Kennebec County Superior Court Justice William Stokes said Monday he will carefully consider three factors in a lawsuit asking him to order Maine’s top election official to extend the deadline for accepting absentee ballots in the November election.
The lawsuit is one of dozens filed around the country by the Alliance for Retired Workers and Vote.org seeking to loosen absentee voting laws in response to the COVID-19 pandemic.
Stokes said he will consider whether the burden on voters casting absentee ballots during the pandemic is too great under Maine’s current system, whether he has the authority to change the laws, and whether it’s in the state’s interests to stay with the current system to protect against voter fraud.
Stokes will hear closing arguments in the case during an 11 a.m. hearing Tuesday. Lawyers representing Maine Secretary of State Matthew Dunlap, the plaintiffs, the Maine Republican Party and President Trump’s re-election campaign will present arguments.
As of last week, Maine voters have asked for nearly 200,000 absentee ballots for the election, which features races for president, the U.S. Senate and all 186 seats in the Maine Legislature.
Presently, 19 states and the District of Columbia allow ballots postmarked on or before Election Day to be counted. While some states have relatively short windows, others allow ballots to be counted up to seven days after the election.
The lawsuit would also force Maine to move to an online voter registration system. Maine is one of only 10 states that does not allow voters to register online.
The ACLU of Maine and the League of Conservation Voters have filed an amicus brief in support of the plaintiffs in the case.
“The Maine Constitution guarantees the right to vote safely,” Zach Heiden, chief legal counsel for the ACLU of Maine, said in a prepared statement. “In the midst of a global pandemic and a management crisis at the U.S. Postal Service, the practices that have served this state so well in the past are no longer enough. The court has an opportunity here to make sure that all eligible voters are able to register and vote with as little difficulty as possible.”
Stokes heard about four hours of testimony Monday from a pair of expert witnesses: Professor Michael Herron from Dartmouth College and recently retired U.S. Postal Service Deputy Postmaster General Ronald Strohman.
Both testified that Maine should allow absentee ballots sent by mail to be counted after Election Day if they are postmarked by Election Day. Maine’s current law requires that all ballots be received by 8 p.m. on Election Day.
Strohman cited concerns about ongoing mail delivery delays that could leave some absentee voters disenfranchised under current Maine law. Because state law allows voters to request an absentee ballot as late as five days before an election, voters may incorrectly believe that a mailed ballot will definitely arrive in time to be counted.
“I think there is a high degree of likelihood that some voters are going to have their ballots invalidated,” said Strohman, also an attorney.
“If the goal is to count ballots, to enfranchise your voters, if that’s the goal and they then exercise their rights consistent with the statute it seemed to me that, in my experience, having a postmark worked well to give a greater likelihood that that ballot is going to be counted and that person’s vote is going to be counted,” Strohman said.
Herron, the Dartmouth professor, has studied and written extensively on voter fraud by mail, largely dismantling allegations that it is widespread, an argument made by Trump, his surrogates and Republican supporters.
Herron presented data suggesting the pace of voter registrations slowed considerably after the pandemic hit Maine.
Asked how he would create a perfect voting system, Stokes said that even the Legislature, given months to work on election laws, has been unable to come up with a system that works 100 percent of the time for everyone.
“Life presents a lot of dilemmas,” Stokes said. “This particular pandemic has created dilemmas for us all.”
Herron agreed that the state can’t create a perfect system, but said the question should be whether the state wants rules that support those who might have the most difficulty voting – the impoverished, the disabled and the elderly.
“When you think about your decision my advice would be, not perfection, but trying to do what we can to make sure that those people have a good chance of being able to vote successfully,” Herron said.”Because if they do, then everyone else will be able to, too.”
Attorneys for Dunlap and Trump argued that Maine’s voter participation rates are among the nation’s highest, and that the number of absentee ballots rejected because they arrived late is relatively small. Most of those were postmarked on or after Election Day, they said.
Stokes said he intends to rule by the beginning of next week.
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