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William & Mary Law School | Election Law Society

Author: Election Law Society (page 1 of 80)

Mississippi: Masks, Mandates, and Mail-In Voting

By Catrina Curtis

Mississippi finds itself in an odd position going into this important Election Day amidst the COVID-19 pandemic: it is the only state to have allowed its statewide mask mandate to expire and the only state that is not offering early or mail-in voting for all of its citizens. 

The Magnolia State is one of only five states that will not offer no-excuse absentee voting for this November’s election, even as the vast majority of states have expanded their mail-in voting options due to health and safety concerns. However, among the five states not offering no-excuse absentee voting, Mississippi is the only state also not offering early voting. Although the Mississippi Legislature passed an amendment this summer to allow for those quarantining due to COVID-19 or those caring for someone with COVID-19 to vote by mail, the Mississippi Supreme Court recently held that the amendment does not also allow for those with pre-existing conditions at a greater risk of COVID-19 to vote absentee, striking down a lower interpretation of the amendment that was appealed by the Secretary of State. 

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The Prepopulated Paper Chase: Joel Miller’s Battle Over Absentee Ballot Request Forms

By Zee Huff

This is part I on coverage of Iowa’s absentee ballot application dispute; see part 2 here.

Imagine: You’re the auditor for Linn County, Iowa. It’s a warm summer morning. After a June primary which saw record turnout— and a surge in absentee voting — you’re trying to figure out how best to serve the citizens of your county. Drop boxes outside your office and the Public Services Building were a hit, with citizens voting up until 9 p.m. on Election Day. There are ways to help your constituents, and you’ll find them.

Your name is Joel Miller, and you’re about to have a hell of a summer.

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Retweet: Colorado Secretary of State Urges Careful Election Night Reporting

By Anna Pesetski

In a Twitter thread on October 1, Colorado Secretary of State Jena Griswold encouraged news outlets to abstain from reporting the results of the presidential election on the night of the election. In her tweets, Griswold stated that this is an “unprecedented election” and “call[ed] on national media networks to pledge to #PressPause for democracy” by refraining from making projections or reporting results on election night. She quickly received backlash for these statements from both sides of the political spectrum. Fox News host Laura Ingraham, a conservative, stated that “[i]t’s not up to her to say what the media or anyone else says on election night.” Colorado state senator Steve Fenberg, the Democratic majority leader, tweeted “[t]his will only cause mass confusion and creates an opening for reckless behavior from the President. Demanding journalists to withhold verifiable facts or rational projections is counter to how a free democracy works.” 

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U.S. District Court Changes South Carolina Absentee Ballot Witness Requirement

September was an eventful month for South Carolina’s absentee voting laws. On September 16, 2020, the Governor of South Carolina signed into law the state legislature’s bill H5305, which, in effect, permits all registered voters in South Carolina to vote by absentee ballot for the November 3, 2020 General Election. On September 18, 2020, the United States District Court for the District of South Carolina, Columbia Division, issued a preliminary injunction against the South Carolina State Election Commission (“SCEC”) in Middleton v. Andino, No. 3:20-CV-01730-JMC (D.S.C. Sept. 18, 2020). The court enjoined the SCEC from enforcing South Carolina law requiring another person to witness an absentee voter’s signature on the absentee ballot envelope for the November 2020 general election. South Carolina law requires absentee voters to sign an oath on their absentee ballot envelope in the presence of a witness, who must also sign and provide their address on the ballot envelope. Additionally, Section 7-15-420 of the South Carolina Code provides that an absentee ballot “may not be counted unless the oath is properly signed and witnessed.” Section 6(a) of the recently passed H5305 bill provides that the absentee ballot envelopes will be examined “in accordance with the requirements of Section 7-15-420.”

There are three reasons that the district court in Middleton reached the right result in issuing the preliminary injunction.

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The Fifth Circuit Got it Wrong: Last-Second Burdens on Voting Should be Prohibited

The conjunction of the COVID-19 pandemic and the 2020 election has wrecked legal and electoral chaos in the state of Texas. In July, in order to accommodate the large amount of individuals filing for mail-in-ballots, Governor Abbott issued several proclamations, permitting voters to turn in their mail-in-ballots in person not only on election day but for the entire early voting period. 

In response, several of Texas’s most populous and geographically dispersed counties set up multiple drop-off locations where voters could turn in their mail-in-ballots. This allowed voters to turn in their mail-in-ballots without having to travel far, wait in long lines, and risk exposure to COVID-19. In effect, the counties sought to realize the whole purpose of allowing mail-in-ballots: to avoid exposure to COVID-19. 

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Schrödinger’s Citizens: The Trouble with Territorial Disenfranchisement

By Scott Meyer

According to a 2017 poll, nearly half of Americans were unaware Puerto Ricans were U.S. citizens. This discrepancy seems to bely the fact that U.S. territories, of which Puerto Rico is the largest, constitute over three and a half million U.S. citizens, have some of the highest military enlistments per capita, and even pay some federal taxes. However, despite over a century of combined history as U.S. territories, their citizens still lack one of the foundations of American democracy: the right to vote in presidential elections.

The reasoning for territories’ disparate treatment comes from Supreme Court rulings from the early nineteen-hundreds, which became known as the Insular Cases. As Justice Kennedy succinctly explained in Boumediene v. Bush: “[i]n a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State.” The Court then noted the delicate balance between imputing constitutional rights to territories versus respecting their existing laws, a tension which could result in confusion and instability. To this end, the Insular Cases Court came up with “…the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”

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No No-Excuse Absentee Voting in the Magnolia State

By Catrina Curtis

While the entire country will vote in an important presidential election in November, Mississippians will also vote on significant state ballot measures, such as legalizing medical marijuana, approving a newly designed state flag, and repealing a Jim Crow-era election law. However, because Mississippi has not fully relaxed its mail-in voting requirements, despite the ongoing COVID-19 pandemic, there is fear that not enough has been done to protect Mississippians’ ability to vote in such a crucial election. 

One driving force behind the fear of strict absentee voting in Mississippi is the state’s large black population. Mississippi has the highest black population in the country, at 37.8%, and COVID-19 disproportionately affects minorities. Some believe the state is particularly failing to protect both its minorities’ health and voice in this year’s critical election. Late this summer, the Lawyers’ Committee for Civil Rights Under Law along with the Southern Poverty Law Center and the American Civil Liberties Union of Mississippi, along with the Mississippi Center for Justice, filed separate lawsuits on behalf of Mississippi plaintiffs. Both suits, one at the state level and one at the federal level, allege that the state is failing to adequately protect Mississippians’ constitutional right to vote during the current pandemic. 

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2020 Forces “SeaChange” in Maryland’s Election Administration

When your state electorate increases its number of mail-in ballots cast by something like 1556% cycle-over-cycle, you might run into some problems. Take it from Maryland, where nearly 1.5 million voters cast their ballots by mail in this year’s presidential primary, compared with just over 80,000 combined votes by absentee/provisional ballot in the 2016 primary. Maryland is not Oregon or Washington, states experienced in administering largely vote-by-mail elections, in which mailed ballots account for some 97% of those cast. Pre-Covid Maryland required no excuse from voters who wished to vote by mail, but the practice was rare. Historically, in-person voting accounts for 90% of Maryland’s ballots cast. The 2016 general election set the previous record for “ballots sent” to requesting voters: Marylanders requested approximately 226,000 ballots and returned roughly 177,000. By contrast, the State mailed nearly 3.6 million ballots for the June 2nd primary, and voters returned almost 1.5 million of them. Continue reading

Learning from Lawsuits: How Kentucky’s top officials adapted to satisfy voter complaints

By Cameron Newton

When the dust settled following the contentious 2019 elections in Kentucky, each of the commonwealth’s major executive offices—save for the governorship—was won by the Republican candidate. While the election of Andy Beshear brought control of the Governor’s Mansion back into Democratic hands, perhaps the night’s most shocking result came as Michael Adams, an election lawyer with a history in Republican politics, upset former Miss America Heather French Henry in the race for Secretary of State. No thinking observer would have anticipated emerging election policy to be anything but crafted and contested along rigid ideological boundaries.

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Coming To A Stadium Near You: Ballot Drop Boxes Facilitate Early Voting In California’s 2020 General Election

By: Samuel Petto

Visitors to California’s Staples Center will soon be greeted by more than lines of cheering fans for the latest Lakers game. For the first time in its history, the Staples Center will serve as a vote center in the upcoming November election. It will also be a designated vote by mail drop box location for those who prefer to drop off their mail-in ballot provided by the L.A. County Registrar’s office.

The absentee ballot drop box is an increasingly popular option for voters hoping to cast completed mail-in ballots without using the mail. While some states have successfully used ballot drop boxes for years, the coronavirus pandemic has expanded the practice throughout the United States as election officials express concern about the U.S. Postal Service’s capacity to deliver ballots on time. Although some states still prohibit the use of ballot drop boxes due to the risk of voter fraud, localities across California–from Los Angeles to Sacramento–are preparing for voters to cast ballots in record numbers via this method.

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