The American Civil Liberties Union of Maine and Maine Conservation Voters have thrown their weight behind a lawsuit that seeks to relax the rules around absentee voting in light of the pandemic.
Two Maine residents joined the Alliance for Retired Americans and Vote.org in filing the complaint in June in Kennebec County Superior Court. They are asking a judge to order the state to accept electronic voter registrations, pay for postage on absentee ballots, count late ballots as long as they are postmarked by Election Day and other changes.
“The rapid shift to absentee voting and transition away from in-person voter services in the wake of COVID-19 represents a significant change for Maine, and unless several unnecessary and burdensome absentee ballot and voter registration procedures are enjoined or modified, that shift threatens to disenfranchise countless lawful, eligible Maine voters, for reasons largely beyond voters’ control,” the complaint says.
The ACLU of Maine and Maine Conservation Voters filed an amicus brief Tuesday in support of the plaintiffs. Their arguments cite both the pandemic and recent changes at the U.S. Postal Service as reasons to loosen restrictions on voting.
“While Maine election practices and procedures have generally served the state well in the past, the twin challenges presented by COVID-19 and the USPS change the calculus governing what is required under the Maine and United States Constitutions,” the brief says. “These threats have raised the bar for the Defendants to justify laws and practices that burden the exercise of the right to vote.”
The defendants are Secretary of State Matt Dunlap and Attorney General Aaron Frey. Spokespeople for both said they could not comment on the case. The state filed an opposing motion Tuesday that argues the proposed changes are not necessary for a safe election.
“In their Motion, Plaintiffs paint a skewed picture of Maine’s election system as both overly burdensome and ill-equipped to serve voters in November,” the state’s motion says. “Quite the opposite is true, as Maine offers one of the most dynamic and forgiving voting systems in the country.”
The state pointed to Maine’s policy of allowing no-excuse absentee voting, as well as multiple options for obtaining and returning those ballots. Maine also allows voter registration up to and on Election Day, and election officials are instructed to contact voters if they see an error that could be corrected.
The Republican Party of Maine, along with the Republican National Committee, the National Republican Senatorial Committee and the campaign to re-elect President Trump, jointly requested intervenor status in the case. Superior Court Justice William Stokes granted that motion last month. In their proposed answer to the complaint, those parties denied that the COVID-19 pandemic justifies the changes demanded by the lawsuit.
Two Maine attorneys who are representing the plaintiffs did not return a message through their office Tuesday afternoon.
Many states, including Maine, have encouraged people to vote by absentee ballot in November to reduce the risk of spreading coronavirus. But as more people plan to use that option, it has come under new scrutiny. Earlier this summer, the state agreed to offer electronic absentee ballots to people who are visually impaired, an accessible alternative demanded in a different lawsuit.
Among the demands in the lawsuit is a change to Maine’s deadline for absentee ballots. Currently, election workers must receive those ballots by 8 p.m. on Election Day for them to be counted. However, the plaintiffs are asking the judge to allow ballots that arrive late to be counted as long as they are postmarked by Election Day. The complaint says at least 500 absentee ballots arrived late in the 2018 general election and were not counted, and the majority arrived one to two days after Election Day. The source for that information is not clear.
The state defended the deadline, saying people have multiple options for returning their absentee ballots and ample opportunity to do so on time. The motion pointed to an ongoing lawsuit over changes to the postal service, which Maine’s attorney general has joined. And it said allowing late ballots to be counted would delay the steps for a ranked-choice tally and the announcement of final election results.
“The State’s extensive precautions, combined with the host of voting options offered to Mainers, ensure that those who wish to vote can do so easily and in an orderly fashion, without fear that doing so will place themselves, or their families, at risk,” the state’s motion says.
The plaintiffs and their supporters also point to other states that have different policies on absentee voting.
The plaintiffs said Maine does not allow online or electronic voter registration, unlike 40 other states. People can register to vote on a paper application, but the complaint called that process “cumbersome.” The plaintiffs also allege that Maine’s rate of voter registration has declined since the start of the pandemic, but they did not cite a source for that claim.
In their brief, the ACLU of Maine and Maine Conservation Voters said at least three states – Kansas, Iowa and West Virginia – provide prepaid postage for voters.
The local plaintiffs are Doug Born, who lives in Cumberland County, and Don Berry, who lives in Oxford County. Both are officers in the Maine Alliance of Retired Americans.
Born is 58 years old and lives with his father, who is 98 years old. The complaint says he has already requested his absentee ballot, but he will be required to buy postage. It also says he is worried about his ballot not arriving by the deadline to be counted – 8 p.m. on Election Day.
Berry is 68 years old. The complaint says he has health conditions that put him at higher risk if he contracts COVID-19, and he shares many of the same concerns as Born.
The national Alliance has filed similar lawsuits in at least seven other states, including Pennsylvania and North Carolina.
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