Covid-19, Mail-in Ballots and Expert Witnesses

Georgia Federal District Court dismisses action challenging requirement to pay postage for absentee ballots during Covid-19 despite expert witness testimony

With no end in sight for Covid-19, the upcoming election in November 2020 is likely to see the highest number of mail-in absentee ballots in the history of the United States. While some states are providing postage-paid envelopes for mail-in and absentee ballots, there are others like Georgia, that have asked voters to pay for their own postage. 

Aggrieved by this decision of Brad Raffensperger, the Georgia Secretary of State (“Secretary”) and the DeKalb County Board of Registration & Elections (“DeKalb BOR”), Plaintiffs Black Voters Matter Fund Megan Gordon and Penelope Reid filed this putative class action alleging that the Defendants had violated their Twenty-Fourth and Fourteenth Amendment rights, and restricted their right to vote as per the First and Fourteenth Amendments by requiring Georgia voters to pay for their own postage for absentee ballots. They sought an injunction and a declaration that the requirement was unconstitutional and demanded that the Court mandated that Defendants provide prepaid postage returnable envelopes for absentee ballots or postage. The Secretary and the DeKalb Defendants moved to dismiss.

The Expert Witnesses

Plaintiffs proffered the evidence of two expert witnesses, Dr. Arthur L. Reingold and Dr. Matthew A. Barreto.

Dr. Reingold was the Head of Epidemiology and Biostatistics Division at the School of Public Health, University of California , Berkeley, and had focused on the prevention and management of infectious diseases in the United States, including eight years at the US Centers for Disease Control and Prevention (CDC). He stated that voting in person at the polling booth posed a risk of spread of the COVID-19. Voting booths are a prime area for intensified transmission of the virus owing to the proximity of a large number of individuals — voters, participants, poll workers — in a small area. The polling station also has a wide variety of specific objects that many people touch: locks, polling books to sign in, voting booths, voting machines, and pens. Due to virus transmission via contaminated environmental surfaces, polling sites are highly likely to cause increased infections. He therefore argued that voting by mail or postal voting would be a much better choice for public safety in the light of COVID-19.

Dr. Barreto earned his Ph.D. in Political Science in 2005 and since 2015, he has been Professor of Political Science and Chicano Studies at the University of California, Los Angeles, and director of faculty of the UCLA Voting Rights Project, a collaborative venture of the Department of Social Sciences, the School of Public Affairs and the School of Law. Dr. Barreto was retained by the Plaintiffs to determine whether there are any restrictions that voters in Georgia could face if they were forced to receive and pay for their absentee ballots. He began his analysis by conducting a comprehensive literature and demographic analysis of Georgia. He also performed an overview of the nationwide voting records for Georgia, geocoding the address of each elector and comparing it to the closest postal service or place that sells stamps. Dr. Barreto argued that the necessity for voters to buy their own postage stamps imposes a burden on voters, especially low-income and minority voters and those in rural areas. Dr. Barreto identified several burdens on purchasing online stamps as alternatives, such as the need for an internet connection, a credit card or bank account, computer literacy, and a minimum of $7.90 for stamps.

The danger of Covid19 and Voting in person

The Georgia District Court noted that it was not the first to address election regulations during the COVID-19 outbreak and Courts in Wisconsin, Alabama, Texas and Ohio had already discussed the issue earlier in the year. After discussing these cases, the Court also discussed the cases arising out of Hurricane Matthew and its effect on the 2016 elections where the Plaintiffs argued that “Hurricane Matthew not only forced many of those voters to evacuate the state, but also foreclosed the only methods of registering to vote: in person or by mail”. In this case, it was held that the burden on the state (to extend the deadline for voter registration) was outweighed by the burden that it would have placed on the voters by completely disenfranchising thousands of them.

Comparing the situation to the present Covid-19 crisis, the Court noted that it could not be said that the burden of obtaining postage was severe, and instead characterized it as moderate for present purposes. On the other hand, the “[f]iscal responsibility [of the state], even if only incrementally served, was undeniably a legitimate and reasonable legislative purpose.” The Court also noted that

“The Supreme Court appears to have signaled that in light of the COVID-19 pandemic, where the state has taken concrete and constructive action to protect the right to vote, the Court must be cautious in second guessing this action. “

Republican Nat’l Comm., 140 S. Ct. at 1207–08 (April 6, 2020)

Eventually, on August 28th, the Court entered judgment for the Defendants and dismissed the case.

Read the Court’s opinion dated August 11, 2020 here.