By Dale Ho, Director of the ACLU Voting Rights Project
2020 has been an unprecedented year in many ways; a pandemic during a presidential election being one of them. Not unique to 2020, however, is politicians’ and states’ systematic efforts to suppress voting and disenfranchise Americans. But the ACLU, along with our affiliates and partners across the country, have been hard at work defending your right to vote. This year, we have won 27 victories in 20 states and Puerto Rico that will safeguard the voting rights of millions of Americans this November. Together, these states are home to more than 154 million Americans and wield 247 votes in the Electoral College.
No one should have to choose between their health and their vote, and yet states insisted on limiting access to early voting and voting by mail and played politics with peoples’ lives during a global pandemic. Voting by mail is a common-sense and secure solution to protect our health, which is why officials from both parties in a wide range of states expanded voting by mail to all voters in their states.
1. Voting Safely During the Pandemic
Eligibility to Vote by Mail
When the pandemic started, 34 states had laws permitting all eligible voters to cast their ballots by mail in November — leaving 16 that didn’t. We sued and and helped ensure that five of these 16 states expanded vote-by-mail eligibility to all voters for the general election:
- Missouri: In May, citing a lawsuit filed by the ACLU and the ACLU of Missouri, the Missouri legislature expanded access to vote by mail to all voters during 2020 due to COVID-19, and eliminated the state’s notary requirement for high-risk voters. The litigation is ongoing to ensure no voter has to risk their health to obtain a notary signature. The ACLU and the ACLU of Missouri brought the case on behalf of the NAACP of Missouri, the League of Women Voters of Missouri, and several individuals.
- Alabama: In June, the ACLU and the ACLU of Alabama joined a lawsuit, on behalf of several Alabama voters and the Black Voters Matter Capacity Building Institute, brought by the NAACP Legal Defense and Educational Fund, the Southern Poverty Law Center, and the Alabama Disabilities Advocacy Program, to ensure all Alabama voters could vote by mail. A month later, in July, the Alabama secretary of state declared that all registered Alabama voters could no-excuse absentee vote this year by selecting the “physical illness or infirmity” excuse on their application.
- Connecticut: On July 31, after the ACLU and the ACLU of Connecticut sued on behalf of the Connecticut NAACP, the League of Women Voters of Connecticut, and an individual voter, the state passed a bill permitting every eligible voter to vote absentee using the “sickness of COVID-19” as a valid excuse.
- Kentucky: In August, the state of Kentucky agreed to let all eligible voters vote by mail due to the pandemic, and dropped several requirements that would have put the state’s voters at dire and unnecessary risk in order to cast a ballot in 2020, including a strict photo ID requirement that would have increased Kentuckians’ risk of COVID-19 exposure by forcing them to visit ID-issuing offices to exercise their right to vote. The ACLU, the ACLU of Kentucky, the Lawyers’ Committee for Civil Rights Under Law, and Covington & Burling LLP brought the lawsuit on behalf of the League of Women Voters of Kentucky, the Louisville Urban League, the Kentucky State Conference of the NAACP, and several individuals.
- South Carolina: In September, after the ACLU, the ACLU of South Carolina, and NAACP Legal Defense and Educational Fund sued, the South Carolina legislature passed a bill to expand access to vote by mail to all eligible voters for the 2020 election.
Now, a total of 45 states are permitting all eligible voters to vote by mail in November. Only five states are restricting access to vote-by-mail to certain voters.
We also helped expand voting by mail eligibility in Tennessee and Puerto Rico:
- Tennessee: In August, the Tennessee Supreme Court ruled that every eligible voter with underlying medical conditions placing them at risk of severe illness or death from COVID-19, and those caring for people with underlying illness, can vote by mail. The ACLU, the ACLU of Tennessee, and Dechert LLP brought the case on behalf of several Tennesseans whose health would be at risk if forced to vote in person while COVID-19 is spreading, including a two-time cancer survivor.
- Puerto Rico: In September, a federal court ruled that every Puerto Rico resident over the age of 60 can vote early or by mail in this election. The ACLU, the ACLU of Puerto Rico, and Paul, Weiss, Rifkind, Wharton & Garrison LLP brought the case on behalf of Puerto Rico residents who are over 60 and want to vote safely, either by absentee ballot or early voting to avoid crowds.
Witness Signature Requirements for Voting by Mail
When the pandemic started, about a dozen states had outdated laws requiring voters casting their ballots by mail to have someone as a witness when they complete their ballots and provide a witness signature. Such requirements pose a risk to voters’ health and safety during the pandemic, and do nothing to enhance elections integrity. We sued and and helped eliminate such requirements in four states:
- Virginia: In May, a federal court approved a partial settlement to remove Virginia’s witness requirement for voters who believe their health would be at risk due to COVID-19 if forced to comply. The agreement was extended for the November elections in August. The ACLU and ACLU of Virginia brought the case on behalf of the League of Women Voters of Virginia and several individuals.
- Rhode Island: In August, the U.S. Supreme Court rejected the Republican National Committee’s request to block Rhode Island from eliminating witness/notary requirements for vote by mail in 2020 due to the COVID-19 pandemic. The ACLU, the ACLU of Rhode Island, the Campaign Legal Center, and the law firm Fried Frank brought the case on behalf of two voting rights advocacy groups: Common Cause Rhode Island and the League of Women Voters Rhode Island.
- Minnesota: In August, the state of Minnesota agreed to eliminate the witness requirement. The ACLU, the ACLU of Minnesota, and Faegre Drinker LLP sued on behalf of the NAACP and individual voters, seeking to make voting safer in Minnesota in the midst of this pandemic.
- Alaska: On October 12, alongside the Native American Rights Fund, the Lawyers Committee for Civil Rights, and the ACLU of Alaska, we won a ruling from the Alaska Supreme Court, blocking Alaska’s witness signature requirement for the general election. We represent the Arctic Village Fund, the League of Women Voters of Alaska, and several individual voters in this case.
Other Barriers to Voting
In addition to the cases above, we won victories in four states regarding other unnecessary barriers to voting:
- Pennsylvania: In September, the Supreme Court of Pennsylvania ruled that state law allows county bureaus of elections to set up drop boxes and satellite offices to accept mail and absentee ballots. The ACLU, the ACLU of Pennsylvania, the Lawyers’ Committee for Civil Rights Under Law, the Public Interest Law Center, and the law firm Wilmer Hale joined an existing case on behalf of the Black Political Empowerment Project, Common Cause Pennsylvania, the League of Women Voters of Pennsylvania, Make the Road Pennsylvania, and three voters.
- Minnesota: In September, the state agreed to mail absentee ballot applications to registered voters for the November general election, making it easier for Minnesota voters to vote safely in the midst of this pandemic.
- Montana: In September, a Montana judge overturned a state law that would’ve severely restricted the right to vote for Native Americans. In Montana, the majority of individuals vote by mail, and rural tribal communities often work with get-out-the-vote organizers who collect and transport ballots to election offices that would otherwise be inaccessible. These ballot collection efforts are often the only way Native Americans can access the vote. But the Montana Ballot Interference Prevention Act (BIPA) effectively ended the practice of ballot collection and assistance efforts, and would have disenfranchised Native American voters en masse. The ACLU, the ACLU of Montana, and the Native American Rights Fund successfully brought this lawsuit on behalf of Western Native Voice and Montana Native Vote, Native American-led organizations focused on getting out the vote and increasing civic participation in the Native American community; and the Assiniboine & Sioux Tribes of Fort Peck, Blackfeet Nation, Confederated Salish and Kootenai Tribes of the Flathead Reservation, Crow Tribe, and Fort Belknap Indian Community.
- Wisconsin: In September, a federal court ordered the state to immediately provide temporary free IDs to voters who need them for purposes of satisfying the state’s strict voter identification requirement, and better public education regarding how to obtain a free ID before the November election.
- Alabama: After a two-week trial, a federal court held that the Alabama Secretary of State’s ban on curbside voting violated the Americans with Disabilities Act and the Constitution, and enjoined it for the November election.
2. Voter Registration and Voter Rolls
Voter Registration Opportunities for Public Assistance Clients
The National Voter Registration Act (NVRA), often referred to as the “motor voter” law, requires states to offer voter registration at the DMV. Unfortunately, it is all too common for states to neglect or ignore the NVRA requirements. For years, the ACLU has brought litigation nationwide to ensure compliance with the NVRA. Our investigations and successful advocacy with partner organizations this year resulted in millions of public assistance clients receiving a voter registration opportunity.
- Arizona: In January, the State of Arizona agreed to provide more effective voter registration services to individuals who update their driver’s license or state ID address in person at a Motor Vehicle Department office or online through the Service Arizona portal. As part of the settlement, Arizona mailed voter registration cards to more than 450,000 people. The ACLU, the ACLU of Arizona, Demos, the Lawyers Committee for Civil Rights Under Law, and the law firm Bryan Cave Leighton Paisner LLP brought the case on behalf of the League of Women Voters of Arizona, Mi Famila Vota and Promise Arizona.
- Kansas: After investigations by the ACLU, the ACLU of Kansas, and Demos, the state of Kansas agreed to mail voter registration applications to more than 270,000 clients of the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and the Low Income Energy Assistance Program (LIEAP).
- Michigan: After investigations by the ACLU and the ACLU of Michigan on behalf of Detroit Disability Power and Street Democracy, the state of Michigan agreed to mail approximately 345,000 voter registration applications to Medicaid clients.
- North Carolina: The ACLU and the ACLU of North Carolina partnered with the Southern Coalition for Social Justice and the Lawyers Committee for Civil Rights to successfully advocate for the mailing of voter registration applications to more than 1.2 million Medicaid clients.
- Virginia: The ACLU and ACLU of Virginia partnered on advocacy to ensure that more than 410,000 Medicaid and SNAP clients received voter registration forms from the state.
Overall, thanks to advocacy by the ACLU and our partner organizations, almost 3 million public assistance clients in these five states have received voter registration applications in the mail.
Unnecessary Barriers to Voter Registration
Restricting the terms and requirements of registration is one of the most common forms of voter suppression. Types of restrictions include requiring documents to prove citizenship or identification, or onerous penalties for voter registration drives.
- Kansas: In April 2020, a federal appeals court ruled that a Kansas law requiring people to show documents to prove their citizenship when they register to vote violated the National Voter Registration Act, and the U.S. Constitution. The law, which had been crafted by former Kansas Secretary of State Kris Kobach, had prevented 31,000 Kansans from registering to vote. The ACLU, the ACLU of Kansas, and Dechert LLP filed the lawsuit in 2016 on behalf of several individual voters and the Kansas League of Women Voters.
- Tennessee: In April, Tennessee lawmakers repealed onerous restrictions previously enacted in a 2019 law that sought to restrict and impose harsh penalties on community voter registration efforts. The law was passed in the wake of a surge in voter registrations prior to the 2018 midterm election. However, instead of providing necessary resources to help election offices process the influx, state lawmakers passed a measure that created criminal and civil penalties against those who were unable to comply with onerous new requirements. The measure threatened to curtail or completely suspend the efforts of key voter registration groups across the state. The ACLU, the ACLU of Tennessee, the Campaign Legal Center, the Fair Elections Center, and the law firm of Sherrard, Roe, Voigt, Harbison challenged the measure in a federal lawsuit filed on behalf of organizations that conduct voter registration activities in Tennessee.
States often engage in flawed processes to remove voters from the rolls based on erroneous information. We successfully fought to prevent purges in two states earlier this year.
- California: In January, after we along with ACLU of Northern California, Demos, and the UCLA Voting Rights Project sought to intervene and dismiss a case brought by individuals seeking to require the California Secretary of State and DMV to review documentary proof of citizenship before registering people to vote after DMV transactions, the plaintiffs voluntarily dismissed their case and have not refiled it. We represented the League of Women Voters of California, Common Cause, Mi Familia Vota, and UnidosUS in the case.
- Indiana: In August, a court permanently blocked a law in Indiana that would have allowed county election officials to kick voters off the rolls immediately without notice, based solely on third-party information. The ACLU, the ACLU of Indiana, Demos, and the firm Davis Wright Tremaine LLP, on behalf of Common Cause Indiana, challenged the law. The law sought to circumvent federally mandated safeguards from a state purge process, allowing voters to be purged based solely on second-hand information without notice or an opportunity to correct the record.
3. Fair Maps
In addition to all of our work to make sure that everyone can register and vote safely and without unnecessary barriers, we are also trying to make sure that everyone is counted equally in the political process and that political district maps are fair — at both the national and local levels.
- The Census: The Trump administration tried twice to undermine the census and weaponize it to target undocumented immigrants. We sued, and won, twice. As the Constitution says: everyone in the country must be counted. In September, a federal court blocked the Trump administration’s attempt to block undocumented immigrants from being counting in the Census for purposes of representation in Congress — a move that would have been devastating to states with large immigrant communities. The ACLU, the New York Civil Liberties Union, the ACLU of Texas, and Arnold & Porter LLP brought the case on behalf of the New York Immigration Coalition, Make the Road New York, CASA, the American-Arab Anti-Discrimination Committee, the ADC Research Institute, and FIEL Houston.
- Georgia: In January, a federal district court in Albany ordered the Sumter County Board of Elections and Registration to adopt court-drawn maps for county school board elections, in compliance with the Voting Rights Act. In addition, the court required the county to move its school board elections from May back to November to ensure increased voter participation, including from the Black community. The ACLU, the ACLU of Georgia, and the Law Office of Bryan L. Sell filed this lawsuit on behalf of Rev. Mathis Wright, Jr.
We are not done yet. We will keep working to protect your right to vote in the days leading up to Election Day and on Election Day itself. And we’ll be back at work the next morning, preparing for the next election.