All California Registered Voters Will Receive Vote-By-Mail Ballots, But Litigation Over Voting Rights Intensifies

On May 8, 2020, Governor Newsom issued an executive order requiring ballots for the presidential election to be mailed to all registered voters.  The order was a response to the coronavirus pandemic and an effort to protect public health and the right to vote, but it drew a prompt legal challenge from the Republican National Committee, National Republican Congressional Committee and the California Republican Party. While the case was quickly dropped as moot after the state enacted legislation to ratify the order, there are similar cases throughout the country that address questions about voting rights during the pandemic and may impact the results of the election.

While voting by mail has recently become a hot-button issue, it is not new. In California, there is a long history of voting by mail, but historically voters would have to request a mail-in ballot.  This year, under the new law, all California registered voters will automatically receive a ballot in the mail, which can be returned by mail or delivered in-person to the county elections office or other designated drop-off locations.  Certain designated in-person voting locations will also be made available and can be located by checking with the county elections official. Prior to the coronavirus, there were five states (Colorado, Hawaii, Oregon, Washington, and Utah) that had laws for conducting elections mostly by mail.  Many other states have moved towards voting by mail to ensure the right to vote is not discouraged by concerns about the coronavirus, and to avoid the spread of disease from in-person voting.  Like California, some states have moved to send all voters mail-in ballots, while others will send out applications to vote by mail or authorized vote by mail where it was not previously allowed.[1]

Voting by mail is largely accepted by researchers and legal experts as a safe and secure manner of conducting elections.[2]  Some critics claim it creates the opportunity for voter fraud, but there is no substantiating evidence for widespread abuse.[3]   Following the 2016 presidential election, President Trump made several claims of illegal voting, including in California, and formed a task force to investigate, but it was disbanded without producing any evidence of widespread voter fraud.[4]    Nevertheless, changes in various states have prompted a wave of litigation alleging potential voter fraud that could have a significant effect on the outcome of the 2020 election.

The legal challenge to Governor Newsom’s Executive Order N-64-20 made three central claims: (1) a separation of powers argument that the executive order usurped legislative power to re-write the state Elections Code; (2) a claim that the vote-by-mail system “created a recipe for disaster” by inviting fraud, coercion, theft, and otherwise illegitimate voting; and (3) challenging the Governor’s authority to retain the sole discretion to determine where in-person voting would occur.[5]  Plaintiffs’ far-reaching allegations claimed ballots might be mailed to the wrong address, large residential buildings, or places such as nursing homes, where the ballots could be intercepted.  Plaintiffs also claimed that voter registration databases are outdated or inaccurate, which may result in duplicate ballots or ballots sent to the wrong address or allow fake registrations.

Despite the doomsday scenario presented in their complaint, on July 9, 2020, the plaintiffs voluntarily dismissed their complaint upon the passage of Assembly Bill 860, which amended the Elections Code to require vote-by-mail ballots be mailed to all voters.  Although the legislative response did not address the numerous other attacks by plaintiffs that vote-by-mail created a potential for fraud, dilution of votes, or degradation of the election, the plaintiffs dismissed the action in its entirety, acknowledging the separation of powers claim was moot.[6]

President Trump’s re-election campaign and its allies have initiated similar legal challenges in other states that paint a bleak picture of voting by mail. For instance, in Pennsylvania, the Trump campaign filed a legal challenge to state laws that expanded the right to vote by mail, but the action was stayed under the abstention doctrine, citing novel questions of state law that needed to be interpreted by the state courts.[7]   Similar lawsuits have been brought in New Jersey and Nevada.[8][9]

On the other side of the equation, there is litigation challenging restrictions on voting by mail.  In Arizona, the Arizona Democratic Party and the Democratic National Committee are challenging the signature verification procedure for mail-in ballots, and the lack of an opportunity to cure when signatures on certain ballots do not match voter registration records.[10]  In Georgia, in litigation that preceded coronavirus, a coalition of groups sued the state alleging “gross mismanagement” that disenfranchises minority voters.[11]  The allegations are based on a variety of practices, including a policy called “exact match” which requires poll workers to examine signatures of voters on their ballots and original registration document to ascertain whether the signatures match.  The plaintiffs further allege inadequate resources and training for receiving and tabulating mail-in ballots.  And, in Texas, a group of plaintiffs brought suit challenging state laws requiring voters pay postage to return ballots, the deadline for receipt of a mail-in ballot, the signature match policies, and making it a crime to assist a voter in returning a ballot.[12]

While the pre-election litigation in California may have resolved, there are many more cases throughout the nation addressing the numerous changes in state election laws.  This litigation is a precursor to potential significant post-election litigation over counting mail-in ballots, as well as delays and uncertainty about the results of the presidential election.

In California, ballots will be mailed on October 5, 2020.  They are mailed to registered voters only, so it is important to register in advance.  To be counted, ballots must be post-marked by November 3, 2020 and received by the county elections official by November 20, 2020.  To be safe, voters should plan ahead and vote early, either by mailing ballots well before election day or turning them into a designated drop-off location.

[1] Rabinowitz & Mayes, The Washington Post, At least 83% of American voters can cast ballots by mail in the fall, Aug. 20, 2020, available at: https://www.washingtonpost.com/graphics/2020/politics/vote-by-mail-states/.

[2] McReynolds & Stewart, The Hill, Let’s put the vote-by-mail ‘fraud’ myth to rest, Apr. 28, 2020, available at: https://thehill.com/opinion/campaign/494189-lets-put-the-vote-by-mail-fraud-myth-to-rest.

[3] Goldstone, Campaign Legal Center, Republicans and Democrats Agree There is No Widespread Voter Fraud January 25, 2017, available at: https://campaignlegal.org/update/republicans-and-democrats-agree-there-no-widespread-voter-fraud.

[4] NPR Interview with Matthew Dunlap, Member Of Disbanded Trump Voter Fraud Commission Speaks Out, Aug. 4, 2018, available at: https://www.npr.org/2018/08/04/635668304/member-of-disbanded-trump-voter-fraud-commission-speaks-out.

[5] Republican National Committee, et al. v. Gavin Newsom, et al., Complaint, Filed May 24, 2020, E.D. Cal., Case No. 2:20-at-00509.

[6] Wells, Bloomberg Law, RNC Concedes Suit Is Moot Over California’s Vote-by-Mail Order, July 10, 2020, available at: https://news.bloomberglaw.com/coronavirus/rnc-concedes-suit-is-moot-over-californias-vote-by-mail-order

[7] Donald J. Trump for President, Inc., et al. v. Boockvar, et al., Opinion, Filed 8/23/2020, W.D. Penn., Case No. 2:20-cv-00966.

[8] Donald J. Trump for President, Inc., et al. v. Murphy, et al., Complaint, Filed 8/18/2020, D. New Jersey, Case No. 3:20-cv-10753.

[9] Donald J. Trump for President, Inc., et al. v. Cegavske, Am. Complaint, Filed Aug. 20, 2020, D. Nev., Case No. 2:20-cv-01445.

[10] The Arizona Democratic Party, et al., v. Hobbs, et al., Complaint, Filed 6/10/2020, U.S. Dist. Ct. Az., Case 2:20-cv-01143.

[11] Fair Fight Action, Inc., et al. v. Raffensperger, et al., Amended Complaint, Filed 2/19/19, Case No. 1:18-cv-05391.

[12] Lewis, et al. v. Hughs, Complaint, Filed 5/11/2020, W.D. Tex., Case No. 5:20-cv-00577.