Plain Language of the COVID-19 Voting Bill Just Passed

Introduction

Since I've become a bit of local resource on voting rules and regulations (but have the freedom to speak my mind as I don't work for the Town), I thought I'd do a small summary of the bill just passed by the Massachusetts Legislature (H4820) to prepare for the remaining elections this year due to COVID19.

First, a few caveats:

1. I am not an expert on election law. I do have some professional expertise in reading policy and bill texts, but not on elections specifically. Elections have been a bit of a hobby of mine and I have now worked as an Election Worker for about 12 years, but outside of those couple days a year, I do not have any official attachment to any organization on these items.

2. I think I have a good grasp on what I've read here but I am able to make mistakes. 

3. I live in Brookline, I am mostly writing this through the lens of Brookline, but broadly this should apply anywhere. Anywhere I write "Town," "City" should equally apply.

4. Take this post as a general overview of what is happening in the Massachusetts elections world but any specific rulings on any items should be sent to your Town Clerk or City Election Commission. 

I've structured this post in more-or-less chronological order and put any big important items in bold text.

Voter Registration

Section 18 

BIG ITEM. The deadline to register for any election has been moved up to only 10 days before each election (compared to the normal 20). Clerk's offices are also required to have a registration session, at a minimum, from 2-4pm and 7-8pm on the final allowed day before each election. 

Allowances for Early Vote and Early Vote-by-Mail

Sections 6b, 6c, 7a, 7b1, 7b2, 10, 15

One of the major things this law does is specifically allow Early Vote and Early Vote-by-Mail for ANY election in the state the rest of this year. Without this change, early vote would only have been allowed for the November General Election. This law says that the State Primary (in September) and any other local elections through 31 December (e.g., a concurrent municipal election in Cities this November or a separate election like a special override) also will have Early Vote (including Early Vote-by-Mail).

For those who prefer absentee voting (see differences below), the law also makes explicit that guidance from your doctor or a public health authority about risks of COVID19 is a valid reason to request an absentee ballot (one would check the "physical disability" box, according to the law).   

Disseminating Information about Early Vote and Early Vote-by-Mail

Sections 6d1 - 6d3, 6d5, 6g2, 24

This law calls for a lot of public information about Early Vote. Any voter registered as of July 1 will get an application for Early Vote-by-Mail for the September election mailed to them by July 15 (note that's the date it has to be mailed, not received). For the November election, it's September 1 and September 14. 

If you miss one of those deadlines but still register in time for an election (see above), your confirmation letter will also include an application to Early Vote-by-Mail. All mailers must conform to rules on additional languages as required by the Voting Rights Act (I do not believe Brookline has any such requirements but other MA localities do).

NOTE: If you already requested an absentee ballot or have an on-file request for absentee ballots for the full calendar year, you will NOT receive these mailers. 

The Secretary is also required to engage in an awareness campaign about your rights to vote in person if you request an early vote-by-mail ballot but did not receive it or return it on time.

Confused about Early Vote, Absentee Vote? More Info is available at the bottom of this post.

Requesting to Vote-by-Mail

Sections 1, 2, 6d4, 6d5ii, 6d6, 6e, 6f, 6g2,16, 14

A lot of good news here should clear up a lot of the problems we had with the Town Election in June.

All those notifications you'll get by mail about the right to early vote? That application will come with a postage-paid envelope to return to Town Hall. The application is also required to be on the Town website.  But you don't have to submit the application, ANY form of written (including electronic) communication indicating your desire to early vote-by-mail is allowed. 

Clearing up a BIG concern from last time, electronic signatures ARE allowed as long as its form is "substantially the same manner as a handwritten signature." This clearly eliminates the "electronically signed" Acrobat type of signature but it's unclear to me if a script font (as Adobe can create) is sufficient of ir it must be substantially the same as your own, requiring the use of a mouse or touchscreen. 

Another snafu cleared up is the deadline to send a request to early vote-by-mail (or absentee vote-by-mail). The old rules let you apply as late as the day before the election, making it impossible to get a ballot back to you by mail and then for you to return it in time. Aside from the vast amounts of frustration, it was a LOT of work for Clerk's offices to log requests and mail out ballots impossible to return. Now, all requests to vote-by-mail must be received by the 4th business day before the election. This is August 26 for the primary and October 28 for the general election

In Boston, you can request a ballot in various languages (if available for your precinct/ward).

BIG ITEM, but potentially only for the General Election, the law requires the State to set up a website to request your early vote-by-mail ballot. It is required to be operational by October 1 with a desire to have in place for the primary. It would be a nice bonus but I wouldn't count on it.

Receiving and Returning Vote-by-Mail Ballots

Sections 2, 5, 6g1, 6h1-6h3

Clearing up a couple of snags from the June election, this bill makes a few changes to improve process in receiving and returning your ballots. First, the Town can mail out the ballot as soon as they have the materials in hand. They do not have to wait until the early vote-in-person period begins. This should help get ballots out more quickly (especially given how many they'll have to mail) and give people more time to fill them out.

The law also clarifies that ballots can be returned by mail or in-person at Town Hall, as before... but also the Town can create a secure drop-box for dropping off ballots. This is great in that it expands drop-off hours but also ensures that people can drop off ballots even if government offices are closed to the public for COVID reasons. 

BIG ITEM, mailed ballots will be postage paid.

BIG ITEM, for the general election, the State is to come up with a system to mark ballots when they are received by the post office.

BIG ITEM, for the general election, ballots will count if they are postmarked by the post office by November 3 as long as the ballot is received by the Clerk's office by 5pm on November 6.  

Early Vote in-Person and Absentee Vote in-Person

Sections 7b1 - 7b3, 7c1 - 7c2, 7d1 - 7d3

Early vote-in-person will take place for both the primary and general elections. No big surprises here. Anyone qualified to vote in in person on election day is eligible to early vote in person. Dates for the primary are August 22 - August 28 and October 17 - October 30 for the general.

Early vote-in-person must be available at Town Hall, but other sites can be added. The deadline for determining sites is August 7 (announced by August 14) for the primary and October 2 (announced by October 9) for the general.

The law also specifies the minimum hours early vote is required to happen. It must be all hours the Clerk's office is open plus (likely) 5 hours a day on the weekend for Brookline. This minimum on weekends is based on the number of registered voters, so if Brookline crosses over to 40,000 registered voters, it will be a minimum of 6 hours per weekend day. In any case, the Town can choose to do more hours than required. 

Accommodations for those with Disabilities, those Admitted to Health Care Facilities, and those Required to Quarantine for COVID19

Sections 4, 6i, 17

Apologies as this is really two different topics squished into one here. 

First, there are a bunch of options/protections for people admitted to health care facilities in the days leading up to the election (when requesting an absentee ballot may be difficult to achieve). I frankly do not entirely understand these processes but... what changed here is that the window to qualify for this alternative access to voting was pushed out to 7 days before the election (rather than 5), and anyone asked to quarantine for COVID also can utilize this process even if they are quarantining at home rather than at a healthcare facility. 

Second, the Secretary is required to create a accomodations for those with disabilities that would prevent early vote-by-mail using the processes above. This includes options such as a ballot that can be delivered and filled out online (e.g., using a screen reader and keyboard). NOTE: THIS IS STILL NOT ELECTRONIC VOTING (and all of the problems that can cause). These accommodations would still result in a paper ballot that is printed and mailed/delivered to be counted like all other ballots, the accommodation is to allow people with certain disabilities to independently receive and mark their ballots ONLY.

Voting in Person on Election Day

Sections 11, 13, 19

Polling locations may be changed to serve public health needs, including the possibility of having ALL POLLING take place in a single location in the same building. However, any change in polling place requires an analysis based on disparate adverse impact based on race, national origin, disability, income or age and must publish the report BEFORE changing the polling place. 

Brookline specific, but I wonder if this analysis will be required given that the Town already changed locations for the June election and/or if this potentially opens the Town up to a lawsuit if an analysis could reasonably have found disparate impact and/or if the law that allowed for June town elections had a safe harbor on this. Anyway, if I was the Town's lawyer, I'd be making some calls.

Any change in polling places must be widely advertised, including emailing or using a town call out (reverse 911, alerts, etc) system if possible. 

The law also gives Town Clerks the option to remove the check-out process after marking a ballot but before putting it into the ballot box. This opens up some small possibilities of error in marking the voting lists but reduces the amount of (socially distant) queuing required inside the voting area (which is often cramped) and frees up poll workers to do other tasks (including processing the mountains of absentee and early vote ballots). I have no idea of Brookline will take up this option or not.

Finally, the Secretary of the Commonwealth is required to pass emergency regulations for health and safety at the polling places.

Interesting Process Stuff

Sections 7i, 7j1 - 7j2, 7k, 21, 22

Most of this isn't particularly relevant to most people but if you're an election nerd, some of this is interesting or notable

• A voter who votes early and then dies before election day will have their vote counted (this is not normally the case)
• Early and absentee votes can be opened and counted before election day as long as the ballots are stored securely and no results are released (I'm VERY curious to know if Brookline will opt to do this!)
• Early vote-in-person sites may have a police officer present but it is not required
• After the experiences this year, the Secretary must issue a report on potentially improvements for accessibility (including the option of online voting for people who need it)
• By July 1, 2021, the Secretary must report the costs of implementing this law.

Boring Process Stuff

Sections 7e - 7i, 8a, 8b, 9a, 9b, 9c, 12, 20, 23

Even if you're an election nerd, some of the process stuff still isn't interesting.

• Requirements about preparing voter lists, how early voters are marked on voter lists, how lists of early voters are made (yes, that's different), how unenrolled voters (not members of a party, which people informally call "Independent") or members of a political designation are listed in the voting list
• Requirements about the envelope used for early voting
• All materials from the State to the Town for the primary election should arrive by August 3
• All materials from the State to the Town for the general election should arrive by October 9
• Requirements for retaining ballot envelopes, clarifications about application of existing regulations, clarifications about existing post-election audit-rules
• Requires the State to certify electronic voting books in time for the election (Brookline already uses these tablets to check in voters for Early Voting-in-Person. This could be actual news if it means using them on Election Day).
• Clerks can circumvent some rules on hiring election workers (e.g., some towns require you to reside in the Town where you are working) due to shortages from COVID. 

What is Early Vote and Early Vote-by-Mail and why aren't you talking about Absentee Voting?

Unfortunately, Massachusetts has a confusing system for voting rules for a variety of reasons that are tied up in electoral politics, the nature of the State constitution, and other boring things. The why's are not particularly relevant here, but basically there are 4 ways someone can vote other than being at the polling place on election day.

• Absentee Vote In-person: You can go to your clerk's office and request to vote absentee while you are in the office. Absentee voting technically requires a reason you cannot be at the polls on Election Day and the reason must be on the rather short list allowed by law, though this is entirely unenforceable. Note: Elsewhere in this law, it is explicitly said that public health directives around COVID19 count as a "disability" and is an allowed reason to absentee vote. 
• Absentee Vote-by-Mail: Same as above, but you can request your ballot by mail (including e-mail), and have it delivered to you by the U.S. Postal Service and then submit it by mail or in person when complete.
• Early Vote In-person: This was passed in 2016 to resemble the early voting people see elsewhere in the country. Towns can set up one or more locations to vote in-person in a voting booth. Unlike absentee voting, no excuse or reason is required, however, the dates and times for Early Vote are very tightly constrained and the current law allows it ONLY for November elections in even years (though, as you have experienced, they have allowed it for other times ad-hoc).
• Early Vote-by-Mail: Frankly, I had no idea this existed until we had one of these show up in my precinct in 2018. I'm not entirely sure I understand what use case the legislature had for this in 2016, but you can request an excuse-free early vote in the mail.

Why are there Two Options to Vote by Mail? What's the Difference in Real Terms?

I am not sure why we continue to have these two options. Other than the "excuse" bits, they're nearly identical to voters. Given that this COVID law calls COVID itself a valid excuse for absentee, the really are the same to voters, the ballots are processed a bit differently by the Clerk's office, though I can't say I have intuition about which is easier or if it's just a pain to have two systems. That said, the law is clearly trying to encourage early vote-by-mail (rather than absentee) with most of the changes listed in this post. 

----------------------------------------------------------------------------------------------------

If you have questions, you can probably find me on social media (which is probably how you got here) or email me things at acrossb.com