want to object to efforts to make it easierto cast a vote?

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Ballot Collection Limitation Law Struck Down by Montana Courts

By Cody McCracken

As occurs every few years, this past November millions of people cast their votes for a wide range of offices. However, a major difference this year was that many of these voters cast their ballots in a way they may have never done so before—by mail. The ongoing COVID-19 pandemic has forced nearly all states to expand their absentee voting and early voting procedures. Yet, even before COVID, voters in Montana routinely voted well before election day.

While not a fully mail-in voting state, such as Washington and Oregon, Montana has robust mail and early voting accommodations that a majority of voters take advantage of. In Montana’s 2018 general election, 73 percent of the votes cast were by absentee ballot sent in before election day.

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Small Problem, Big Fight: Saving the Unsinged Ballot in Arizona

By: Megan Kelly

What happens when the state receives an unsigned mail-in ballot? This is the question that new and contentious litigation in the District Court of Arizona is seeking to answer. Last week, a district judge held that unsigned ballots in Arizona were to be afforded the same five-day curing period that other unidentifiable ballots—from mismatched signatures or lack of voter ID—are given. 

We may ask how frequently people are really mailing in unsigned ballots. In 2018, Arizona rejected about 3,000 unsigned ballots. This number is small, but in an increasingly competitive purple state, a small number of votes can make the difference. 

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