Mail Voting Litigation in 2020, Part III: Challenges Seeking to Expand Delivery Options

This post is the third of a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare’s collaboration with the Stanford-MIT Healthy Elections Project.

This election will see a greater number of mail-in ballots than any general election in U.S. history. What’s more, many voters will be using mail-in ballots for the first time. Millions of voters will thus fill out ballots using an unfamiliar process and then deliver them using infrastructure that, in many cases, was never designed to handle such a massive increase in volume.

Among the many challenges of coping with this reality, states confront two problems associated with the return of mail ballots. First, they must develop a ballot collection system that can handle the rapid growth in mail-in balloting. Some states have chosen to expand the infrastructure for the return of completed absentee ballots, citing the importance of meeting a new surge in demand and protecting public health during the pandemic. Other states, however, have limited ballot drop-off options, arguing that the expansion of vote-by-mail access could lead to election fraud.

Second, states must craft policies that govern how much assistance a voter may receive when filling out and returning a completed absentee ballot. The phrase “absentee voter assistance” often refers to a third party collecting ballots from absentee voters and delivering them to a drop box or elections office. However, it can also refer to ballot delivery, where a third party delivers vote-by-mail ballots or applications to prospective voters. Although some states have made it easier for third parties to assist voters in the vote-by-mail process in 2020, others have fought to preserve bans or limitations on third-party assistance (particularly on ballot collection, which is often pejoratively labeled “ballot harvesting”).

This article—the third in a five-part series from the Stanford-MIT Healthy Elections Project— surveys the major litigation regarding efforts to expand mail-in ballot assistance and mail ballot return delivery issues. It identifies challenges to state laws that prohibit third parties from helping absentee voters complete or deliver their ballots (“absentee voter assistance”). It examines lawsuits around the provision of ballot drop-off locations. And, it discusses ongoing litigation against operational changes at the U.S. Postal Service that may delay ballot delivery in almost every state.

Challenges to laws restricting absentee voter assistance have generally failed. Courts have been reticent to strike down state voting regulations without clear evidence that they place a severe burden on the right to vote. However, litigation over delivery infrastructure (drop boxes and Postal Service changes) has been more successful for vote-by-mail advocates, who have thus far secured several favorable rulings from state and federal courts.

Challenges to Bans on Absentee Voter Assistance

Laws that restrict the ability of third parties to assist absentee voters include laws that restrict the type of person from whom the voter may seek assistance, criminalize the acceptance of compensation for helping return an absentee ballot, limit the number of ballots that a third-party assistant may collect and narrow the circumstances in which an absentee voter may seek assistance. Thus far, plaintiffs have had little success challenging these statutes.

Plaintiffs challenging absentee voter assistance restrictions usually allege two federal constitutional violations. The first constitutional claim is that restrictions on third-party absentee voting assistance are an undue burden on the fundamental right to vote. Courts evaluate laws that burden the franchise under the […]

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