June 26, 2020 HUMAN RIGHTS

Common Cause New York v. Brehm Is the Canary in the Coal Mine When It Comes to Voting by Mail in the Coronavirus Age

by John Powers

We are living—and voting—in strange times. Facing the unique circumstances of holding an election during the COVID-19 pandemic, state officials are realizing that voting by mail is going to be more critical to protecting the franchise than it’s ever been before. Wisconsin’s recent primary election serves as a cautionary tale as to why. A series of emergency orders and legal challenges resulted in voters having to risk their health to stand in long lines for hours to vote in the April 7, 2020 primary; at least 19 people who either voted in-person or worked at a polling site have tested positive for COVID-19 since April 9. Since the election, there has been an uptick in COVID-19 cases in Milwaukee and Waukesha, where few polling places were open and citizens waited in the longest lines.

In light of Wisconsin’s experience, states around the country are considering measures to expand access to the vote-by-mail process.

In light of Wisconsin’s experience, states around the country are considering measures to expand access to the vote-by-mail process.

Btwashburn on Flickr and Lifeforstock on Freepik

In light of Wisconsin’s experience, states around the country are considering measures to expand access to the vote-by-mail process for the remaining primaries and the November general election. This makes sense, given that experts agree that the health risk from COVID-19 isn’t going away anytime soon. For example, noting the “[t]imes of turbulence and upheaval like the one we Georgians face,” the Georgia secretary of state began mailing English-only mail ballot applications to all active voters in Georgia the week of March 30. Not surprisingly, the number of mail ballot applications exploded: An unprecedented number of Georgians (395,000) submitted applications for the state’s June 9 primary.

Predictably, there has been a backlash to expanding vote-by-mail measures based on allegations about the potential for increased voter fraud. The ensuing partisan fight over the legitimacy of that concern has obscured a more important question: Is expanding mail voting going to work for everyday Americans given the current strain that the postal system is facing?

Postal workers should be lauded in their bravery for continuing to work at great risk to their own health during the pandemic. However, it is crucial that as the 2020 election approaches, we consider the efficacy of a process that relies primarily on the effectiveness of a part of the government that has been in a state of crisis for years.

A case recently decided by Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York, Common Cause New York v. Brehm, --- F.Supp.3d ----, 2020 WL 122589 (S.D.N.Y. Jan. 10, 2020), raises troubling questions about the kinds of problems that may arise when boards of elections mail absentee ballots to voters—and when voters mail them back—during the 2020 election cycle. See id. at *9-10. While Brehm dealt primarily with a separate issue—Judge Nathan held “that New York’s refusal to provide inactive lists at polling locations violates the Equal Protection Clause,” id. at *30—the case’s description of widespread problems facing the postal service in New York yields important lessons for those who may be seeking to protect our democracy in the midst of the COVID-19 pandemic.

Judge Nathan’s opinion meticulously describes disturbing testimony from New York City Board of Elections Executive Director Michael J. Ryan, one of the officials who has been battling postal service-related problems for years.

  1. “the Postal Service often returns mail as undeliverable even though the voter continues to reside at the same location,” Brehm, 2020 WL 122589, at *9;
  2. “the Postal Service’s coding of undelivered mail, which is supposed to provide the sender an explanation for why the piece of mail was returned as undeliverable, can be arbitrary and cryptic,” id.;
  3. “if the original mail-check notice was returned as undeliverable due to a Postal Service error, then it is possible that [a second mailing] could be too,” id.;
  4. “Ryan testified that the Postal Service has returned completed confirmation cards from voters several months after the voter sent them,” id.;
  5. “the City Board met with representatives from the Postal Service to fix these problems, but had little success,” id. at *10;
  6. “notices informing voters that their affidavit ballots were counted have been returned as undeliverable, thus rendering those voters inactive [for future elections and, eventually, subject to removal from the voter rolls if they fail to vote or contact election officials]—even though they had just confirmed their addresses through the affidavit process,” id.; and
  7. the City Board avoids sending mail to voters—thereby keeping New Yorkers less informed about the electoral process—due to their concern that many mailings will be improperly returned as undeliverable, causing eligible voters to be wrongfully moved to inactive status and, eventually, wrongfully removed from the rolls, id. (“the City Board is so concerned about its mail being improperly returned as undeliverable, and thus causing voters to be marked as inactive, that it ‘tr[ies] not to send casual pieces of mail that aren’t necessary to eliminate the return issue . . . [because] superfluous communication can lead to an unintended consequence. . . .’” because “while people want us to communicate with the voters by mail and they think it’s a good thing, you can also inadvertently lead to voters becoming inactive”).

Not surprisingly, Ryan ultimately concluded his office’s work was severely hampered by “the poor quality and the lack of consistency of the post office.” Id. at *9. And he wasn’t alone. Judge Nathan notes that Robert Brehm, co-executive director of the New York State Board of Elections, agreed that Postal Service data identifying which New Yorkers had purportedly moved away from the address at which they are registered to vote is “unreliable,” as did Virginia Martin, current commissioner of the Columbia County Board of Elections. Id. at *10.

In New York, this problem meant that voters were moved to inactive status and their name was omitted from poll books even though they still lived in the same place and had done nothing wrong. See id. Judge Nathan noted these problems “are not isolated incidents” and “occur to tens of thousands of New York voters,” including at least 45,000 voters in the November 2016 presidential election alone. Id. at *8. Similar postal service problems could—and likely will—impact the absentee ballot process around the country. In Wisconsin, Senators Ron Johnson and Tammy Baldwin jointly called on the United States Postal Service to look into claims that ballots that were requested ahead of the state’s April 2020 primary election were never delivered or arrived only after the election had passed. Similarly, in the November 2018 general election, several absentee voters from counties around Pennsylvania filed a state court case called Adams Jones v. Boockvar, in which the voters described having to wait weeks to receive their absentee ballots in the mail and ultimately being disenfranchised in that election as a result. See Adams Jones v. Boockvar, No. 717 MD 2018 (Pa. Commw. Ct.), Complaint (filed Nov. 13, 2018) ¶¶ 52–60 (detailing experiences of voters Sarah Mearhoff, Kelly Myers, Cassandra Adams Jones, Edward Ream, Ariela Berg, Kenedy Kieffer, John Neugebauer, Felicia Cooper, and Radharani Howard).

Voters and voting rights plaintiffs have also described problems with mail sent to their address being returned as undeliverable even though they have not moved from their address of registration in N.C. State Conf. of the NAACP v. N.C. State Board of Elections, 2016 WL 6581284, at *5-6 (M.D.N.C. Nov. 4, 2016), and in filings in a National Voter Registration Act lawsuit challenging voter purges in Hancock County, Georgia. See, e.g., Ga. State Conf. of the NAACP v. Hancock Cty. Bd. of Elecs. and Registration, No. 5:15-cv-414, Dkt. 30, p. 9–11 (M.D. Ga. Feb. 2, 2016) (describing Samuel Clayton, Quintina Walker, Jimmy Johnson, Ronald Waller, and other voters who remain living in Hancock County despite being purged by the Hancock County Board of Elections and Registration on the alleged basis that they had been sent mailings that had been returned as undeliverable). Similarly, in Bulloch County, Georgia, the county board of elections office has recently received hundreds of undeliverable absentee ballot request applications for the upcoming primary with a variety of different “return to sender” labels affixed by the Postal Service. Some labels indicate “Attempted; Not Known; Unable to Forward,” while others say, “No Mail Receptacle.” Id.

Most of the issues described above arose long before the COVID-19 pandemic. Now, however, we have a perfect storm. Postal service resources are strained to the hilt, gaps in funding may not be filled, legitimate health threats impede postal workers’ yeoman efforts, and the upcoming election cycle is going to smash records for the number of vote-by-mail ballots, meaning that a crushing number of absentee ballot applications and absentee ballots are going to be crisscrossing the country at an inopportune time.

The problems described in Brehm will likely rear their head during the 2020 general election, including: (1) absentee ballot applications and absentee ballots being inappropriately returned as undeliverable even when they’re mailed to the correct address; (2) the post office providing confusing or misleading information about why they are returned as undeliverable; (3) subsequent mailings to the same address being returned as undeliverable; (4) absentee ballot applications and ballots being returned to election officials weeks or months after they are mailed by voters; and (5) overwhelmed election officials limiting their attempts to reach out to voters by mail to avoid triggering list maintenance processes pursuant to the National Voter Registration Act of 1993, which could ultimately result in voters being removed from the rolls after two election cycles of inactivity. See 52 U.S.C. § 20507(d) (describing list maintenance process for voters who have allegedly moved from their address of registration, which can be triggered if mail sent to the voter’s address is returned undeliverable).

There is no need to abandon plans to expand vote-by-mail or to panic—Washington, Oregon, Colorado, Utah, and Hawaii conduct their elections predominantly by mail, and turnout has generally increased in those jurisdictions. However, to make it work in states where election officials and postal workers are not used to administering mail ballot elections, it is going to be important to support postal workers through appropriate resourcing and using failsafe tools that promote transparency and serve as a stopgap, such as online absentee ballot status update or ballot tracking tools like Georgia’s My Voter Page or, where necessary, relaxing absentee ballot return deadlines. The Trump administration’s efforts to reduce postal service funding, if successful, will only serve to undermine the integrity of mail voting at this critical juncture.

State legislatures and election officials who think things are working fine as they are would be well advised to read Judge Nathan’s opinion in Brehm to consider the potential impact of ignoring the challenges facing the postal service as the 2020 election approaches.

John Powers is counsel for the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law.