January 19, 2021

Election Outreach to Long Term Care Facilities

by Julie Gilgoff

The full PDF in which this article appears can be found in BIFOCAL Vol. 42, Issue 3. 

The landmark 2020 Presidential election, in the midst of the global pandemic, posed unique challenges to Long Term Care (LTC) residents in exercising their right to vote. Many facilities barred visitors because of the spike in COVID 19 cases and its lethal spread. The usual avenues of outside assistance to help residents register to vote, apply for and fill out absentee ballots, return ballots by mail or at designated sites, and provide transportation to polling places, were not readily available.

Within this context, the American Bar Association (ABA) conducted a study to determine the degree of voting assistance that was provided to residents at LTC facilities, nationwide. Although the conditions of this election may never again be replicated, there are several takeaways, which hold promise for the future. 

This study revealed promising trends and best practices that can be used to improve voting procedures for persons in LTC:

1. Expansion of no-excuse absentee voting

According to the National Conference of State Legislatures, thirty-five out of fifty states were already “No excuse absentee ballot states” before the November 2020 election, meaning that voters did not have to provide a reason when applying for an absentee ballot. Leading up to the November 2020 election, twelve of the remaining fifteen states amended their absentee ballot practices, declaring that voters no longer needed an excuse, or could use COVID 19, or other illness, generally, as a qualifying reason to vote absentee.[3]

Prior to the November 2020 election, many states required voters to fill out an application and provide medical documentation to qualify for the permanent absentee ballot program. Only if a voter qualified, would they receive an absentee ballot without further action, in each election.[4] During the November 2020 election, some states mailed all voters an absentee ballot without an application, or alternatively, mailed all voters an application for an absentee ballot. [5]  

Expanding absentee voting in this way, which removes the burden on the voter to initiate the process, benefits LTC residents, who may not otherwise remember that there is an election or take necessary steps to obtain absentee ballots in time for election deadlines without outside assistance.

The expansion of absentee voting does not do away with the need for voting assistance,[6] but is an important step towards increased voting access for LTC residents.[7]

2. Education to LTC staff about residents’ legal right to vote

The ABA implemented two surveys that tracked the level of voter assistance provided to LTC residents during the November 2020 election.  The “state policy survey” was sent to all Secretaries of States and State Election Directors in September 2020, to gauge which voting policies and procedures had been modified for the November election, both with respect to the general public, and specifically to LTC facility residents. A total of 25 State Election Directors, plus a representative from the District of Columbia, responded to the survey. An additional ten states chose to respond by email or telephone conversation[JG1] .

The “State and Local Ombudsmen” survey was distributed to long-term care ombudsmen with the help of The National Consumer Voice for Quality Long-Term Care.  A total of 125 respondents filled out the survey or gave their responses over the phone. These respondents were a mix of local and state ombudsmen and did not specify their role when responding to the survey. Twenty-eight states had two or more ombudsmen respond.

Many respondents commented on the need for education and training for LTC facility staff, to better understand how they are permitted to assist resident voters, and which residents have capacity to vote.[8] A New England survey respondent, for example, commented that their ombudsmen offices have had to advocate for residents with cognitive impairments against the bias that they are not able to vote.[9]

This November election saw increased efforts to educate LTC staff about ways to assist residents in the voting process. States including Iowa, Maine, Massachusetts, Minnesota, Texas, New Jersey, and Missouri, came up with materials, including guides and fact sheets, as well as training materials to aid in the effort.[10] A number of Ombudsmen survey respondents indicated that they had success in reaching the most LTC residents when partnering with concerned organizations such as AARP and disability rights organizations.[11] Another Ombudsman commented that the staff at the LTC facilities in their jurisdiction routinely tell residents that they’re “too stupid to vote”, furthering the argument that education and oversight is imperative.

Practices of educating LTC staff and administrators about how they may assist residents in the voting process, and how they are required to do so by federal law, should continue in all elections going forward.[12]

3. Implementing and overseeing a plan from each LTC facility

ABA survey results revealed enormous disparities in how voting assistance was being implemented in the November 2020 election, across the fifty states and Washington D.C.. Although the Center for Medicare & Medicaid Services (CMS) wrote a directive to LTC facilities, reminding administrators of their legal obligation to ensure that residents are given assistance to exercise their right to vote,[13] there was little to no oversight to ensure that these goals were met.

The U.S. Election Assistance Commission (EAC) had previously suggested that each LTC facility maintain a master list of all residents registered to vote, in order to determine if there were new residents not yet registered at that facility’s address.[14] In some states, Board of Elections offices are also involved in the process to cross reference voter lists against the facility census, ensuring that LTC residents are registered to vote before election day, and that absentee ballots could be applied for and sent to everyone who wishes to vote.[15]

The appropriate party to provide oversight for LTC facilities’ voter assistance plans is unclear. Local and state ombudsmen are one possibility. According to survey results, even after the start of the pandemic, many ombudsmen maintained regular “virtual town hall” meetings within facilities, conducted conference calls where voting was discussed as an agenda item, and continued to oversee a database of all activities and updates at individual facilities. Ombudsmen are therefore in the unique position to answer what is and is not happening within their jurisdictions’ facilities.

Additionally, oversight should be conducted by each Secretary of State to ensure that Board of Elections offices have distributed voting material and visited each facility in their jurisdiction to assist in the voting process. An impartial body should provide regulation to ensure that every LTC resident in need, is assisted in the registration and voting process, as required by state law.[16] If state law does not require Board of Election officials to assist residents of LTC facilities, or if the state policy requires a triggering event to compel assistance, these policies should likewise be amended to remove the burden from residents to initiate BOE involvement.[17]

4. Implementation of innovative tactics like curbside voting and video assistance

The November 2020 election gave rise to innovative practices that expanded methods of voting and technical support. North Carolina, for example, allowed voters to submit ballots by fax or email,[18] and other states, like Vermont and Alabama permitted or expanded “curbside voting.”[19]

In Arizona, Special Election Boards (bipartisan teams of election workers who assist voters), used videoconferencing technology if in-person meetings were not possible due to COVID-19 restrictions.[20]

Greater funding for technology in LTC facilities would allow residents to vote electronically in states where that is permitted or receive video assistance if in-person assistance is not possible. Further, the expansion of curbside voting would allow those who are uncomfortable with voting by mail exercise their right in person, without requiring persons with potential health challenges to physically enter the polling location.

5. Expansion of those permitted to assist LTC residents in the various steps of the voting process

The ABA surveyed State Election Directors and Secretaries of States[JG2]  about what roles LTC staff are permitted to assume, in order to assist their state’s LTC residents to vote. The survey asked whether LTC staff could help (1) obtain voter registration forms, (2) obtain absentee ballots, (3) help residents to complete absentee ballots, and (4) submit absentee ballots by mail or in a drop box. A little under half of all respondents indicated that LTC staff was prohibited by state law in one or more of these areas.

Pennsylvania, for example, placed onerous restrictions on who is allowed to drop completed ballots off at the county elections office or a drop box. Pennsylvania state law requires that voters return their own mail-in or absentee ballot with the only exception being for voters with a disability. A disabled voter may designate someone in writing to return it for them, but that person must live in the same “household.” A state election directive clarified that “household” for the purpose of designating an agent, does not include a long-term care facility, and further, “each resident . . . must designate a different agent” to return their ballots. This restriction limited the number of LTC residents who were able to vote, especially during the pandemic, when family members and friends who would typically provide voting assistance to residents, were prohibited from entering facilities.

Many states designate Board of Election officials as a reliable, impartial source of voter assistance. However, in this election when BOE officials were precluded in many states from entering facilities to provide assistance, certain states offered alternatives. North Carolina, for example, recruited and trained “Multipartisan Assistance Teams” (or MAT teams, appointed at the county board level) to enter long-term care facilities and provide assistance with voter registration and absentee voting during the COVID-19 pandemic. MAT teams were trained to abide by safety precautions and try to conduct most of their voting assistance outdoors. North Carolina Session Law changed the composition of MAT teams to make it easier for counties to recruit members.[21]

A continuation of these types of policies, which expand the pool of individuals trained in proper protocol of assisting LTC residents in all steps of the voting process, would prevent the disenfranchisement of the LTC population in future elections.

Conclusion:

The November 2020 election strained the already limited assistance available to empower residents in long term care to register and vote. Several promising practices emerged this year, as weaknesses in the system were revealed. Both are trends we can learn from as we build systems that empower every qualified voter. For additional details on the ABA study and surveys, including background research on voting policy and practices, please see the full report.

[1] This project was made possible by funding from the Borchard Foundation Center on Law and Aging.

[2] Julie Gilgoff is an adjunct professor at CUNY School of Law. She worked at Bay Area Community Land Trust (BACLT) and Sustainable Economies Law Center (SELC) as a Borchard Fellow, specializing in senior cooperative housing.

[3] https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for-the-2020-election.aspx

[4] https://www.ncsl.org/research/elections-and-campaigns/vopp-table-3-states-with-permanent-absentee-voting-for-all-voters-voters-with-permanent-disabilities-and-or-senior-voters.aspx

[5] Connecticut, Delaware, and Massachusetts were among the states to adopt the policy to mail applications for absentee ballots to all eligible voters in the November 2020 election, without voters requesting one. Other states like California mailed an absentee ballot to all voters, without requiring an application. Still, the majority required the voter to seek out an application and mail it in, before an absentee ballot was sent to the address on file.

[6] Visual impairments are just one potential challenge for LTC residents in filling out absentee ballots, and LTC residents may still need assistance in voter registration, applying for the absentee ballot, filling it out, and then mailing it in or dropping it off. See Dr. Karlawish’s testimony to the U.S. Senate Special Committee on Aging in January of 2008, https://www.aging.senate.gov/hearings/older-voters-opportunities-and-challenges-in-the-2008-elections

[7] Rhode Island, Virginia, Minnesota, and Alaska, for example, changed, eliminated, or lowered their requirement for witnesses to sign absentee ballots, in case during the pandemic an individual didn’t have access to other people when casting their absentee ballot. https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for-the-2020-election.aspx. Likewise, Alabama’s recent court decision, People First of Alabama v. John Merrill challenged components of the State’s election laws that put voters at risk of contracting COVID-19, resulting in the elimination of the notary or witness requirement for those with a substantiated underlying health condition. https://www.aclu.org/legal-document/alabama-opinion. For the November 2020 election, two witnesses or a notary are still necessary on the absentee ballots of general voters. https://www.sos.alabama.gov/alabama-votes/voter/absentee-voting

[8] Some survey respondents indicated that the Social worker in their facility is tasked with assessing residents’ capacity, while other state representatives from Maryland, for example, indicated that there should be a presumption that all residents have the capacity to vote, except otherwise court ordered. See generally, https://www.americanbar.org/groups/law_aging/publications/bifocal/vol--41/vol-42--issue-1--september-october-2020-/assisting-cognitively-impaired-individuals-with-voting---a-quick/

[9] See the November 12, 2020 ABA guide, Assisting Cognitively Impaired Individuals with Voting: A Quick Guide 

https://www.americanbar.org/groups/law_aging/resources/voting_cognitive_impairments/

[10] https://ltcombudsman.org/issues/voting

[11] LTC Ombudsmen Survey results, November 3, 2020.

[12] Although the involvement of LTC staff in the voting process has raised red flags about potential fraud or coercion in the past, scholar Nina Kohn has concluded that these instances appear to represent relatively isolated events. For a comprehensive study of the topic, see Nina Kohn, Preserving Voting Rights in Long-Term Care Institutions: Facilitating Resident Voting While Maintaining Election Integrity McGeorge Law Review, Vol. 38, No. 4, 2007.

[13] The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Voting Rights Act (VRA), and CMS and HHS’s regulation on Medicare and Medicaid Programs; Reform of Requirements for Long- Term Care Facilities all require that facilities take steps to ensure that people with disabilities and seniors are not disenfranchised. See https://theconsumervoice.org/uploads/files/issues/Voting_and_Congregate_Settings_Letter_to_CMS_-9-17-20.pdf, p. 3.

[14] The EAC published a “Quick Start Management Guide on Serving Voters in Long-Term Care Facilities” as guidance in how to adhere to the Help America Vote Act of 2002. HAVA §301(a)(3) requires that each voting system used in an election for Federal office shall “(A) be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters;” https://www.eac.gov/sites/default/files/document_library/files/Quick_Start-Serving_Voters_in_Long-Term_Care_Facilities.pdf

[15] 2020 ABA survey results.

[16] See discussion of survey results in the longer, hyperlinked article, where one midwestern state in which the Board of Elections (BOE) office was required to deliver ballots to LTC facilities, responded that BOE delivered ballots to some, but not all facilities, and that facility staff felt that the BOE office was very inflexible about bringing absentee ballots with enough time before Election Day. LTC Staff ended up trying to “cram” all their voting assistance into one day.

[17] See complete article, and Bifocal’s 2004 report for further discussion of this topic. https://www.americanbar.org/content/dam/aba/publications/bifocal/bifocal_261.pdf

[18] https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for-the-2020-election.aspx

[19] https://sos.vermont.gov/media/dpindn33/drvt-voter-guide.pdf. The U.S. District Court for the Northern District of Alabama, Southern Division, also lifted the Secretary of State’s ban on curbside voting. https://www.wsfa.com/2020/09/30/judge-orders-changes-alabama-voting-laws-amid-pandemic/

[20] The Attorney general agreed that video meeting might be appropriate in certain circumstances but that decision to use video must be made by a special election board, not by the county recorder. Attorney General contends that the County Recorder's recently issued policy on this issue exceeds his authority. https://healthyelections-case-tracker.stanford.edu/file?id=133

[21] https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2019-2020/SL2020-17.pdf

Julie Gilgoff

Adjunct Professor

Julie Gilgoff is an adjunct professor at CUNY School of Law. She worked at Bay Area Community Land Trust (BACLT) and Sustainable Economies Law Center (SELC) as a Borchard Fellow, specializing in senior cooperative housing.

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