Legal fights inject chaos into states’ absentee ballots

Author: Jeremy Herb and Pamela Brown / CNN
mail in ballot
Slowdowns in the U.S. Postal Service have spurred concerns about delivery and receipt of ballots for the November elections. (Photo By Bill Clark/CQ-Roll Call, Inc via Getty Images)

Lawsuits being fought across the country are colliding with state deadlines to mail absentee ballots to voters, creating delays and stirring up new uncertainty over the ability of major swing states to handle the anticipated surge of mail-in ballots this fall.

In Pennsylvania, ongoing lawsuits over the Green Party candidate appearing on the ballot have prevented counties from sending mail-in ballots to voters. Wisconsin narrowly avoided absentee ballot chaos on Monday in a 4-3 state Supreme Court decision preventing the need for counties to reprint hundreds of thousands of ballots set to be mailed this week.

There also are several states fighting over absentee ballot applications that were mailed to voters, in some cases forcing voters to reapply to receive an absentee ballot.

The sprawling election litigation stretching from coast-to-coast underscores the contentious nature of an election being conducted in the midst of a pandemic, which has prompted many states to change their election rules. But the lawsuits also can have real-world side effects as voters have less time to return ballots ahead of an Election Day where going to the polls is as complicated as ever.

“We’re going to see higher turnout than we’ve ever seen before in the middle of the pandemic. It’s important for voters to get as much time as possible and do it early, and if ballots aren’t printed yet that’s impossible,” said David Becker, founder of the nonpartisan Center for Election Innovation and Research.

Election lawsuits aren’t the only source of confusion surrounding absentee voting. The US Postal Service sent a mailer to all households across the country about mail-in voting that contained inaccurate information, leading a bipartisan array of election officials to publicly rebuke the mailers.

Delays to send ballots to voters

So far, two states, North Carolina and Alabama, are mailing absentee ballots to voters, and a third, Georgia, begins on Tuesday. More than a dozen more are scheduled to do so by the end of the week.

Not all the deadlines have been met. Pennsylvania was supposed to start sending absentee ballots Monday to voters who had requested, but counties there are on hold as a result of the lawsuit the state’s Democratic Party is fighting to keep the Green Party off the ballot.

One county official told CNN that once the state’s ballot was certified, it would still take time to actually get ballots into voters’ hands.

Pennsylvania, one of the key states President Donald Trump won in the 2016 election, experienced problems during its primary as its mail-in voting ramped up significantly. Republican National Committee chief counsel Justin Riemer told CNN because widespread vote-by-mail is new to Pennsylvania this year, they are concerned about the state’s ability to mail out ballots and also process them in a timely manner when they’re returned.

In Wisconsin — which grappled with a tumultuous primary thanks to last-minute lawsuits surrounding whether the election would go forward in the pandemic — a Thursday deadline to begin mailing absentee ballots was in jeopardy because of a pending state Supreme Court case about whether the Green Party candidate would be added to the ballot.

The court ruled 4-3 Monday evening to keep the Green Party candidate, Howie Hawkins, off the ballot, in a win for Democrats. One conservative justice joined with the court’s three liberals to form a majority opinion, writing that ordering local clerks to add Hawkins to the ballot at this late stage would “create a substantial possibility of confusion among voters who had already received, and possibly returned, the original ballots.”

“We would be unable to provide meaningful relief without completely upsetting the election,” the Supreme Court wrote in its decision.

About 1 million voters in Wisconsin have requested ballots, and county election clerks said they would have had to reprint more than 378,000 ballots, some of which were already sent out, according to the Wisconsin Election Commission. One clerk warned the court that reprinting would have caused “much voter confusion,” arguing counties were “too far in the process for this to occur.”

Another potential spoiler candidate left off the Wisconsin ballot, rapper Kanye West, could still appeal to the state Supreme Court to be added to the ballot, too, but Monday’s ruling makes it unlikely the court would change course.

Ballot applications ruled invalid

In several other states, it’s not the ballot itself that’s sparked problems but rather the application voters have to fill out to receive one.

Last month, an Iowa state judge invalidated more than 50,000 pre-filled absentee ballot applications, because information had been pre-filled in, in response to a lawsuit from the Trump campaign. The judge ruled another 90,000 ballot applications were invalid in another Iowa county on Monday, according to local TV station KTIV. The rulings mean clerks have to resend the applications to voters.

In New York, tens of thousands of voters have been told they have to re-apply for absentee ballots, including more than 27,000 in Nassau County alone, according to Nassau County Board of Elections Democratic Commissioner James Scheuerman.

The reason is that the state previously required an excuse for voters to request an absentee ballot. New York Gov. Andrew Cuomo’s signed an executive order earlier this year allowing all voters to cite Covid-19 to receive absentee ballots, but it only covered the primary. The state extended the rule through the general election, but the change didn’t take effect until August 20 — meaning voters may have to reapply if they requested an absentee ballot citing the pandemic before that date.

To make matters even more confusing, some counties aren’t requiring new applications, deciding that they will consider the original ballot applications as legitimate.

USPS adds confusion where voters automatically receive ballots

For states where all registered voters automatically receive absentee ballots, another form of voter confusion was recently mailed to voters by the US Postal Service.

Nine states and the District of Columbia are sending all registered voters mail-in ballots this year. Some states, like Washington and Oregon, have long conducted their elections primarily by mail, while others, including California and New Jersey, are doing so for the first time this year

But a USPS pre-election mailer sent to voters across the country ignored the millions who will be sent a ballot, and instead advised voters to request a vote-by-mail ballot at least 15 days before Election Day. It’s the latest episode that’s sparked concerns about the Postal Service’s ability to seamlessly handle the expected surge in absentee ballots that will largely be sent through the mail.

Colorado Secretary of State Jena Griswold filed a lawsuit Saturday to stop delivery of the mailers, charging that the “false statements will confuse Colorado voters, likely causing otherwise-eligible voters to wrongly believe that they may not participate in the upcoming election.” A federal judge granted a temporary order blocking USPS from sending more mailers in the state.

Other states with Republican leadership have slammed the mailer, too. Utah’s state elections Twitter account said voters “DO NOT need to request a mail-in/absentee ballot,” tweeting a photo of the mailer, while Maryland issued a statement that the USPS mailer was “inconsistent” with the state’s mail-in voting policies.

“We are aware that each state has its own specific rules, deadlines and requirements, and the mail-piece acknowledges that fact,” the Postal Service said in a statement. “The main message of the mail-piece is that voters should plan ahead, educate themselves about voting options available in their jurisdiction, and, if they choose to vote by mail, to give themselves enough time to receive, complete and return their ballot.”

Democrats targeted Postmaster General Louis DeJoy, a Trump megadonor who was appointed this year and has come under fire for service cuts made ahead of the November election.

Rep. Gerry Connolly, a Virginia Democrat who chairs the congressional subcommittee overseeing the USPS, said at a hearing Monday that the postmaster general was “sending misinformation and confusing voters in nine states that automatically send out such ballots.”

“This debacle could have been avoided,” Connolly said.

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