Alabama’s largest cities pressure lawmakers on ‘no-excuse’ absentee voting

Alabama Secretary of State John Merrill

Alabama Secretary of State John Merrill (Mickey Welsh/Montgomery Advertiser via AP)AP

Three of Alabama’s largest cities are poised to adopt resolutions arguing in favor of no-excuse absentee voting even as the state marches toward this year’s elections with the excuse provision in place.

Mobile could join Birmingham and Huntsville on Tuesday in supporting similarly-worded resolutions that supports an option for residents to vote absentee during the coronavirus pandemic without having to submit an excuse as to why they are not showing up physically at the polls on Election Day.

“What we want to do is ensure that those who have underlying health conditions and those who are of the senior population are not fearful of engaging in the democratic process,” said Mobile City Council President Levon Manzie.

The timing of the resolutions is likely not going to matter during this year’s elections, and the Alabama Republican Party says they “lack teeth.” The runoff contests are scheduled for July 14, followed by the general election on Nov. 3. A majority of Alabama cities are also scheduled to have mayoral and council elections on Aug. 25. The Alabama Legislature is not scheduled to meet until the spring of 2021.

‘Stringent requirement’

Alabama Secretary of State John Merrill said he was aware of the resolutions and urged the council members to “drop legislation in the 2021 legislative session” and debate the issue.

“We believe that the Legislature has a responsibility to evaluate the merits of a bill introduced and we will offer advice and counsel when solicited,” said Merrill, who in 2018, called the excuse provision “long-outdated” and inconvenient to people. Merrill has said it’s up to state lawmakers to decide whether to do away with it.

Under Alabama’s current law, an excuse is required for someone to vote absentee and Merrill is suggestion applicants check the following excuse provision: “I have a physical illness or infirmity which prevents my attendance at the polls.”

The deadline to submit absentee ballot applications is July 9, and the deadline to return an absentee ballot to an absentee election manager at 5 p.m. on July 13, which is the eve of the runoff election. The last day to postmark an absentee ballot is July 13.

But the coronavirus pandemic has raised concerns from civil rights groups and others over whether voters will pursue absentee ballots, which are accessible online, or whether they will stay away from the polls over fears of contracting coronavirus. Two organizations – the League of Women Voters and the Southern Poverty Law Center – have filed lawsuits challenging the process to vote ahead of the elections, including taking aim at the absentee voting requirements.

“In these uncertain times – especially when Alabama is seeing more COVID-19 infections, not fewer – it is vital that Alabamians have the option to use absentee ballots if they are concerned about voting in person,” said Randall Marshall, executive director with the ACLU of Alabama. “In short, there should be a ‘no-excuse’ absentee ballot access that can be easily utilized by voters without onerous requirements for a copy of an ID, witnesses, or a notarized signature. Every Alabamian should be confident that their irrespective of how they vote, their vote will be counted.”

Said Manzie, “Right now, it’s a stringent requirement.”

‘Follow the law’

Merrill said he doesn’t believe the process is onerous, nor “heavy-handed.” He said that “all anyone has to do is follow the law” and comply by the requirements of filling out an absentee ballot that is marked on the application forms. He said there are no restrictions on who can be a witness to someone’s signature on an absentee ballot, noting that instructions are “clearly indicated on …the envelop.”

His viewpoints are echoed by Terry Lathan, chairwoman with the Alabama State Republican Party. She said the resolutions being adopted by the cities “have no legal teeth” and that she believes there isn’t “any appetite to change the system now.”

“The absentee ballot process has multiple reasons for a voter to give for not voting in person,” said Lathan. “In fact, over the years, it has expanded the reasons. Our state keeps breaking voting records with all-time high voter registration.”

Merrill has long touted the increase in voter registration since he took office in 2015. Today, there are over 3.5 million registered voters in Alabama, up from 2.9 million in 2015.

Alabama law allows for several excuse provisions. Aside from the illness provision, they also include: Being outside their home county or state on Election Day, working a shift that occurs during all voting hours, students living outside their home county, caregiver for someone who is confined to his or her home, and if they are an election worker or poll worker.

Michael Morley, an assistant professor at Florida State University’s College of Law and an election law expert, said Alabama – while one of the minority of states with an excuse provision – is “far from the strictest excuse-based voting jurisdiction.”

Alabama is one of 16 states that requires voters to provide an “excuse” as to why they will not be able to show up and vote on Election Day. The other 34 states and Washington, D.C., do not require an excuse. Five states conduct elections entirely by mail (Colorado, Hawaii, Oregon, Utah and Washington) which means voters do not need to request a ballot, and instead automatically receive one. The other 29 states and D.C. offer “no-excuse” absentee voting, which means any voter can request a mail ballot without providing an excuse, according to the National Conference of State Legislatures.

“Alabama recognizes several categories of people as eligible to vote absentee and is far from the strictest excuse-based voting jurisdiction in that regard,” said Morley. States like New York, Connecticut, Mississippi and Arkansas have fewer eligible excuse categories, according to an analysis by NCSL.

“Precisely because absentee voting involves allowing ballots to leave election officials’ control and be transmitted throughout the state, it is important to have safeguards in place to ensure that the person who cast the ballot is the voter entitled to do so,” said Morley.

Lawsuits

Some of the state’s requirements are being challenged in court. The League of Women Voters filed their lawsuit in Montgomery Circuit Court asking a judge to require state officials to use emergency powers to waive the notary or witness provisions, the requirement to supply a copy of a photo ID and to extend no-excuse absentee voting into the fall.

The SPLC’s lawsuit challenges the requirement of having a witness to vote absentee claiming that it’s a violation of federal voting rights law.

Said Merrill, “All anyone has to do is follow the law and when they follow the law they can comply and vote absentee. We are not going to change the law just because some people don’t like it.”

The SPLC claims, though, that the U.S. Department of Justice, since 2017, has done nothing to protect federal voting rights laws which they believe Alabama is breaking through the absentee balloting process.

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FILE - In this April 7, 2020, file photo voters line up at Riverside High School for Wisconsin's primary election in Milwaukee. (AP Photo/Morry Gash, File)AP

Having elections during the pandemic has generated some negative attention in states that proceeded with elections while COVID-19 was spreading. Wisconsin, which held its elections on April 7, state officials are attributing more than 70 cases of COVID-19 to people who either visited or worked at the polls. In Illinois, a poll worker in Chicago died from COVID-19 complications after working the March 17 primary.

Alabama was originally scheduled to have its primary runoff elections on March 31, but the date was moved as strict social distance and “Stay at Home” provisions were being implemented by health officials. Merrill said in March that the rescheduled July 14 runoff date would not be moved again.

“Especially in light of COVID-19, which is likely to still be with us this fall during the general election, we need Alabamians across the state to demand from Gov. (Kay) Ivey, Merrill and our local election officials that no voter has to choose between their health and their vote in the 2020 elections,” said Caren Short, senior staff attorney with SPLC.

Resolution concerns

She said the SPLC was “happy to see local city councils” support no-excuse absentee balloting resolutions, and urged Mobile to follow suit.

“Reversing the legacy of voter suppression and its present-day manifestation in Alabama and across the South is going to take a grassroots movement made of voters, elected officials and advocates,” said Short.

At least one of the cities has backed away from its resolution. The Montgomery City Council, which was poised to vote on a similar resolution on May 19, withdrew its proposal after City Council President Charles Jinright discussed the issue with Merrill and “was satisfied that there was adequate provision for concerned citizens to vote,” said Montgomery City Clerk Brenda Blalock.

In Mobile, there is no guarantee the resolution will be approved. Councilwoman Bess Rich said she felt having someone check the medical reasons for being unable to physically go to the polls was a “reasonable and legitimate reason.” She said she doesn’t agree with having a “no excuse” provision placed on paperwork for absentee ballots.

“I think our Founding Fathers, those who died to protect our freedoms and civil rights leaders would be very disappointed in all of us,” said Rich. “The act of voting in person assures the security of our privilege and honor to cast our votes.”

‘Changing every day’

Voting

Long lines were a prevailing sight at polling places throughout Alabama during the Tuesday, November 6, 2018, Midterm elections. In this picture, dozens of people wait in line to vote at the Mountain Brook Community Church. (Connor Sheets/csheets@al.com).

The coronavirus pandemic is adding new challenges to in-person voting, and election officials are wrestling with how they can make voting centers safe. Mobile County Probate Judge Don Davis, in a May 4 letter to Merrill, said he was “at a loss” on how the county can run the elections while adhering to the Centers of Disease Control and Prevention’s social distancing guidelines.

Sneeze guards and sanitizer: Alabama election officials prepare for July 14 runoff

Alabama continues to see an increase in cases. The state experienced an all-time high this week in its seven-day average of new COVID-19 confirmations and public health officials have attributed that to an increase in testing but also in a loosening of social distancing restrictions throughout this month.

Birmingham City Councilor Crystal Smitherman, in a statement when Birmingham adopted its resolution in late April, said the COVID-19 situation is “changing every day” and that it was crucial for people to have an opportunity to vote during a public health crisis. Her father, state Sen. Rodger Smitherman, D-Birmingham, was the last lawmaker to pitch state legislation to do away with the excuse provision, but it went nowhere in the Legislature this spring.

“Every person in Alabama needs to have peace of mind knowing they can participate in our democratic process without putting themselves or others in harms’ way,” said Smitherman.

Dr. Rachael Lee, assistant professor in the division of infectious diseases at the University of Alabama at Birmingham, said that concerns at the voting places will be “multiple fold.” She said election officials will have to ensure that people standing in line are not close to each other and that there is enough of a distance inside a polling place of people from sitting too close to each other.

She also said that voting screens and other objects inside a polling place will have “to be wiped down.”

Lee said there has to be a “healthy balance” of election security, ballot access and voter safety this year.

“Maybe we shouldn’t be voting only just one day,” Lee said. “I know we’re so used to that, but we have to think outside the box in terms of protecting people.”

Merrill said that Lee and other health experts are entitled to their opinion, but that doesn’t foresee any sweeping changes such as the one she suggests.

“The facts in Alabama is that we consistently breaking records for voter participation and we’ve been … promoting the election date and the opportunity to participate,” said Merrill. “People are responding and have been doing that consistently (during my tenure as Secretary of State).”

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