The courts have historically guarded fundamental voting rights, applying the Fourteenth and Fifteenth Amendments, such as abolishing poll taxes in Harper v. Virginia Board of Election in 1966. The United States Supreme Court has recently curtailed the Voting Rights Act, such as under Shelby County v. Holder in 2013 and Brnovich v. DNC in 2021. Yet in 2023 the Court upheld the application of Section 2 of the Act in the context of striking down racial redistricting that minimized Black majority voting districts in Alabama in Allen v. Mulligan. In regard to diversity in state approaches, the Court in 2018 upheld methods for updating Ohio’s voter registration lists in Husted v. Randolf Institute. In 2023, in Moore v. Harper, the Court rejected the so-called “independent legislature theory” in a case arising from redistricting in North Carolina finding: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
In the present era—after the expansion of voting by mail and other methods during the pandemic—courts, policymakers, and administrators have been presented with new challenges often accentuated by differences in approaches across the states. By way of example of this diversity, Oregon voters adopted universal vote by mail (VBM) in 1998, after a decade of experimentation. As of 2024, eight states—California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington—use universal vote by mail (UVM), whereby every registered voter receives a ballot in the mail. More than 30 states passed new voting laws in 2023 that will be in effect in the 2024 election and it has been observed that as many as 400 election-related bills had been introduced across state legislatures by late January 2024. By way of further illustration, after the 2020 election, Florida has so far left in place the ability for voters to cast a ballot by mail without an excuse but restricted other aspects of voting, including the availability and security of drop boxes and so-called “ballot harvesting.” Courts continue to scrutinize these changes. For example, while state and federal courts have generally upheld Pennsylvania’s mail-in voting law, even allowing votes to be counted by mail up to the Friday after the election, litigation continues over “undated” ballots that arrive on time but in envelopes without dates handwritten by registered voters.
Accordingly, no best practices in the rapidly evolving world of election law post-pandemic can survive without examination of the rule of law as explained by reviewing courts, written by politically diverse legislatures, and implemented by professional election administrators.
The ABA Standing Committee on Election Law has chronicled changes in voting laws since the contested presidential election of 2000, resolved by Bush v. Gore, in its ABA Election Administration Guidelines and Commentary (“ABA Election Guidelines”), most recently updated and approved by the House of Delegates in August 2023.
This working paper draws on the ABA Election Guidelines, which systematically examine the voting process from registration to recount to examine barriers to voting in the post-pandemic era in the context of a political polarization in which candidates have been emboldened to increasingly deny election results, election administrators feel threatened and embattled, and critics of U.S. elections question the fundamental soundness of our election law and institutions.
It should be emphasized that the electoral system in the United States remains reliable, trustworthy, and effective.
Problem Statement
What are the current top ten challenges that limit registered voters’ access to the ballot and what are the best practices for insuring free and fair access to the ballot? Although a litany of state processes impact voting, we have identified the following top ten challenges that limit access to the ballot for registered voters. These challenges are further developed in the ABA Election Guidelines, which have offered evolving best practices since 2000. By identifying these challenges, we acknowledge that other challenges exist, ranging from gerrymandered redistricting to partisan and race-based manipulation of voting laws to allegations of fraud. Nevertheless, we believe these challenges can be studied, addressed, and acted upon in a bipartisan or consensus manner as discussed in this Working Paper.
1. Voter Identification. Election administrators identify voters principally through forms of identification at the polls and by their signature when voting and registering by mail.
Strict voter identification requirements at the polls can suppress disenfranchised, new, or infrequent voters, even when registered, including minority and young voters. (See ABA Election Guidelines, Commentary, 3.0 Voter Registration.) Documentary proof-of-citizenship requirements in which the voter needs a particular form of identification should have options such as providing authenticating evidence like utility bills or, alternatively, signing a declaration of identity or other document attesting to voter identity. (See id. at Commentary, 3.0 Voter Registration; 9.0(b) Voter Verification; and Commentary, 9.0 Voter Verification.) Only one piece of identification should be required. (Id. at 9.0(b).)
Signature verification can be one of the most vexing steps in the process of processing registrations and ballots, especially in recounts and contests. It has been reported that in the 2016 election, mismatched signatures were the most common reason for rejection of a ballot. Technology makes it easier to verify voters’ signatures, but signatures can change over time and some voters with disabilities use equipment that could alter their signature. (Id. at 4.1(j)-(k) Voting Procedures; Commentary, 4.0 Voting by Mail/Absentee Voting.) Technology has evolved to provide alternative (but not additional, overly burdensome) methods for proving identity which should be implemented, with precautions to address cybersecurity concerns. (See id.) Motor voter registration and re-registration should provide a regular, periodic opportunity for voters to update their current signatures for voter registration. (Id. at 4.1(k) Voting Procedures.) Voters who do not or cannot avail themselves of DMV registration should be encouraged voluntarily to update their registration signatures if they feel their signatures have changed significantly. (Id.) If voter registration applications should require the signature of the applicant, alternative methods of verification should be offered to those unable to sign their name, such as some individuals with disabilities. (Id. at 3.2(a) Registration Procedure; Commentary, 3.0 Voter Registration.) Such alternative methods may include producing acceptable identification or a registered voter in the same precinct signing a verification on the individual’s behalf. (Id. at 9.0(a) Voter Verification.)
2. Registered Voter Lists. Voter list maintenance that fails to provide adequate notice to voters that they may be deleted from the registered voter lists can prevent or discourage voting. (See id. at 3.3 Voter Verification.) While list maintenance conducted under adequate safeguards is an important aspect of election administration, improper or inadvertent deletion of voters impacts all voters and can “purge” potential properly registered voters from the rolls. (See id.) The Supreme Court has allowed flexibility in state processes, but affirmed registrations cannot be removed only by reason of a failure to vote. (See id.) As a best practice, state and local election authorities should maintain a current and accurate roll of registered voters, including a centralized, electronic list maintained by the state government and readily accessible to all election officials at each polling place. (Id. at 3.1 Lists.) States should use technology for list maintenance and accessibility, so the voters can easily check their registration status. (See id.) Maintaining accurate voter lists that ensure access to the ballot in a more uniform and non-discriminatory manner, collaboratively across jurisdictions, with sufficient notice to voters and reactivation available at the polls could help update information without disenfranchising legitimate voters and has been made more difficult given the diversity of methods and diminished collaboration among states. (See id. at 3.4 Notice of Inactive Status.) Voters should be given notice by mail and email if they are moved to inactive status, with the notification stating why they moved to inactive status and listing the necessary steps to reactivate their registration. (Id.) The notice should also include a prepaid postcard pre-addressed to the election authority that the voter may use to reactive their registration or request a transfer of address. (Id.) If the voter has confirmed in writing that they have moved outside the jurisdiction, they should be removed from the voter roll and instructed on how to register in the new jurisdiction. (Id.)
3. Language, Disability and Native American Status. Non-English speakers, voters with disabilities and Native American voters have cited concerns about access for decades and given changes in methods and processes post-pandemic. State and local election authorities must ensure that voting processes and procedures are accessible to all voters, including voters with a broad range of disabilities, language minority voters, and voters from Tribal reservation and Native American communities. (Id. at 2.0 Accessibility, 2.4 Election Administration & Commentary, 2.0 Accessibility.) Prioritizing accessibility to the voting process for all should be a key component of any election administration plan. (Id. at 2.0 Accessibility.)
a. Language. For large populations of non-English speaking citizens, participation in the electoral process is unavailable unless ballot materials are provided in native languages at every stage of the process from registration through assistance at the polls, as required under section 203 of the Voting Rights Act. (See id. at Commentary, 2.0 Accessibility.) For language minority voters, state and local election authorities must provide quality translations, including the use of human processing of translations, at a minimum where required by law, including educational resources on their rights, and voting machinery. (Id. at 2.3 Ballots & 2.5 Education.) Poll workers must be prepared to assist language minority voters and should be trained on their needs and be knowledgeable about the different kinds of voting options. (Id. at 2.5 Education.) Advisory committees for limited English proficient voters should be created and consulted on translation issues, bilingual poll worker recruitment, and education to affected communities. (Id.)
b. Disability. Historically, many people with disabilities have been excluded from the electoral process for a number of reasons, including a lack of accessible ballots and reduced assistance at the polls. (Id. at Commentary, 2.0 Accessibility.) All polling locations must be ADA-accessible or alternative methods like curbside voting must be available. (Id. at 2.2 Polling Locations.) Accessible and non-paper ballots should also be utilized for voters with disabilities in ways that preserve the confidentiality of voting. (Id. at 2.3 Ballots.) Election administrators should include voters with disabilities and language minority voters in voter test groups as part of poll worker training. (Id. at 2.4 Election Administration & 2.5 Education.) Voter accessibility advisory committees and county-level voter accessibility committees should be consulted on accessibility issues, changes to current voting systems, and education to affected communities. (Id. at 2.5 Education; see, also, Voting and the Disability Community: Progress Made and Needed, ABA (April 20, 2022).
c. Native American Communities. A lack of equitable and accessible polling on or near Native American reservations and communities poses unique and significant barriers to the vote for Native American communities. (Id. at Commentary, 2.0 Accessibility.) Additional challenges are presented as vote by mail increases in popularity, because of the combination of nontraditional addresses on reservations and the reduction of physical voting options following the pandemic. (See id.) Election authorities should locate at least one polling location easily accessible to and located on or within Native American reservations and communities to ensure access to the ballot, as well as provide poll worker training and quality ballot translations for Native languages. (Id. at 2.2 Polling Locations, 2.3 Ballots, and 2.5 Education.
4. Early Voting. Early voting opportunities, now commonplace, operate under different standards in terms of timing, access, processing, and ability to cure. (See id. at Commentary, 5.0 Alternative Voting Methods.) Reduced opportunities post-pandemic through voting in-person at fewer polling places, drive-thru voting with uneven accessibility, and the placement and security of drop boxes all impact voting. (See id. at Commentary, 5.0 Alternative Voting Methods.) Early voting can be more than a convenience for voters if properly and consistently resourced and administered. (See id.) Accordingly, while it has been commonly accepted that voting occurs before Election Day, the lack of uniformity concerning the number of days and multitude of ways a registered voter can vote prior to Election Day leads to lost opportunities to expand voting and potentially lessens intended access. (See id.) Jurisdictions that allow early voting should create specific guidelines to ensure an adequate number of polling places; adequate notice of polling hours, locations, and accessibility; an appropriate time frame for early voting, with an end that maximizes time to vote and ensures that officials have time to note who voted before Election Day; no tallying of early ballots nor announcement of results until after the close of polls on Election Day; laws and regulations governing activity at polling locations are applied and enforced; any mail/absentee ballot drop boxes are easily accessible and do not disrupt in-person voting; and that voter accessibility for voters with disabilities is provided. (Id. at 5.1 Early Voting.)
5. Method of Voting. Mail/absentee voting has now been widely adopted and is here to stay. (See id. at 4.1 Voting Procedures & Commentary, 4.0 Voting by Mail/Absentee Voting.) Mail/absentee voting should be accessible to all registered voters and balance the resulting increased accessibility to the ballot with sufficient safeguards of voter identification, including easily trackable ballots to help ensure confidence in the process. (Id. at 4.1 Voting Procedures & 4.7 Tracking the Status of Ballots.) To confirm their identity, applicants should be required to provide basic personal information such as address, date of birth, signature for those who are able to provide one, and an identifying number like a driver’s license number, state or tribal identification card number, or the last four digits of the voter’s social security number. (Id. at 4.1 Voting Procedures.) States should accept ballots that are returned with sufficient information to verify the true identity of the voter. (See id.) Minor errors or omissions of information that do not affect verifying the voter’s identity should not bar the acceptance of the ballot. (Id. at 4.5 “Cure” of Mail Ballots.) States should also implement an electronic verification process to instantaneously confirm the voter’s identity. (Id. at 4.1 Voting Procedures.) Lists of mail/absentee ballot applicants should be available to the public before Election Day and to precinct officials, with voters who have requested a mail/absentee ballot being allowed to vote in person by surrendering the unvoted mail/absentee ballot. (Id.) Additionally, jurisdictions should utilize drop boxes to receive mail ballots as a convenience to mail/absentee voters, and the drop boxes should be processed at least once a day. (Id. at 4.2 Return of Mail/Absentee Ballots.) Despite the popularity of mail/absentee voting, differing standards for when to count these ballots has caused confusion, frustration and speculation of fraud given the time lag in processing and the increase in swings in totals attributable to the differing profile of early and election-day voters. The Guidelines analyze common practices, however, given the changes in the law, practices, and court decisions in the last two election cycles, we believe renewed cross-jurisdiction evaluation on access is advisable.
6. Third Parties Handling Ballots. Individuals, outside of an election administration office, acting between a registered voter and successful delivery of a ballot, raises legal, ethical, and practical issues. (Id. at Commentary, 4.0 Voting by Mail/Absentee Voting.) While both parties and organizations across the spectrum have engaged in “ballot harvesting,” there is a need to balance ease of vote by mail/absentee ballot with security and integrity of the ballot concerns. Election authorities should authorize and support requests for mail/absentee ballot applicants by civic political organizations, while at the same time enhancing alternative and convenient voting alternatives to third-party assistance in collecting and returning mail/absentee ballots, such as mobile election services or voting centers. (Id. at 4.1 Voting Procedures & Commentary, 4.0 Voting by Mail/Absentee Voting.) To the extent states cannot or do not provide alternatives to third-party assistance in collecting and returning voted mail/absentee ballots, states should authorize only an identified class of persons, as well as caregivers or other persons chosen by the elderly and persons with disabilities to assist them to vote, collect mail/absentee ballots, and return mail/absentee ballots. (Id. at 4.1 Voting Procedures.) States should provide chain of custody disclosure requirements to identify all persons entrusted by the voter to collect and return their mail/absentee ballot. (Id.) The next version of the Guidelines will more specifically discuss evolving standards in these practices after programming on this topic.
7. Curing Voter Errors. Every legitimate vote cast by a registered voter counts and should be counted. Failure to provide provisional ballots demonstrably reduces accessibility to those eligible to vote who may have visited the wrong polling place, are unable to produce required identification, or requested a mail/absentee ballot but did not return it. (See id. at 8.3 Provisional Ballot.) Federal law requires that everyone who attempts to vote must be allowed to do so, either through a regular ballot or a provisional ballot if there is a question to be resolved. (Id.) The provisional ballots should be segregated and secured until officials make determinations of validity. (Id.) Where mechanical or electronic voting machines are used, an alternative method for segregating the provisional ballots should be established. (Id.) Additionally, the number of voters who voted provisionally should be recorded before votes are counted. (Id. at 10.0 Ballot Collection and Counting.) A complementary way to fix inadvertent voting errors is the ability to cure mail/absentee ballots. State laws should provide that if there is an error or omission by the voter, a signature that does not match the signature on file, or the identifying number does not match the registrant, the election officials should notify the voter of the discrepancy and allow the voter to cure the problem by providing the missing information, a missing signature, or a signature that matches the voter’s registration signature. (Id. at 4.5 “Cure” of Mail Ballots & Commentary, 4.0 Voting by Mail/Absentee.) Notice should be provided by mail, and if possible also by email or text message. (Id. at 4.5 “Cure” of Mail Ballots.) “Curing” should be allowed within a reasonable time after the election and before the canvass of the vote is completed. (Id.) Additionally, “curing” should be provided in the same manner for voters with disabilities, because as previously discussed, many disabilities can cause signatures to change over time and voters with disabilities may also use electronic equipment that could inadvertently alter their signature. (Id. & Commentary, 4.0 Voting by Mail/Absentee.)
8. Timing of Results. States must guarantee sufficient time for mail/absentee ballots to be received and returned to balance access to mail/absentee voting with timely processing and counting to ensure voter confidence. (Id. at Commentary, 4.0 Voting by Mail/Absentee Voting.) Long processing times, often because jurisdictions wait to count mail/absentee votes or allow votes to arrive for several days without proof of postmarks on or before Election Day after the election, undermined confidence in the last election and resulted in swings between election night and following days. Mail/absentee ballots should be distributed early enough to accommodate the return deadline. (Id. at 4.1 Voting Procedures & Commentary, 4.0 Vote by Mail/Absentee Voting.) State law should provide election officials the opportunity to process but not count mail/absentee ballots starting ten days prior to the election, to allow for prompt counting and reporting on Election Night. (See id. at 4.3 Processing and Counting Mail Ballots.) For example, mail/absentee ballot envelopes should be evaluated promptly to confirm identifying or required information, and canvassed ballots should be scanned before Election Night. (Id.) As a standard practice, election authorities should require that mail/absentee ballots be received by the close of polling hours on Election Day or postmarked no later than Election Day. (Id. at 4.1(n) Voting Procedures & 4.2 Return of Mail/Absentee Ballots.) States should also clearly determine how long after Election Day to accept timely postmarked mail/absentee ballots. (Id. at 4.3 Processing and Counting Mail Ballots.) If states allow mail/absentee ballots to be returned after Election Day, they should provide clear standards for postmarking the ballots. (Id. at 4.2 Return of Mail/Absentee Ballots.)
9. Information about the Voting Process. Election administrators should proactively monitor and respond to the dissemination of false information regarding the voting process, in the appropriate languages and through appropriate avenues (including electronically and accessibly), especially if specific communities were targeted. (See id. at 1.2 Voter Education Programs; 1.4 Misinformation, Disinformation, and the Voting Process; 6.6 Public Information, Consultation, and Outreach.) Voters should be educated about the potential for misinformation and disinformation regarding the voting process. (Id. at 1.4 Misinformation, Disinformation, and the Voting Process & Commentary, 1.0 Voter Education, Rights, and Responsibilities.) Additionally, election administrators should develop mechanisms to monitor and respond to misinformation and disinformation, such as monitoring mainstream social media and news sources as well as community-specific sources of information like WeChat and WhatsApp, to ensure a timely response and public correction. (Id. at 1.4 Misinformation, Disinformation, and the Voting Process; Commentary, 1.0 Voter Education, Rights, and Responsibilities; 6.6 Public Information, Consultation, and Outreach; Commentary 6.0 – Election Administration.) It is possible to distinguish between disinformation about the voting process, which can be factually countered, from the First Amendment rights of opponents to advocate or criticize the process. (Id. at Commentary, 1.0 Voter Education, Rights, and Responsibilities.) This includes communicating changes in districts produced in census years and now increasingly after litigation. (See id. at Commentary, 1.0 Voter Education, Rights, and Responsibilities.)
10. Trust in Election Administration. Election administrators have coped with changes to the law and process exceedingly well, yet confidence in the administration of elections is in peril. (See id. at Commentary, 6.0 Election Administration.) Public confidence in the electoral process depends in large part on the actual and perceived impartiality and competence of election authorities. (Id.) There must be no appearance of bias on the part of election administrators to protect the integrity of the electoral process. (Id.) Election officials must avoid conflicts of interest and states should establish standards delineating the partisan activity, if any, in which an election administrator may participate. (Id.) All officials responsible for administering elections should feel safe from physical attack, harassment, threats, invasion of privacy, or intimidation. (Id. at 6.7 Personal Security.) Appropriate resources should be dedicated, and safeguards and processes implemented, to ensure election administrators’ safety in the face of threats to and harassment of election administrators, because we need successful, nonpartisan administrators to fill these challenging roles. (See id.) Additionally, to address public perception that new technologies and processes which are advances in access to voting undermine security or integrity within the administration of elections, election administrators should publish handbooks detailing the protocols and step-by-step procedures to be used by election officials. (Id. at Commentary, 10.0 Ballot Collection and Counting.) Where computerized equipment is used for vote counting, tests of the accuracy of each piece of equipment should be conducted both before and after the election. (Id.) Further, each polling place should conduct an audit of all ballots used, unused, counted, and spoiled to account for all ballots, with the numbers reported to the election authority. (Id.) Finally, election officials should conduct post-election risk-limiting audits on all contested races to establish a statistical level of confidence that the reported outcomes are correct. (Id.) Election officials should begin that process by piloting such audits to determine the optimal protocols. (Id.)
Proposed Solutions
We believe these proposed solutions to the identified challenges can match the mission of the ABA Task Force for American Democracy to:
- bolster voter confidence in elections by safeguarding the integrity and non-partisan administration of elections, and by providing support for election workers and officials;
- educate Americans on democracy and the rule of law and why they are foundational to every aspect of American lives; and
- suggest ideas to the American people for improving and strengthening our democracy and our elections.
We have incorporated in the discussion of the Problem Statement portion of this Working Paper observations developed by the Standing Committee on Election Law over the last twenty years. In addition, we offer the following specific ongoing programs.
Safeguarding Administration of Elections
Lawyers are encouraged to support state and local elections offices addressing these challenges directly through Poll Worker, Esq. The ABA, state bars and partners should widely publicize the program and maximize opportunities for CLE or pro bono credit for lawyers involved in upholding the rule of law in elections. The Standing Committee on Election Law also supports a proposal for uniform standards for election audits by CPAs, which would enhance public confidence and help highlight issues that could improve access to registered voters in the future. The ABA should study model rules of professional conduct involving the litigation of election disputes.
Educating Americans on Democracy
The ABA State and Local Government Law Section and Standing Committee on Election Law are supporting Task Force efforts to create an animated “how a ballot becomes a vote” series that will touch on these ten challenges as touchstones. This initiative will be described in a book, tentatively titled Voices of Democracy, to share voices of election administrators, poll workers and others.
ABA divisions have been developing content on election law issues (CLEs) including these challenges and will continue to explore them. (See, e.g., Moore v. Harper in Practice: The Facts and the Future, ABA (Nov. 6, 2023), ABA lawyers stand ready to support expanded law school curriculum that can find new solutions and analyze these challenges, including collaboration with longstanding election law societies at these law schools and newly developing programs.
Improving Elections
Each of the solutions to the access to voting challenges listed in this working paper requires predetermined and clear standards for their implementation. Much of the confusion in recent elections was the result of rules that were not clearly established prior to the election. Many of the rapid changes in the law post-pandemic need evaluation for effectiveness, consistency, and the Rule of Law.
The ABA Election Guidelines, which have been developed by bipartisan discussions within the Standing Committee on Election Law and adopted by the ABA House of Delegates, provide best practices in response to past and current challenges that limit access to the ballot. They will continue to evolve, after each election, under the oversight of bipartisan election law practitioners and experts in a consensus and bipartisan manner. The Guidelines provide a set of standards to be followed, and when implemented by written procedures by state and local election officials, ensure fair and credible elections. We urge careful adherence to them and renewed dialogue between practicing lawyers in the ABA and election administrators through collaboration on improving these guidelines and acting on the recommendations in this Working Paper.