Summary

On the afternoon of March 20, 2020, James Nelson, a Black, 66-year-old longtime resident of Milwaukee, Wisconsin, went to the Midtown Center and voted early in person for the presidential primary that was taking place a couple of weeks later. “I always vote early but this year my decision was for health reasons,” Nelson said. He did not want to risk contracting Covid-19 at his polling place on election day.

His fears were well-founded. According to state data analyzed by the Associated Press, in March about half of Wisconsin’s confirmed cases of Covid-19—411 out of 842—were in Milwaukee. At the time, all eight people who had died of complications from the virus in Milwaukee County were Black.

On the state’s primary election day, April 7, Nelson, who has a long history of activism in his northside community, was curious about how it was going, so he took a long walk to the polling station to watch from afar. He told Human Rights Watch he was shocked by the long lines and the crowds. “There were old folks waiting. Some in walkers. People who looked like they were in their eighties, bent over and could barely walk,” he said. “We have to do better.”

It is not easy to hold an election during a global pandemic. However, election officials in Wisconsin made decisions that, even considering the difficult circumstances, violated citizens’ fundamental human right to vote. Milwaukee officials decided to reduce the standard 180 polling places—many of which were in small locations where social distancing would have been difficult—to five sites located in public high school gymnasiums. Reducing the number of polling places instead of increasing the number of sites is exactly the opposite of what should have happened, especially because historically disenfranchised racial minorities often feel most comfortable voting in person and reducing lines and crowds would have been advisable due to the Covid-19 pandemic. Other adjustments to secure poll workers, facilitate absentee voting, and to better support Wisconsin’s municipal clerks should also have been made. None of this would have been easy, but other US states, as well as other countries, such as South Korea, Indonesia, and North Macedonia, have shown that it can be done.

The United States will hold general elections in the midst of the pandemic on November 3, 2020. As Nelson said, the country has to do better. Doing better will be up to state and local officials working to administer the 10,000 different election jurisdictions that make up the decentralized system of elections in the United States.

This report examines changes made by election officials during the 2020 primaries in Arizona, Pennsylvania, South Carolina, and Wisconsin and their impact on voters, assessing the measures against international human rights standards. Fears of virus transmission to both voters and election workers led state and local election officials to make various changes in the voting process, including to the numbers and locations of in-person voting sites, and adjustments to “special voting” such as early, absentee, and by-mail voting. We identify lessons learned and pathways for reform for the upcoming and future elections.

Historically, many groups in the United States have had their voting rights suppressed. Even after the enactment of the 1965 Voting Rights Act, Black, Latinx, and Native American citizens experienced many obstacles to voting. Changes by some states in recent years, including those enabled by a 2013 US Supreme Court case—Shelby County v. Holder, which eviscerated federal oversight under the act—have made voting harder, not easier. The Covid-19 pandemic has exacerbated these problems. While changes are needed to ensure elections are safe, we found that some measures taken to address the Covid-19 pandemic in Milwaukee have had discriminatory impacts on Black and Latinx populations. Other measures taken in Philadelphia, Pennsylvania and in South Carolina may have negatively impacted the voting rights of Black people. If the same or similar mistakes are made in these jurisdictions or elsewhere in future US elections, such measures are likely to have discriminatory impacts on Black, Latinx, and Native American voters.

These same populations are disproportionately impacted by the Covid-19 virus. According to data through the end of May obtained from the Centers for Disease Control and Prevention by the New York Times, Latinx and Black residents of the United States have been three times as likely to become infected as their white neighbors, and Black and Latinx people have been nearly twice as likely to die from the novel coronavirus as white people. According to a separate Centers for Disease Control and Prevention study, the incidence of Covid-19 cases among Native Americans was three-and-a-half times that among whites as of July 2020.

The Covid-19 pandemic also has had specific impacts on elections, increasing voters’ fear of voting in person, which is especially wrenching for populations that normally prefer going to the polls. The pandemic also has required election officials to accommodate new requirements for social distancing and personal protective equipment; and to pivot when poll workers, many of whom are older adults, did not feel safe working the polls. Jurisdictions that were inexperienced with large numbers of absentee or vote-by-mail ballots have had to adjust to an unexpected spike in these forms of “special voting.”

Some states and municipalities we examined took steps to protect voting rights by creating new voting centers, recruiting new and more poll workers, increasing awareness and ease of early in-person absentee and mail-in voting, and adopting various protective measures to prevent the spread of Covid-19 during in-person voting.

However, Human Rights Watch’s interviews with experts and voters and analysis of voting data show that some aspects of elections procedures during the 2020 primary season negatively affected the right to vote. These included:

• Decisions to relocate, close, and consolidate polling places. In some jurisdictions, in-person voters were forced to search for new polling locations, wait in long lines, or make no-win choices between their health and their right to vote. These changes prevented some citizens from voting, a human rights violation disproportionately suffered by Black and Latinx populations in Milwaukee, Wisconsin; and, given many Black people’s preference for voting in person, likely suffered disproportionately by Black people in Philadelphia County, Pennsylvania and Richland County, South Carolina.
• The failure to take steps to overcome bureaucratic, linguistic and other barriers to absentee voting or voting by mail. While many voters persevered, these challenges prevented other people, including Black, Latinx and Native American people, from voting altogether.
• Failures to inform voters of the above measures effectively and in a timely fashion, which exacerbated negative impacts on the right to vote.

Since the 2020 United States primary season, and in the lead-up to November’s general elections, some of the states and municipalities examined for this report have taken steps to improve voter access. Nevertheless, authorities at all levels and throughout in the United States should do more to ensure that all citizens are able to vote freely without discrimination.

Elections in the United States are guided by federal, state, and local laws and regulations. International human rights law to which the United States is party also sets out important voting rights. Provisions in the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination obligate governments at all levels to take effective measures to ensure that all persons entitled to vote are able to exercise that right, and forbids laws and policies that have a racially discriminatory impact, regardless of intent. The Covid-19 pandemic places additional burdens on officials tasked with ensuring this basic right. Federal, state, and local officials should take all necessary measures to ensure that both in-person voting and “special voting”—such as by mail and other forms of absentee voting—are available and accessible so that all voters without discrimination have an adequate opportunity and means to vote.

Research has shown that in-person voting, including early in-person voting, is especially important for voters of color. The interviews and research Human Rights Watch conducted for this report support this conclusion. Some voters, especially those who have been denied their voting rights in the past, want visual confirmation, in person, that their vote has been cast. In recent months, other countries, such as South Korea and Indonesia, have increased the number of polling locations, which prioritizes in-person voting in a way that also reduces crowding and better protects health in light of the Covid-19 pandemic. US jurisdictions would do well to follow suit, planning for increased polling locations, recruiting additional poll workers, and informing voters of any changes well in advance
of elections.

Given United States census data indicating that people living in poverty are less likely to exercise their right to vote, officials need to take additional steps to locate polling stations in places that give low-income people easy access to the ballot box. A moratorium on evictions announced by the Centers for Disease Control and Prevention may provide some needed protection, but many voters remain likely to move prior to the November 2020 general election because they need to reduce housing costs given the widespread economic impacts of the pandemic. Election officials should offer accommodation to voters who might otherwise experience obstacles to voting due to address changes.

Adjusting to current conditions and avoiding the mistakes of the 2020 primary season also mean that election officials will need to streamline absentee voting by making it available without requiring voters to explain why they are not voting in person, waiving witness signature requirements, supporting vote-by-mail options, and increasing the numbers and locations of drop-boxes for absentee or mail-in ballots. Because of the pandemic, officials may need more staff and resources to process a predicted increase in absentee and vote-by-mail ballots; and they are likely to need time, beyond election day, to complete their work.

Election officials should also proactively adopt measures to assist people who may face particular challenges in voting. This includes ensuring that voters who may not have a stable address—especially given the economic impacts of the Covid-19 pandemic—have clear and straightforward ways to exercise their right to vote. It includes ensuring that polling locations are physically accessible to voters who may not own a vehicle. Voters with disabilities and older voters, including those living in residential facilities, may need special accommodation, as will people who have had contact with the criminal legal system and who also have the right to vote. Given failures during recent primaries, officials should ensure that voters can promptly access an effective remedy—that is, some way of “curing” their vote in time to be counted—when things go wrong.

Voting needs to be made easier in the United States; and election officials need support to do their jobs well. They need adequate resources to adapt their procedures to the needs of all voters in their communities. Ahead of each election, federal, state, and local governments should ensure these officials have the necessary resources and are accountable for doing their jobs in accordance with fundamental human rights. Ensuring the right to vote and ensuring accountability when that right is violated are essential parts of what democracy looks like.

From a voter education perspective, the current context for United States elections is particularly fraught. Officials will need to overcome the confusion experienced during the primaries and prompted by debates over funding for the US Postal Service, crucial for mail-in voting. This confusion makes it absolutely critical for election officials to do all they can to ensure not only that sufficient safe and accessible voting options are available, but also that all voters are informed and supported so they are able to navigate their local election system. Election officials need to focus on early and clear voter education that embraces the linguistic and other diversity of the United States—especially for Black, Latinx, Native American, and other communities that have been historically disenfranchised, and for voters with disabilities and older voters. In light of differing voter needs and preferences, as one Arizona elections official told us, the goal at this particularly challenging time should be to ensure that US voters are empowered to “choose how they want to participate in the election.”

Deciding when to give up trying to exercise one’s right to vote is a choice no citizen should ever have to make. Abd’ullah in Philadelphia, whom we interviewed for this report, came close. He spent most of his day trying to cast his vote in Pennsylvania’s June 2 primary election. He went to his regular polling station but found it closed, without any signs posted telling him where to go. When he entered his zip code into the election website, the site just froze. Abd’ullah got in his car and drove around, looking out the window for crowds and lines. He finally found a school and waited in line for over an hour—eventually only being able to vote by provisional ballot. He told us, “Someone else would have been discouraged. I myself was very, very discouraged, to the point of almost giving up. But I had my own car, so I was flexible. If I had been taking public transportation, it would not have been possible. I would have given up.”

Inspiring stories in this report like Abd’ullah’s show the courage and resolve of millions of United States citizens to exercise their right to vote even when this involves surmounting challenges and braving potential health risks. For some voters during the US primaries, an election during a global health crisis imbued the act of voting with even more meaning than before. The duty of election officials across the country should be to protect and affirm that meaningful act, doing their utmost to ensure that all citizens can freely and equally exercise their voting rights, in November 2020 and beyond.

 

Recommendations

To ensure the human right to vote in the United States, state and local election officials, including county and municipal officials, should:

Give priority to expanding both in-person voting and special voting to ensure that all eligible voters are able to vote without being subject to deliberate discrimination or discriminatory impacts:

• Increase the number of polling places: Offer as many polling places as possible with particular attention paid to locations that facilitate voting for populations that traditionally vote in person; and to reduce wait times and public health risks due to crowding at polling places. Recruit sufficiently in advance adequate numbers of poll workers to ensure safe and efficient polling stations. Offer financial and other incentives to be able to recruit individuals who are not at high risk from Covid-19 to staff the poll stations.
• Provide drop boxes: Increase the numbers and accessibility of secure drop boxes in all jurisdictions in which these are allowed since voters may have the experience of visual confirmation that their vote has been cast without going to the polls on election day, and avoid paying for postage or any possible problems with the US Postal Service.
• Expand early voting: Increase numbers of places for early voting and access to in-person early voting.
• All-access voting centers: When voter rolls can be easily accessed throughout a jurisdiction, allow voters to cast their vote at any open polling place.
• Facilitate and adapt absentee voting and voting by mail: Where a reason is needed for absentee voting, ensure the Covid-19 pandemic is an acceptable reason; remove witness signature requirements; make sure people do not need access to the internet or a printer in order to get their ballots; and that they can vote absentee in accessible locations or drop boxes.
• Emphasize consultation: Include Black, Latinx, Native American and other leaders of historically disenfranchised communities and grassroots organizations in making decisions around choice of polling place locations, communicating about, and facilitating access to polling locations.

Facilitate voting for all persons legally allowed to vote, including those needing special accommodation, those who have had contact with the criminal legal system, and those whose address has changed:

• Prioritize voting in jails: Ensure communication and collaboration between election administrators, such as municipal clerks, and sheriffs to facilitate voting for all eligible voters in jails (the majority of whom are eligible to vote because they have not been convicted or have low-level, misdemeanor convictions).
• Disseminate truthful information on disenfranchisement: Provide clear and accurate information to voters who have had contact with the criminal legal system—especially those with misdemeanor convictions, or who have newly regained the right to vote after a period of incarceration or supervision—about their right to vote.
• End disenfranchisement based on criminal convictions: Reform state laws to remove any barriers to the right to vote due to criminal convictions, including felonies. Meanwhile, ensure that all people who have been disenfranchised under current laws automatically have their voting rights restored after completion of their sentence, ensuring voting right restoration is not contingent upon payment of fines and fees.
• Anticipate changes to addresses: Adopt measures to allow all people to vote, including those who may experience address changes due to evictions or housing changes, for which the Covid-19 pandemic has put increasing numbers of people at risk. Allow same-day registration and the use of “general delivery” post office addresses for registration purposes.
• Accommodate the needs of voters in residential facilities and of voters with disabilities.

Educate voters through a variety of measures and with clear procedures set well in advance:

• Expand in-person voter education: Maximize all forms of voter education, including neighborhood-based in-person voter education in languages voters understand, about the procedures that voters must follow to vote.
• Explain measures adopted to ensure that elections are safe: Provide clear, advanced information about public health precautions in place at polling stations as well as those expected of voters to avoid surprises on election day.
• Provide accurate location information in advance: Provide clear, advanced information through a variety of mechanisms about the locations of polling places and check addresses on mapping applications. Ensure such information is accessible to all people with disabilities, including those with sensory and intellectual disabilities.
• Educate voters about absentee and vote-by-mail options: Provide clear information well in advance of elections about the availability of and procedures to follow when voting by absentee or mail-in ballot. Ensure that any changes to witness signature or excuse requirements are communicated as soon as possible.
• Provide a remedy: Have a plan in place to ensure all voters have equal and expedient access to any remedies under state law to “cure” problems they may have encountered in casting their ballots in person or via absentee, drop-box, or the US Postal Service. Ensure adequate staffing and time for necessary follow-up.
• Admit mistakes, communicate changes: If there were problems during previous election cycles, build voter confidence by admitting mistakes and clearly communicating new remedial measures.

Secure international, federal, state, and municipal support to enhance respect for voting rights:

• Minimize law enforcement presence: limit law enforcement at or near polling stations to that absolutely necessary for polling station security, ensure that poll workers are not law enforcement personnel, and ensure that there is no chilling effect on the right to vote due to presence of law enforcement at or near polls. As a matter of last resort, if a deficit in poll workers requires the use of National Guard personnel to serve as poll workers, ensure that they wear civilian clothes.
• Welcome nonpartisan election observers: Build voter confidence by inviting and facilitating international and domestic impartial and nonpartisan observers.
• Facilitate inter-agency collaboration: State and local officials should provide financial and other incentives to ensure inter-agency collaboration on facilitating outreach and accommodation for people in quarantine with Covid-19, in hospitals, without fixed addresses, people with disabilities, and those in residential care facilities, and to ensure election officials work with departments of parole, probation, and sheriffs; and vice-versa.

To ensure the right to vote without discrimination in the United States, the US Congress should:

• Promptly pass the John Lewis Voting Rights Advancement Act: This federal legislation, which passed the US House of Representatives in 2019, would update the parameters used to determine which states and territories need to seek approval for changes to electoral procedures, require public notice for voting changes, and expand voting access for Native American and Alaska Native voters.

To ensure the right to vote and the right to health, United States congressional and state appropriators should ensure election officials have the necessary resources to:

• Protect public health: sufficient financial support should be provided to state election officials, municipal elections commissions, and especially to municipal clerks to ensure public health measures are adequate to fully protect voting rights, as well as to protect the rights to life and health.
• Recruit poll workers: Financial and institutional support is necessary to provide adequate recruitment and compensation for polling place workers. Support creative staffing solutions to fulfill specific needs, including by recruiting special workers to facilitate voting in residential facilities and by enabling civilian civil service workers to staff polls.
• Ensure adequate polling places and “special voting” measures: As outlined above, ensure that in person voting and absentee voting or voting by mail are available to every voter as allowed under law, with accommodations for voters who need them.

 

Methodology

This report is based on 71 interviews conducted in July and August 2020 with international elections experts, elections and data experts, elections attorneys, elected and appointed election officials, voting rights advocates, poll workers, and voters. Due to Covid-19-related precautions, most interviews were conducted via telephone or videoconference. The total comprises 16 interviews conducted over telephone or videoconference with people in Arizona; 10 with people in Pennsylvania; and 10 with people in South Carolina. Another 27 interviews were conducted with people in Wisconsin; 15 of those were conducted in person and 12 over telephone or videoconference. Three interviews were conducted with international elections experts, 2 with data analysts and 3 with attorneys and advocates working on national elections litigation and policy. In order to preserve confidentiality, voters are named by first name only; when pseudonyms are used at the request of the interviewee this is indicated in the citation.

This report is also based on extensive desk research into United States and international efforts to administer elections during the Covid-19 pandemic. Research was especially focused on the four case study states of Arizona, Pennsylvania, South Carolina, and Wisconsin. Comprehensive national, state and local studies produced by other organizations were also reviewed, and reflect the rich variety of state, local, and community-based organizations doing powerful and important work on the human right to vote in the United States.

We relied on election and voter data analysis by All Voting is Local and Demos as well as the Brennan Center for Justice for the Wisconsin chapter. For the Arizona chapter, we relied on polling station location data compiled by the Leadership Conference on Civil and Human Rights. For the South Carolina chapter, we relied on analysis of voter turnout data for the state’s primaries conducted by the Stanford-MIT Healthy Elections Project. For Pennsylvania, we conducted data analysis ourselves, using polling station location data for the entire state during the 2016 and 2020 primaries provided to us under a Right-to-Know-Law request. The Pennsylvania data were reviewed for uniqueness, completeness, and accuracy of information on zip codes, county, and number of polling locations. Demographic data were obtained from the 2014-2018 American Community Survey’s B03002 table.

After several weeks of preliminary interviews and research, we chose to conduct deeper research in Arizona, Pennsylvania, South Carolina, and Wisconsin because these states represented regional variation, had closed polling places during their primaries, and had varying demographic characteristics in their non-white voting populations.

Background

Administering Elections in the United States

In the United States, elections are decentralized. The day-to-day functions of administering US elections are handled by county and municipal (city and town) officials. The state is responsible for certain aspects of elections as well, and the federal government also has a role, including in ensuring financial support for elections. According to the National Conference of State Legislatures:

[T]he result is that no state administers elections in exactly the same way as another state, and there is quite a bit of variation in election administration even within states. Each state’s election administration structure and procedures grew organically, as times changed and administering an election became an increasingly complex task.[1]

In its first 100 years as a nation, the United States relied on county officials to periodically hold elections. Voters were not required to register ahead of time and the voice vote was the most common voting method.[2] Gradually, especially starting in the 1880s, states and localities began to make changes by adopting voter registration requirements, instituting secret ballot systems, and using voting machines. States also began to adopt laws governing election administration. Though beyond the scope of this report to analyze in detail, these changes were motivated by multiple interests, including efficiency and fairness and countervailing desires to block access to the polls for Black people and other racial minorities.

Today, each state in the United States has a chief election official who has ultimate authority over elections in the state, but there is variety in which official(s) hold this power. For example, many states rely on their secretaries of state as their chief elections official, others require governors to appoint top election officials, and still others use appointed bipartisan election commissions.[3]

Regardless of the structure, the top election officials are often responsible for:

ensuring that election laws are followed by local officials statewide; administration of a statewide voter registration database. . .; assisting local election officials by providing training courses or materials on running elections in the state. . .; providing a process for testing and certifying voting equipment for use in the state; certification programs for local election officials on election procedures[;] and may also help [to] pay for certain types of elections, or a portion of expenses.[4]

Moving beyond such macro-level tasks handled by top officials, the day-to-day of election administration in the United States is run at the county or municipal level by a single individual, a board or commission of elections, or a combination of the two.[5] In all, this means that there are more than 10,000 election administration jurisdictions in the United States. When election duties are divided, the most common division of duties is between voter registration and the actual administration of elections, but there is enormous variety.

The duties handled by these county or city/town election officials include day-to-day operations of registration and voting, including absentee and early voting, election day procedures, including appointing poll workers and election officials, delivering supplies to the polls, counting ballots and canvassing returns.

Other government agencies also have a role to play in United States elections. Although not a part of our investigation or analysis for this report, the US Postal Service plays a role in delivering voter education, registration materials, and ballots to voters; and in returning registration and voted ballots to election officials. The delivery times and resources of the US Postal Service, including funding streams, sorting centers, and locations of mailboxes have been widely debated by US politicians and in the media.[6] Departments of Transportation and of Motor Vehicles are crucial state government agencies involved in administering access to the forms of identification voters must present under state law.[7] Sheriffs and probation officers are among the officials who play a role in ensuring or impeding the voting rights of people with criminal legal system contacts.[8]

Voting Rights Act of 1965

Beginning in 1965, the Voting Rights Act (VRA) was a crucial tool to ensure the human right to vote for all United States citizens. Before passage of the VRA, Black citizens were often blocked from the polls by intimidation, violence, poll taxes, and literacy tests. Native American, Latinx, and Asian American citizens also suffered from institutional racism that denied or severely limited their right to vote.[9] According to the Leadership Conference on Civil and Human Rights, the Voting Rights Act brought measurable improvements: “By 1970, almost as many African Americans were registered to vote in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as had been in the entire century before 1965.”[10]

Section 5 of the VRA required states and localities with a history of voting rights discrimination based on race to submit in advance any proposed changes to their voting procedures to the US Department of Justice or the US District Court in Washington, DC.[11] The jurisdictions were required to prove that the proposed change would not deny or adversely affect the right to vote on the basis of race, color, or a voter’s membership in a language minority group. In 2013, a US Supreme Court decision, Shelby County v. Holder,[12] invalidated the formula used to identify which states and localities had a history of voting rights discrimination, rendering Section 5 essentially useless for ensuring the human right to vote in the United States. Since Shelby:

States have shortened voting hours and days, enacted new barriers to voter registration, purged millions of eligible voters from the rolls, implemented strict voter identification laws, reshaped voting districts, and closed polling places. Many of these changes have been found [by courts] to discriminate against Black and Brown voters.[13]

Some of these impacts on Black and brown voters were on display during the spring 2020 primaries in the United States, even as states and localities adopted some changes in good faith in attempts to protect public health from Covid-19.

Unless and until Congress adopts legislation to re-institute some centralized oversight of voting procedures, states and localities are on their own to adapt their procedures and policies to ensure equitable access to (or impede) the right to vote for all citizens. Also, without the power of the Voting Rights Act to protect them, voters in states with a history of race-based voting rights discrimination are now left to advocate on their own through litigation under less protective laws or any other means available to ensure the human right to vote.

Since the Shelby decision, applying other US laws, courts have found that certain state and local election policies have violated the prohibition in US law against intentional racial discrimination.[14] The number of violations would be markedly higher if US courts applied the international human rights prohibition against laws and policies that have racially discriminatory effects (even if the intent behind them is race-neutral). That prohibition is binding on the United States, as a state party to the International Convention on the Elimination of All Forms of Racial Discrimination (discussed in more detail in Section V, below), but few US courts have been presented with a chance to enforce this prohibition; when presented with such a chance, few have been willing to enforce it, or have avoided enforcing the prohibition by deciding the case on other grounds.[15]

Other state and federal laws provide some voter protection. Though analysis of all such laws is beyond the scope of this report, the Help America Vote Act, enacted in 2002, has created a centralized source for election administration information, provides funds for improving election administration, and creates some minimum standards for states to follow in several key areas of election administration.[16]

Covid-19

At the time of writing, the United States had recorded more total deaths from the novel coronavirus than any other country in the world.[17]

The United States government, and state and local authorities, are obligated to protect the human rights to life and to health by adopting protective measures in light of the Covid-19 pandemic. These may include measures that affect election administration, though any Covid-19-related measures that affect the right to vote should be objective and reasonable. These may include, for example, taking steps to educate people on how to prevent transmission and ensure non-discriminatory access to testing and treatment; as well as mandates to wear masks or practice social distancing. These measures may have a direct impact on the ability for individuals to get information or exercise their right to vote and require election officials to modify traditional practices related to election administration to simultaneously protect the right to health and ensure people can exercise their right to vote.[18]

Many international, federal, and inter-state entities have adopted guidance on administering safe and equitable elections during the Covid-19 pandemic. For example, the Centers for Disease Control and Prevention have issued guidance for election officials and voters on administering and participating in elections during Covid-19,[19] and the US Election Assistance Commission has held hearings[20] and compiled resources[21] on administering elections during Covid-19, as have the National Association of State Elections Directors[22] and the National Conference of State Legislatures.[23] At the state level, a large variety of legislation is being introduced to address how elections can be executed during the pandemic.[24] Internationally, the International Foundation for Electoral Systems has published a briefing paper series on administering elections during Covid-19.[25]

As explored further in this report, United States authorities have adopted measures that affect elections in the name of protecting the public from Covid-19. Some appear to appropriately respond to concerns about Covid-19 risk while ensuring that individuals’ right to vote is protected. Others appear not to. It is beyond the scope of this report to determine whether measures adopted were pursued with any specific intent to block the voting rights of particular groups. Such an inquiry is not necessary to establish that certain measures may have had discriminatory impacts.

Moreover, given the many guidelines promulgated by authorities on administering safe and equitable elections during the Covid-19 pandemic, this report does not tackle the requirements in detail. However, many of the recommendations Human Rights Watch makes in this report on ensuring the right to vote—such as significantly increasing polling places, and expanding options for voting—are consistent with and in fact supportive of best practices for protecting life and health. In addition, the obligation to prevent discriminatory impacts on specific racial groups and to accommodate the needs of voters who may face additional obstacles in voting means that officials need to pay special attention to populations of color and low-income communities.

According to data through the end of May 2020 obtained from the Centers for Disease Control and Prevention by the New York Times, Latinx and Black residents of the United States have been three times as likely to become infected as their white neighbors, and Black and Latinx people have been nearly twice as likely to die from complications arising from the novel coronavirus as white people.[26] According to a separate Centers for Disease Control and Prevention study, the incidence of Covid-19 cases among Native Americans was three-and-a-half times that among whites.[27] Given the specific threats the Covid-19 pandemic poses to Black, Latinx, and Native American populations, and the historic disenfranchisement of these populations in the United States, extra measures should be taken to ensure these people’s health and their right to vote.

Low-income communities in the United States are more likely to be exposed to the novel coronavirus, have higher mortality rates, and suffer economically.[28] Citing public health concerns caused by the Covid-19 pandemic, in September, the Centers for Disease Control and Prevention ordered a four-month moratorium on evictions, which may help to protect some low-income voters.[29] Despite the moratorium, voters may still need to change their addresses prior to the November 2020 general election because they fail to comply with the bureaucratic steps required to benefit from the moratorium, or because they need to reduce housing costs and decide to move in anticipation of the moratorium being lifted. This is especially relevant given that the most recent analysis conducted by the US Census Bureau reveals that voters with household income of more than US$150,000 had a 57 percent participation rate in the 2014 mid-term elections, compared to just 31 percent for those making $15,000 to $20,000.[30] Given the specific threats the Covid-19 pandemic poses to low-income communities, and their low participation rates in previous elections, election officials need to take extra steps to respect the voting rights of low-income
US citizens.

 

I. South Carolina Elections During the Covid-19 Pandemic

I tried to vote and I still could not. We need to do something about this. It is easy to suppress the vote because they require too much. Even when we try, we are told, “you’re not in compliance.” It can be exhausting. I worked hard to get my vote in, but I failed to do so. Others will also give up.

— Carrie, Columbia, South Carolina, August 18, 2020.

Voting in South Carolina

South Carolina has a history of voter disenfranchisement.[31] Prior to the US Supreme Court’s Shelby County v. Holder decision in 2013, state officials were required to get approval from the US Department of Justice before changing electoral law. A photo ID law, passed by state legislators in 2011, was seen by many experts as an attempt to put voting restrictions in place.[32] The law was upheld after a 2012 Justice Department challenge, but was made far less restrictive, allowing people to vote if they could explain why they had not procured an ID card. But the 2011 law and subsequent changes reflect a confusing registration and voting process that, ultimately, has interfered with the right to vote.[33] As one voting rights advocate put it, “Many voters here do not know how to get information.”[34]

While South Carolina allows absentee ballots to be dropped off at an election office up to 30 days before the election, the process for requesting the absentee ballot is cumbersome. Voters can request a ballot in person, but local activists told us that voters may be more reluctant to do this during the Covid-19 pandemic.[35] Alternatively, voters can request an absentee ballot by either filling in a form online, printing and mailing it in or by requesting that a form be mailed to them by phone. Once the form is completed, it must be signed by a witness and mailed back to the county registration office before the ballot is then mailed to the voter.[36] A local activist told Human Rights Watch that minorities and people living in rural areas without internet access or a printer may face additional delays because their only option is to use the phone and mail.[37] On their forms, voters must fit within at least one of seventeen categories approved by the South Carolina Election Commission for someone to vote absentee, including military service, work and illness.[38]

South Carolina’s June Primary

In June, with confirmed cases of Covid-19 on the rise,[39] South Carolina voters struggled to use the state’s cumbersome absentee process to vote. At the same time, poor responses to Covid-19 by election officials brought significant problems for in-person voters on election day. Polling places were closed and changed in some counties with inadequate notice to voters, and voters were confronted with long lines, confusion over ballots, and a sense of chaos that negatively impacted the right to vote in the state.

In the lead-up to South Carolina’s presidential primary in June, South Carolina Governor Henry McMaster, in response to the Covid-19 pandemic, took an important step to protect the right to vote by signing a bill allowing all residents to vote absentee if they cited a “state of emergency” on their absentee applications.[40] This reason had not previously been available to voters in South Carolina.

On May 25, in a lawsuit filed by the American Civil Liberties Union of South Carolina and the NAACP Legal Defense and Educational Fund, a US district court ordered that witness signatures would not be required on absentee ballot envelopes.[41] Both of these changes—the “state of emergency” as a valid reason and the signature waivers—were only instituted for the statewide primary and a subsequent runoff election held on June 23, 2020. As of July 1, the changes had expired. To date, lawmakers have not restored these measures, although Republican legislators have said they would reconsider expanding absentee voting if South Carolina remains under a state of emergency in September as a result of the Covid-19 pandemic.[42]

During the June statewide primary, South Carolinians took advantage of this increased availability of absentee voting. The number of people who voted absentee nearly doubled, from 12.5 percent of voters in the 2016 statewide primary to 22.4 percent in June 2020.[43] Nevertheless, voters still overwhelmingly opted to vote in person, with 75 percent of voters casting their ballots at polling stations for the statewide primary on June 9, 2020. Despite the pandemic, there was a record turnout of 767,187 voters, which was an 83.5 percent increase over the 2016 primary.[44] This record turnout occurred amidst significant delays, poll closures and lack of staff at some polling centers,[45] conditions that interfered with the right to vote in the state.

On June 1, the South Carolina Election Commission announced that at least 168 out of 2,200 polling stations would be moved or consolidated with other polling stations.[46] On June 8, the day before the primary vote, that number was revised to 257 polling places that would be moved statewide.[47] Chris Whitmire, the spokesman of the South Carolina Elections Commission, told the media on June 8 that the poll moves and consolidations were a result of poll worker shortages, polling station closures, or because some locations, such as senior centers, posed particular challenges in light of the pandemic.[48]

Elections in Richland County, with the second-largest overall population and the largest Black population in the state, have been mired with problems in recent history.[49] During the June primary, 73 polling stations in Richland County were relocated, representing about 30 percent of all polling stations relocated across the state, and more relocations than any other county.[50] According to the Center for Public Integrity, a nonprofit and nonpartisan newsroom, consolidation in Richland County resulted in some polling sites processing up to five times the number of usual voters.[51] Of the 10 consolidated polling stations in Richland County, six were located in areas with majority Black voters.[52] Ballots in Richland County were also misprinted with incorrect candidates, leading to further confusion.[53] The poor planning for the election caused Terry Graham, interim director for the Richland County Elections Board, to tell local media on election morning, “We’re not off to the start I’m looking for.”[54]

The county’s interim elections director told state legislators that the county was trying to send updates to residents outlining the upcoming changes,[55] but the confusion prompted by the last-minute changes led some people to go to the wrong polling stations. For example, Human Rights Watch interviewed a 67-year-old resident of Richland County who tried to vote at her usual polling location at Rice Creek Elementary School, having received no information about polling changes. There was no information at the school indicating where she should go, but she was told by a stranger to try the Blythewood Park polling center. After waiting for over one-and-a-half hours in line, she was informed that she was at the wrong location and that she should have gone to the North Springs location. As it was already 8 p.m., she did not have sufficient time to travel to that location to vote. She told Human Rights Watch:

I was so upset. For the first time since I was 18 years old, I could not vote. It was horrible that night. I felt like they did not care if I voted or not. I just want my vote to count…. We are used to waiting in long lines to vote, but we aren’t used to being turned away. I had received no information in the mail about the change. The next day I called the election commission because I was so upset. They said I should have received a white card in the mail, explaining the poll change, but I had not. I told them I check my mail carefully, even the junk mail, and I had not received the notice.[56]

Another voter, 71-year-old Melinda Anderson, got a robocall on election day from a candidate (not from election officials), informing her of her new polling location; to which her son drove her for curbside voting. After four hours of waiting, they had to leave and she was unable to cast her vote. She told the Center for Public Integrity, “I’m still upset that I didn’t get to vote. . .. Whether my vote mattered or not, I wanted my vote to be counted. That’s what I’m worried about in November.”[57]

Poll consolidation in Richland County led to significant lines, with many voters waiting over 2 hours in 90-degree heat.[58] In a few locations, voters waited over 6 hours to vote.[59] Curbside voting, where a voter can vote in a vehicle outside a polling location, did not work in some places in the county. “The lines wrapped around the building,” one voter from Richland Country with health issues who eventually decided not to vote said. “The parking lots were overwhelmed, there were long lines and there was no social distancing… we couldn’t park curbside, we couldn’t even get to the curb. To vote curbside would have been too much of a risk for me. I was upset.”[60]

Voters, especially from Black households, who opted to vote in person but without access to private transportation may have been especially disadvantaged by polling center consolidation. Data from 2017 indicates that 12 percent of Black households in Columbia did not have a vehicle, versus 4 percent of white households.[61] Transportation to voting centers in June was “definitely an issue” according to one local activist.[62] In addition, given Richland County’s large Black population among South Carolina’s counties, the longstanding preference for in-person voting among Black citizens, and the numerous changed locations and poll closures in the county in June, it is likely that the negative impact on the right to vote fell disproportionately on Black people.

The situation in Richland County was so disastrous that the State Election Commission issued a press release after the primary:

The South Carolina State Election Commission is disappointed with the conduct of yesterday’s primaries in Richland County. . .. We know election officials and poll managers were faced with the extraordinarily difficult task of conducting an election in a pandemic. But yet again, voters were unnecessarily subjected to extreme wait times and confusion at
polling places.[63]

Additional Steps Needed to Protect the Right to Vote in South Carolina

In June’s primary, absentee voting increased by 213 percent compared to the 2016 primaries, with 191,000 voting absentee in 2020 versus 61,000 in 2016.[64] Absentee ballots cast by mail increased 370 percent.[65] At the time of writing, rates of infection with the novel coronavirus in South Carolina were high, with over 112,000 confirmed cases.[66] Even if rates decline into the fall, protecting the health and safety of voters should be a chief concern of voting officials and lawmakers. To that end, the state needs to ensure more voters can more easily access absentee ballots. On July 17, the director of the state’s Election Commission, Marci Andino, sent a letter to the state legislature. Calling the upcoming election the “greatest challenge” to South Carolina’s election system, Andino made several recommendations to lawmakers, including reinstating the “state of emergency” reason for absentee voters, removing the witness requirement on absentee envelopes and allowing for more time to count absentee ballots sent by mail.[67]

Following Andino’s advice, state legislators should extend the “state of emergency” reason to enable all eligible residents in South Carolina to access an absentee ballot. The signature requirement waiver should likewise be extended. Furthermore, assuming voter turnout and participation increases for the November election, the number of absentee ballots mailed in could rise significantly, further straining the capabilities of county election commissions to count votes. Given the anticipated volume of ballots, more time and resources should be allotted to count ballots that were mailed in and postmarked by November 3. According to one activist, approximately 1,500 ballots that arrived too late were not counted in the June primary.[68] Other reforms being sought through litigation may increase access to absentee ballots.[69]

At the same time, data from previous elections indicates that voter turnout for in-person voting in November will be high. For statewide primaries generally in South Carolina, average voter participation is around 18 percent, while presidential elections average 71 percent.[70] South Carolina voters, especially Black voters, more often opt to vote in person. As one activist told Human Rights Watch, “People want to show up at the polling station to ensure that their vote is counted…there is a distrust of the mail, now more than ever.”[71] Therefore, state and local election officials need to improve the in-person voting process, including by increasing the number and age, race, and linguistic diversity of poll workers. Many traditional poll workers in South Carolina are older and therefore at higher risk for severe complications from Covid-19.[72] More poll workers will need to be recruited and trained as soon as possible. The state may need to consider ways to reach younger poll workers, to increase pay for work at the polls, and to allow state workers who are willing to do so to staff polling locations on election day.

It is crucial for South Carolina to prioritize extended hours and an increased number of in-person polling locations, especially in populous areas, and communicate early and clearly to voters about where they should vote. The June primary shows that consolidating polling locations, especially combined with the failure of election officials to provide adequate notice, adds to confusion and makes it more difficult for people and communities who rely on voting in person to do so. If a polling site must be closed, attempts should be made to move its location within the same area so that neighborhood access can be maintained.[73] Information about any changes to polling centers should be disseminated well in advance, working with community leaders, churches and other local groups to communicate the changes. Transportation challenges for voters to new polling locations should be mitigated, including by providing transport, especially as civil society organizations that may have provided transportation to voters in the past will face challenges with Covid-19.[74] South Carolina needs to prioritize increases to polling locations in urban areas, which tend to have fewer locations per capita than suburban and rural locations, according to the Voting Rights Lab.[75]

One activist told Human Rights Watch that they would be driving people to the polls in November, “because we want to have as few mail-in ballots as possible” due to mistrust created around mail-in ballots. To protect the most vulnerable, including older persons, curbside voting options should be better organized and expanded, in line with recommendations from the Centers for Disease Control and Prevention, to reduce potential exposure in long lines.[76]

Ensure the right to vote for people with criminal legal system contacts. According to local advocates, ensuring voting for pretrial detainees in jail has not been a priority for election officials or sheriffs, “We have thousands of people in jail who can vote who are not convicted. Sadly, [in addition] many people released [from prison] do not think they can vote.”[77] Moreover, the state disenfranchises people with felony convictions and those on probation and parole even after they are released from prison.[78] South Carolina lawmakers should move swiftly to restore the right to vote to all persons as soon as they leave confinement, regardless of the crime of conviction, in accordance with international human rights law. They should also move toward broader reforms to end disenfranchisement for people with criminal convictions.

 

II. Wisconsin Elections During the Covid-19 Pandemic

That fear that we won’t be heard is [a] new layer of trauma on top of a history of traumatization. Especially in my community there is always that feeling that my vote is not being counted and my voice isn’t being heard. . . .We want to assure people that their voices will be heard and counted.

— Darrol Gibson, managing director, Leaders Igniting Transformation, Milwaukee, August 3, 2020.

Oh no I never had a problem, ’cause you ain’t gonna stop me from voting. If I’ve got to crawl to that poll, I’m going to do it.

— Mary, a 40-year-old Black resident of Milwaukee, August 6, 2020.

Voting in Wisconsin During the April Primary

In the first quarter of 2020, amidst a contradictory and last-minute series of policy moves made by Wisconsin Governor Tony Evers, the state legislature, and the state Supreme Court,[79] Wisconsin’s election officials worked to prepare for the state’s primary election. They adopted curbside or drive-through voting[80] and other measures to protect voters from the risk of Covid-19 transmission,[81] but also raised concerns that they lacked sufficient poll workers, and that inadequate supply of hygiene products[82] and the small size of some polling stations (preventing social distancing)[83] created health risks for poll workers and voters during the Covid-19 pandemic. When it became clear that the primary election would move ahead despite these concerns, some of Wisconsin’s municipal clerks[84] closed and consolidated polling places.[85] 

The City of Milwaukee consolidated its usual 180 polling locations to just five. Milwaukee Election Commission Executive Director Neil Albrecht cited “a drastic shortage of poll workers as the reason for the change.”[86] Mr. Albrecht stated that the city normally staffed its polling places with 1,400 poll workers, but only 400 poll workers would be available for the April election.[87] Other cities and counties in Wisconsin made changes, but none as drastic as Milwaukee’s.[88]

It is unclear whether state and local officials used all means available to secure poll workers.[89] Wisconsin’s state election commission had advance notice that there would be insufficient poll workers in jurisdictions across the state. One week prior to the April 7 election, the Commission issued a memorandum summarizing local polling place supply and personnel shortages as reported in the days and weeks prior by Wisconsin municipal and county clerks.[90] This memorandum stated that nearly 60 percent of Wisconsin municipalities were reporting a shortage of poll workers.[91] Yet when election day came, Milwaukee in particular fell far short. State Representative LaKeshia Myers told Human Rights Watch:

The state had the option of the National Guard [to serve as poll workers] and that request should have been made sooner, especially for Milwaukee. Timing is always of the essence, and there is no excuse for how elections officials failed. They have yet to address what happened in the city of Milwaukee. Nothing.[92]

The poll closures meant Milwaukee voters had longer distances to travel on election day.[93] Voters also encountered long waits—for tens of thousands of voters, wait times were more than two hours.[94] These long lines had a chilling effect on voters for a variety of reasons. Some older people and people with disabilities or chronic health conditions were physically unable to wait in line, others feared risk of exposure to the novel coronavirus, and still others had work or other commitments that made waiting impossible. A Black voting rights advocate said:

Take my elderly next-door neighbor. I talked her through how to go to city hall to vote—how to get there and all that. But in the city of Milwaukee—we had lines wrapped around city blocks for a mile and it was raining! Now, she’s an elderly lady. She can’t take all that. What was she supposed to do? I’m pretty sure she didn’t vote.[95]

According to the group Voting Rights Lab, “[T]here is a large body of research that shows how polling place consolidation has long reduced voter turnout, particularly among voters of color, rural voters, infrequent voters, and voters without vehicle access.”[96] Milwaukee’s April 7 primary is a case in point. The voting advocacy groups All Voting is Local and Demos analyzed voter turnout in Milwaukee, comparing 2016 primary data with 2020 primary data. In 2020:

[w]hile white [majority] wards had an average of 49 percent voter turnout, Black and Hispanic [majority] wards had an average of about 18 percent turnout. . . . In 2016, white [majority] wards had an average of 70 percent voter turnout, compared to 37 percent turnout in Black [majority] wards, and 42 percent turnout in Hispanic [majority] wards.[97]

A further statistical analysis by the Brennan Center that sought to control for the impact of the Covid-19 pandemic on voters’ willingness to go to the polls, found that polling place consolidation in Milwaukee decreased turnout among non-Black voters by around 8.5 percentage points, and reduced turnout among Black voters by 10.2 percentage points.[98]

Human Rights Watch interviewed registered voters in Milwaukee who were unable to vote during the April primary due to poll closures:

·      Cherish, a 32-year-old Black woman in Milwaukee, said: “We went to two different high schools and the lines were just too long. I couldn’t have my elderly mom wait in a line like that. We tried two times but then we just had to go home. Oh yeah. That was bad.”[99]

• Clayton, a 35-year-old Black man, said: “I didn’t vote in April. With all those lines it wasn’t worth my time.”[100]

Others persevered and voted in person, but the experience left voters with a mix of negative (and some positive) impressions:

• Marquette University professor Robert Smith, who observed Milwaukee’s polls in April, told us: “People were very stoic and defiant in their commitment to the process. There was one location where the line to vote was four city blocks long. People brought chairs. Folks provided water. When you have these failures of government, people have to take on herculean efforts just to make it manageable. As much as that was a moment of abuse, it was also a moment of amazing courage.”[101]
• Sheila, a 54-year-old Black woman, said: “I mean what they did in April was just ridiculous. You know what I didn’t like besides those lines? All those police cars parked outside. I mean that was terrible.”[102]
• “It took me like 3-4 hours. I was at Washington [High School] waiting in that line. There wasn’t any social distancing and people weren’t wearing masks, but I hung in there because something’s gotta change and I mean I gotta [vote] to make it happen,” 41-year-old Brenda told us.[103]
• “Me and two friends were dropping off clean pens and gloves to people. We saw lines wrapped around the block,” said Iuscely Villareal, civic engagement and field manager for Wisconsin Voices.[104]
• Molly Collins, advocacy director for the ACLU of Wisconsin, said: “It was really sad. People leaving when they hear the line is two hours long. One woman waited two-and-a-half hours in line and was told she couldn’t vote. But at the same time, every poll worker was trying to do their best. People were bringing chairs from nearby houses. People were sending pizzas to people in line. We saw people trying. We also saw how government and the courts failed those people.”[105]
• “It was a travesty. A slap in the face to the voters to be put in an uncompromising situation with long lines and risk of coronavirus,” said 66-year-old James Nelson.[106]

In other locations near Milwaukee, voting was uncrowded and uneventful. In Wauwatosa, a city that borders Milwaukee with a population of over 46,000 that is 86 percent white, polling locations were mostly empty.[107] In Germantown, with a population of just less than 20,000 that is 90 percent white, there were no lines at all on Election Day.[108] Thus, voters faced starkly different opportunities to safely cast a ballot depending on where they lived and their race.

Apart from problems with the poll closures on election day, some voters experienced limited access to in-person and mail-in absentee voting. Wisconsin law allows voters to return their absentee ballots by mail or deliver them in person to an early voting station in the state.[109] For this report, Human Rights Watch interviewed voters who used the absentee process in April and August without incident:

• Miles, a 45-year-old Black Milwaukeean, said: “I’ve never had any trouble voting [early by absentee]. I get those texts telling me where to go and reminding me to vote early.”[110]
• “I didn’t have any trouble voting. Even in April—I went right down there and got it done [gesturing toward the early voting location at Milwaukee’s Midtown Shopping Center],” said 67-year-old Charles.[111]
• William, a 50-year-old voter with a disability[112] who walked with difficulty using a cane, said: “I didn’t have any problems in April. I voted [absentee] by mail. And for this [August] election, I’ve got my vote by mail ballot. . .. I don’t do a lot of moving around so either it’s got to be close by or by mail, otherwise I can’t get it done.”[113]

However, there were serious problems in April with both in-person and mail-in absentee voting. For example, all three of the City of Milwaukee’s in-person absentee voting locations closed abruptly on March 23, 2020, following an announcement made just the day before.[114] Subsequently, the city reopened one of these voting sites, but made it available only as a drive-through, thereby limiting it to those voters with access to a car.[115] A lawsuit alleges that absentee voting locations were poorly publicized, leaving many voters confused or simply unaware of early voting options in the city.[116]

Absentee voting problems during the April election were covered in detail, including with testimonies from voters themselves, by the League of Women Voters in a May 2020 report:

[N]ever have we been contacted by so many voters—more than one hundred—who were disenfranchised because of the way the election was carried out. Stories have poured in from across the state. . . . While each of these voter’s stories and individual experiences are different, one thing was true for the vast majority of voters who responded to our survey: approximately 75% of them requested an absentee ballot that never arrived.[117]

In April’s primary, 150,000 absentee ballots—about 10 percent of all ballots sent—were either not returned or rejected due to errors. One voter told us:

My mom doesn’t even want to request another ballot because they never sent it. A lot of folks are older voters and they rely on absentee ballots. A lot of people are skeptical now. April was a mess.[118]

In combination with such official failures, Covid-19 presented its own chilling effect, especially for Black and Latinx voters already disproportionately affected by the disease.[119] Ahead of the August 11 election, a Latinx voting rights advocate told us:

You know it’s the people in 53204 and 53215—those ZIP codes hit the hardest by Covid—those are the Latinx people feeling vulnerable. People are not going out because they are scared about this virus. Add to that they don’t even know where the polling locations are going to be—and it’s just days before the election. If they go to their regular location and it’s closed, people will just give up. It’s even harder because the language is just in English, information is only in English.[120]

Reflecting on the April primary, a Black voting rights advocate told us:

Given the pandemic, voters already had to shift how they were thinking about voting. We know that the virus is disproportionately affecting our community, and now we see that our election system was not prepared. . . .Hopefully now there are lessons learned.[121]

Lessons Learned

Wisconsin election officials appear to have learned some lessons from April. For example, the five major cities of Milwaukee, Racine, Green Bay, Kenosha, and Madison applied for and received a grant for US$6.3 million from the Center for Tech and Public Life to ensure “effective,” “resilient,” and “adaptive” election administration during the Covid-19 pandemic.[122] The City of Milwaukee appointed Claire Woodall-Vogg as executive director of its Elections Commission, who issued a memorandum on voting and racial equity.[123] The Wisconsin Elections Commission has also approved spending $7.2 million in federal CARES Act funding, including a $4.1 million block grant program to help local election officials and voters prepare for Fall 2020 elections amid the Covid-19 pandemic.

The increase in funds is encouraging; and on August 11, Milwaukee held elections with 168 of 180 polls open; with other cities in Wisconsin also providing larger numbers of in-person polling stations.[124] Looking toward November some local advocates are cautious in their optimism:

My biggest thing is execution. At the end of the day, are they still going to say they’re looking for poll workers? I’m encouraged that there is some kind of planning happening…. But I’m waiting to see how it’s all executed.[125]

Darrol Gibson, managing director of Leaders Igniting Transformation in Milwaukee, said:

What to say about all this money that election officials are getting? Are we up in bus ads? Are we up in the community everywhere we need to be? How about putting ads in that say, “the process hasn’t been the best but we’re going to do better this time?”[126]

Angela Lang, executive director of Black Leaders Organizing our Communities, said:

We’re concerned about voter intimidation at the polls—from a racialized lens. If the lines are long, I fear people hurling racialized insults at people standing in line. We need nonpartisan election observers to stop this kind of behavior. Even if it’s isolated incidents, it shouldn’t happen.[127]

Additional Steps Needed to Protect the Right to Vote in Wisconsin

Looking toward the November election and beyond, state and local officials have more to do to ensure the human right to vote in Wisconsin. The state needs to invest in absentee voting to overcome the legacy of the April election. Voters are concerned that the state may have difficulties processing the expected increase in ballots in November, especially since there were problems in the April primary. Wisconsin’s nearly 1,900 municipal clerks are concerned that they do not have the resources necessary to timely process the ballots. This is especially true since Wisconsin law requires the ballots only be counted starting on election day.[128]

Ensuring voter confidence in the absentee process, and ensuring municipal clerks can give quick and effective notification to voters of problems, as well as an opportunity to “cure” their ballots, are key challenges for the state in November and beyond.[129] An election that fully protects the human right to vote in Wisconsin should ensure timely delivery of all absentee ballots requested, extend the deadline for receipt of absentee ballots, waive the requirement that absentee ballots be signed by a witness, ensure municipal clerks have more time, equipment and staff to process returned ballots and provide statewide equitable and consistent remedies to cure faulty ballots received.

Voters in nursing homes and in residential care facilities also require special attention. On June 24, 2020, the Wisconsin Elections Commission determined that Special Voting Deputies will not be sent to nursing homes and care facilities to administer voting for the remaining elections in 2020. Residents of facilities normally served by these deputies will instead be mailed absentee ballots for each remaining 2020 election.[130] There were problems with ballots not being counted that originated from nursing homes in April, however. Milwaukee Elections Commission Executive Director Woodall-Vogg had heard that in the Milwaukee suburb of Oconomowoc the “eight percent [ballot] rejection rate was [allegedly] almost exclusively due to care facilities.”[131] In addition, while some municipal clerks worked to get ballots to quarantined and people with Covid-19, this is largely left to clerks to manage on their own.[132] The state should consider training a small cadre of workers who could assist such voters, including those in nursing homes.

Voters, probation officers, sheriffs, and courts need to be better informed about the voting rights of people who have been arrested. Individuals with a felony conviction become eligible to vote again only when they complete the terms of their sentence, including any term of probation or extended supervision.[133] This disenfranchises an estimated 68,000 people in Wisconsin. Human Rights Watch interviewed one such person, a 37-year-old Black Milwaukeean named James, who, when asked if he would agree to be interviewed about “the right to vote” in Wisconsin, told us: “I can’t even vote. I’m a convicted felon and I’m on parole. I don’t even have that right to vote.”[134] Human Rights Watch urges Wisconsin to change its laws to enfranchise these voters.[135] Even under existing law, there is more the state should do to help people understand when and how they can legally return to voting. One voting rights advocate in Milwaukee told us:

I can’t tell you how many times we’re the ones to inform people that they actually have the right to vote. We ask: “Do you mind me asking you if you’re ‘off paper?’ [a term used in Wisconsin to signify an individual’s supervision term has ended]” The state needs to do much more on restoration of voting rights. . . .They make a big deal that you lose your voting rights, but they don’t make a big deal when the rights are restored.[136]

In addition, at least half of the approximately 12,000 people in Wisconsin’s jails retain their voting rights, but the state has not lived up to its responsibility to ensure these rights in recent elections.[137] A July 2020 report by the groups All Voting is Local and the ACLU of Wisconsin found that 32 counties do not have a written policy that specifies how people in jails can register to vote and cast a ballot.[138] According to Milwaukee’s Election Commission’s Executive Director Claire Woodall-Vogg:

I’ve always struggled with how to reach eligible voters in the jail. . .. There’s nothing in state law that allows us to set up the jail as a polling place. Local government hasn’t yet figured this out.[139]

Another key concern in the run-up to November’s election is the need to ensure the voting rights of people who do not have a stable address or who may have been recently evicted—a particularly likely scenario given the extremely difficult economic circumstances brought about by the Covid-19 pandemic.[140] For example, in Milwaukee, a voting rights advocate said:

This pandemic is an economic crisis. With absentee ballots for the primary, and with rent being due, people don’t know if they’ll be in the same housing when the election comes around.[141]

A voter we interviewed for this report echoed this concern. Describing an ongoing dispute with his landlord over electrical wires hanging from the ceiling in his apartment, and concern he has about a neighbor whose plumbing consistently overflows, including into the voter’s apartment, he told us he doesn’t know if he’ll be in the same place come November.[142] Low-income voters in Wisconsin will face additional challenges, including with the state’s restrictive voter ID laws.[143]

Human Rights Watch urges Wisconsin election officials to make arrangements for this possibility and to ensure that voters are aware that residency for voting purposes is different from residency for other purposes, allowing registration at a half-way house or other facility.[144] Wisconsin should consider other innovations such as allowing registration at general delivery postal addresses to accommodate a likely increase in voters without a stable address.

Wisconsin should act to ensure the right to vote particularly for Black, Latinx, and Native American voters, providing information about and access to in-person early voting and election day polling places in languages these populations can understand.[145] Days before the August 11 election, Woodall-Vogg told Human Rights Watch how the city of Milwaukee had put increased effort into recruiting poll workers, and concluded:

The most important thing is that we continue to preserve as many in-person voting locations as possible. The populations [referring to Black, Native American, and Latinx populations] have a very justified mistrust of government; wanting the visual confirmation that their vote will count.[146]

 

III. Pennsylvania Elections During the Covid-19 Pandemic

Philadelphia was a shit-show for the mail-in ballot.

— Daren, Philadelphia, August 27, 2020.

Voting in Pennsylvania

Before 2019, absentee voting in Pennsylvania was only permitted under specific circumstances.[147] On October 31, 2019, the state passed a new law, Act 77, which greatly expanded the ability for citizens to vote by mail.[148] The law created a new form of mail-in ballot that was almost identical to the state’s pre-existing absentee ballots, except that mail-in ballots did not require the voter to explain why they could not vote in person. The timing of the law forced election officials to address a larger volume of mail-in ballots than expected. “They were not anticipating Covid when they passed the bill to allow mail-in voting,” a law professor and Pennsylvania voter told Human Rights Watch.[149]

Normally the process for changing or consolidating locations for in-person voting in Pennsylvania is lengthy. The county court maintains authority over the number of election districts within a county and each district has a designated polling place, chosen by the county board of elections.[150] To alter the number of polling locations within a county, the county board of elections must petition the county court to create additional locations or consolidate and reduce polling locations.[151]

Originally scheduled for April 28, 2020, Pennsylvania’s primary approached as Covid-19 cases began to rise across the state. On March 6, Pennsylvania’s Governor, Tom Wolf, issued a Proclamation of Disaster Emergency.[152] On March 27, Wolf signed into law Senate Bill 422, which rescheduled the primary election and allowed polling places to be consolidated at an accelerated pace without the normally required court approval. The new law provided counties a “quicker process” for locating new polling locations or consolidating polling sites and eased rules around staffing at polling centers.[153] In addition, the secretary of the commonwealth released guidance for county boards of elections on polling place consolidation, notice to citizens, and social-distancing at the polls.[154] A press release issued by the governor on March 27 named Covid-19 as a specific reason for the changes.[155]

While Bill 422 allowed for consolidation, it required that the consolidation not result in more than a 60 percent reduction of polling place locations in each county. A subsequent press release reiterated these points and potential, if vague, remedies the counties could use, stating: “Counties must notify voters of polling place changes, and may do so in a variety of ways.”[156]

The secretary of the commonwealth guidance and the provisions of the new law relating to polling place consolidation applied to Pennsylvania’s primary only. Provisions of the law enabling reassignment of poll workers may be used in future elections. Experts predict polling place consolidation is likely to occur in upcoming elections, but how many will require court approval is unknown.[157]

Voting in the primary election was delayed five weeks from April 28 to June 2.[158] In the lead-up to the primary, the Democratic and Republican parties and nonpartisan civil society groups encouraged Pennsylvanians to vote by mail.[159] The state launched an awareness raising campaign about the date change and likewise encouraged voters to apply for mail-in ballots.[160] The governor’s office issued a statement outlining ​plans to send 4.2 million postcards to residents reminding them of the new registration deadline and explaining the vote-by-mail option.[161] Election officials ran public service announcements on radio, TV, social media, and streaming services.

Prior to 2000, Pennsylvania disenfranchised people in custody for felony convictions and those with felony convictions who had not previously registered to vote until five years after their release from prison.[162] The Sentencing Project estimated in 2016 that these laws took away the voting rights of some 50,000 Pennsylvanians, about half of whom were Black.[163]

Today, individuals currently incarcerated with a felony conviction and those convicted of violating election laws in the previous four years may not vote in the state of Pennsylvania. However, people released from custody with felony convictions, those who are convicted of misdemeanors, and all people held in jails pre-conviction retain the right to vote. Once registered, jailed voters need to request an absentee ballot to vote. Both registration and requesting an absentee ballot are commonly done via the internet and may pose a challenge for some confined people who do not have internet access.[164]

Poll Consolidation and Changes in the June Primary

Philadelphia County, home to the state’s largest city, had a lower turnout in the 2020 primaries compared to 2016. According to the Philadelphia Inquirer, 32.4 percent of registered voters cast ballots, down from 39 percent in 2016.[165] Of those who voted, 50.2 percent did so by mail, 47.9 percent were in person, and 1.9 percent voted with a provisional ballot.[166] Other parts of the state, for example Allegheny and Bucks counties, also reported lower voter turnout compared to 2016,[167] but the drop off in numbers was not as great as in Philadelphia County.

Like in other states, Covid-19 posed a challenge for election officials across Pennsylvania. The pandemic made it harder to recruit polling place volunteers (who tend to be older and thus more vulnerable to severe complications from Covid-19 than the population at large),[168] required more spacious polling locations to help voters and workers maintain social distancing,[169] and necessitated money to acquire additional personal protective equipment and sterilization products.[170] Several of these concerns served as the impetus for the legislation to make it much easier to close and consolidate in-person voting locations.[171]

Lisa Deeley, chair of the Philadelphia Board of City Commissioners, which oversees poll workers, told The Philadelphia Inquirer: “‘Poll worker recruitment is always hard, but it is especially hard when whole election boards are telling us that they will not be working due to Covid-19, like they are doing this election.”[172]

A local voting rights activist told Human Rights Watch that younger, less experienced poll workers will be needed in November, but also their inexperience should be planned for ahead of November. “A lot of the polls are run by older people who had been doing that type of work for a while,” he said. “With Covid-19, a lot of younger people without the experience or the training had to step in. They will need to do it again next time around as Covid is not going anywhere.”[173]

On May 18, the Philadelphia Board of Electors sought approval to consolidate additional polling places beyond the 60 percent allowed by the new legislation.[174] Nine of the eleven proposed consolidations cited poll worker safety as a critical concern.[175] In all, 190 polling places out of 831 used in previous elections remained open for the June 2 primary election, representing more than a 75 percent reduction in polling places.[176]

As ordinary notice requirements were waived, many voters did not know about changes to polling locations.[177] Voters who were able to find their new or consolidated polling locations had lengthy travel times[178] and encountered long lines, crowding, greater risk of exposure to Covid-19, and confusion.[179]

Some voters told Human Rights Watch that people were not informed of changes before June 2, election day. “On the election board’s website they would give out some general info and they ran some ads about upcoming changes,” one local activist said. “But for some people in the neighborhoods they learn things by word of mouth. This is especially true if you are from a disenfranchised community. In that case, you didn’t know where to go.”[180] Pennsylvania Department of State officials acknowledged that in late May:

[T]here was no message or indication on the website alerting voters that polling place locations were changing, and that they should check back at a later date. That meant the voters visiting the site had no way of knowing if their polling place information was up to date.[181]

Using data obtained from the state under a Right to Know Law request, Human Rights Watch compared the numbers of polling locations open for the 2016 primary with those open for the June 2020 primary in Pennsylvania. We found a there was a decrease of 606 polling locations, a 10.7 percent decrease statewide. In about 26 percent of the 1,581 zip codes in Pennsylvania there was a reduction in the number of polling places. In total, about 5.7 million people (45 percent of the population of Pennsylvania) live in a zip code that saw a reduction in the number of polling places. Statewide, white voters and racial minorities were impacted relatively equally by these polling place closures,[182] but the impact on Black voters was more pronounced because they are more likely to vote in person, less likely to vote by mail,[183] and less likely to own a vehicle to navigate to the new polling locations (in 2017, 40 percent of Black and 20 percent of white people in the city of Philadelphia did not own a vehicle).[184] A ward leader for the Democratic Party submitted a declaration in NAACP v. Boockvar[185] attesting that:

Crowding 12 divisions into 1 location at Comegys [elementary school] was problematic . . .. Residents from those divisions are almost exclusively African American and have a well-documented history of voting in person. Although members of my ward worked diligently to distribute materials so registered voters could apply for [vote by mail] VBM ballots, we knew our efforts had only limited successes and so we expected long lines at this polling place. Sadly, we were right. Because of the lines at Comegys, I know that many prospective voters, again who were predominantly African American, left without voting.[186]

One Black voter told us of his frustration with the change to his poll location and his inability to access the correct location online:

On June 2 I went to my polling station on N. 25^th street, in Philadelphia... I went there thinking I would vote. It was closed. There was nothing set up, no notifications, no signs. I tried to get on the city and state websites, but the sites were freezing up. You put in your zip code after entering all the info, and the site just froze up. So finally, I just decided to get in my car and drive around. I was just looking for crowds and lines, for somewhere to vote. I drive around for 30 minutes and finally found a crowd on 20^th and Cecil B Moore [Avenue]; it was at a school. But I was not registered there, so I had to do a write in [provisional] ballot. I waited in that line for over an hour… I left early in the evening. I spent most of the day on this.

Someone else would have been discouraged. I myself was very, very discouraged, to the point of almost giving up. But I had my own car, so I was flexible. If I had been taking public transportation, it would not have been possible. I would have given up. I would not have known where to go.[187]

By contrast, a Black voter from Pennsylvania’s Delaware county told us she voted “at my normal polling place. There is never a line there because it’s a white part of town, it’s not Philadelphia. My sister says they were stressed out in Philly.”[188]

Mail-in Ballots and the June Primary

Citing public safety, political parties, state officials, and non-profits all encouraged residents to use the new mail-in system to vote. The onset of Covid-19 meant that the new mail-in system would not get a test run in a municipal election (which generally has a lower turnout) and glitches would have to be worked out in the process.

People who requested mail-in ballots early, around April, told Human Rights Watch that they encountered no problems. “I voted by mail,” a local activist told Human Rights Watch. “I saw the uncertainty early on when the election was pushed back and was able to vote, track it and I confirmed early on that my ballot was counted.”[189] Another voter saw a story about mail-in voting on a local news station and decided it would be easier to do it early on. “It was an easy process,” he said. “I applied online and three weeks later they said my ballot had been received. I had Covid-19 fears so this was just easier. I was glad I did it remotely.”[190]

Other voters, those who waited until May to request the mail-in ballot, encountered difficulties and did not have their votes counted. One voter said, “I should have done it earlier I guess. The system was good about the email notice on the status [of the ballot], but I never received it. After the elections I got a notice that they received the envelope back as returned undeliverable. I could have put down the wrong address, but I don’t think I did.”[191]

Interviews for this report and media accounts confirm that Pennsylvania’s first mail-in system resulted in ballots lost due to no fault of the voter.[192] One voter told Human Rights Watch:

I tried to vote mail-in. Like others I thought this would be safer. One of my sons was not a registered voter and he got his registration. We all decided to get the mail-in ballots. We started to get the ballot information in March, but mine did not come. In April there was nothing, then in May my son’s arrived, but still nothing for me.

So I started to call them. Some days I never even got a person. I can’t tell you how many times and days I called. When I did get a person they sounded irritated and they would say, “Just keep waiting for your ballot.”

Finally, I called a friend in Pittsburgh who works for the county and she said, “Just go to the voting place on June 2.” So I went and they let me vote. . .I told them I tried to do mail-in and one of them said, “It is a mess all over with the mail-in ballots.” But I had a ballot there and I voted.[193]

Shortcomings of the mail-in ballot procedure, coupled with speculation over the capacity of the US Postal Service, may lead to mistrust of the mail-in system in November. One voter who successfully used a mail-in ballot in June, explained to Human Rights Watch why he will vote in person in November: “I feel safer at the polling center. I see what is going on at the post office and I am not happy with it. I am not sure where I will be voting in November, but I don’t feel safe with the post office.”[194] An elections attorney in Pennsylvania recommended that the state adopt more drop boxes in easily accessible locations, including in front of polling places, in preparation for November: “The drop boxes are secure, they build confidence. I know, anecdotally, that African Americans come to the polling centers because. . .it has real meaning to them and they want to see their vote counted. The drop box could help facilitate this.”[195] At the same time, a local activist said that many older Black voters will insist on voting in person on the day of the election:

It is a ritual for them. It shows respect for the people who put in the fight for them to be there. Also, they are asking themselves, “Is it really safer to vote by mail? If a ballot won’t be counted?” There is no recourse for the mail-in ballot, it is just not counted. So they are saying, “I can wear a mask and gloves and I can make sure my vote will be counted.” For them it is worth the risk.[196]

Additional Steps Needed to Ensure the Right to Vote in Pennsylvania

As the above discussion makes clear, Pennsylvania legislators and election officials should prioritize increasing the number, accessibility, and days and hours of in-person voting locations, particularly in locations where voters are more likely to vote in person. They should also refrain from adopting any further legislation or measures to enable reductions in in-person voting locations. Officials should recognize that in-person voting is often the preference for voters of color, including Pennsylvania’s 12 percent Black and nearly 8 percent Latinx population.[197]

The state also needs to further invest in its mail-in voting system. Although the system is new, officials gained experience with it in the June primary and should apply lessons learned to better ensure the right to vote in November and beyond. One innovation that may be relatively easy to adopt is the placement of secure drop boxes for mail-in ballots near polling places or other easily accessible locations in communities. This should be a priority for neighborhoods with significant populations of voters of color and for Black populations, in particular. The secure drop boxes may offer some semblance of in-person voting experience while potentially reducing the numbers of people seeking to vote in person inside polling locations on election day.

Officials need to prioritize educating voters about their options for exercising their right to vote, and set an adequate number of polling locations in advance so that voters do not experience confusion on election day when navigating to polling sites.

While Pennsylvania’s law enfranchises more people who have been arrested or convicted of criminal offenses than other states with more stringent rules, state election officials need to prioritize voter education, registration, and absentee ballot request drives among voters in jails, those with misdemeanor convictions, and voters recently or soon-to-be released from confinement after a felony conviction. In 2016, ACLU Senior Staff Attorney Sara Rose told National Public Radio, “because there are a number of states that require people to take more steps before they can vote if they have a felony conviction, there’s a lot of confusion over who can vote with a criminal conviction in Pennsylvania.”[198]

State election officials should ensure that people without a stable address can register and receive their ballots at general delivery postal addresses or at open state or city government offices. The current voter registration form offers this instruction to Pennsylvania residents:

If you live in a rural area or are homeless and do not have a street address or a permanent residence, please . . .use the map on the printed form to show where you live or spend most of your time, and mail it to your county voter registration office.[199]

While this accommodation is useful for those wanting to register, it does not afford those without a mailing address an opportunity to vote by mail because there is no location to which a ballot may be mailed. Moreover, some Pennsylvania citizens without a stable address may experience problems with their voter IDs not matching their registration information. These potential problems require urgent attention since in addition to the numbers of Pennsylvanians without housing prior to the Covid-19 pandemic (as of January 2019 about 13,000 on any given day),[200] and prior to the Centers for Disease Control and Prevention’s moratorium on evictions, the Aspen Institute estimated some 633,000 additional Pennsylvanians may be evicted by the end of 2020.[201] Some voters are still likely to move despite the moratorium because they are anticipating its end, or because they need to reduce housing costs regardless.

 

IV. Arizona Elections During the Covid-19 Pandemic

In person voting is a direct representation of what democracy looks like. We need to keep voting in person; and expand voting opportunities.

— Tomas Robles, co-executive director, LUCHA, Phoenix, August 13, 2020.

[W]e in Arizona can call into question people’s insecurity about voting…. In this state the reason that people participate is because all of the community organizations have stepped up and communicated about the importance of vote by mail. Arizona is a state where you can demonstrate that vote by mail has worked for our communities.

— Alex Gomez, co-executive director, LUCHA, Phoenix, August 13, 2020.

Voting in Arizona

A substantial share of Arizonan voters are experienced and comfortable with voting by mail.[202] For most presidential elections, between 75 and 79 percent of Arizona’s electorate votes by mail.[203] The state’s use of voting by mail prior to the Covid-19 pandemic meant that few innovations were needed in light of the pandemic to ensure citizens could easily exercise their right to vote by mail during the primaries in March and August.[204] We repeatedly heard about the ease and success of Arizona’s vote by mail procedures from white voters. For example:

• A white female voter in Tucson said her experience was unremarkable: “I voted by mail in the last election and it was easy, not surprisingly. I’m not part of a demographic that has any trouble. Almost everybody I know is privileged and everybody votes by mail…. I do know a lot of people immediately send [their ballot] off once they get it.”[205]
• A white male voter said, “I’ve had just a great experience voting in Arizona…. I’ll certainly mail my ballot early so that timing isn’t an issue and I will mail it at a post office to make sure it gets to where it needs to go.”[206]
• Another white female voter said, “I’ve been mail-in voting for years…. There are a lot of safeguards and they’ve designed the envelopes well. You have to have your wits about you but honestly it’s easy. What I do see as an issue is if the mail is late, or if people steal from our mailbox.”[207]

Populations of color, including Latinx, Native American, and Black people in the state are less likely to vote by mail than white voters. According to the executive director of one statewide voting right organization, “The people who are most registered to vote by mail are conservative white voters.”[208] Another Arizona voting rights organization explains, “Arizonans who are less likely to vote by mail [include] Native Americans, Latinos, African Americans, and students.”[209] Similarly, the Brennan Center for Justice found that in the 2016 presidential election in Arizona (a state that is 54 percent white, according to the US Census) “at least two-thirds of all mail ballots were cast by white voters.”[210]

Arizona allows voting by mail for people held in its jails, but according to local advocates, participation is incredibly low and more work needs to be done to educate both Sheriffs and jailed voters. The state has done some work to ensure the voting rights of those in nursing homes and in residential care facilities. While voters in such facilities may vote by mail, other accommodations available prior to the Covid-19 pandemic, such as van services to polling locations for residents of care facilities for in-person voting and the dispatch of special teams to care facilities to assist voters who may need help in filling out their ballots,[211] are not available due to the pandemic. Maricopa County has adopted the possibility for individuals in care facilities, those we are self-quarantined and people with Covid-19 to use Skype or Facetime and other innovations for contactless assistance in voting.[212]

Data on their voting patterns indicates that for Native American, Latinx, and other populations of color in Arizona, voting in person, including in-person early voting,[213] is essential.[214] The number of polling locations available to in-person voters is therefore critical to ensuring the right to vote without discrimination. Yet in a 2019 study, the Leadership Conference on Civil and Human Rights compared the number of polling locations in Arizona in 2012 with those available in 2018.[215] The study, which looked at 757 counties in 13 states, found Arizona had the most widespread reduction in polling places. Almost every county in Arizona (13 of 15 counties) closed polling places, for a total of 320 closures between 2012 and 2018.

The trend to close polls has continued. In Arizona’s 2018 midterm election, the state’s most populous county, Maricopa, had 500 polling locations. In its 2020 Presidential Preference Election, Maricopa had 150 polling locations (with the advent of Covid-19 the number was reduced from 150 to 80 due to lack of poll workers and the need to shift locations away from senior centers).[216] All of the 80 locations were vote centers, where voters from anywhere in the county could cast their ballots. In its August 2020 primary, Maricopa had 100 polling locations (also all vote centers).[217] Alongside the reduction in numbers, the state has innovated to ensure voter access. In August, the county phased-in early voting over a period of weeks, with four centers open for early voting about four weeks prior to the election, and 55 more which opened about two weeks prior.[218] Moreover, the state has counteracted the reduction in number of polls by investing in mail-in voting in Arizona, using vote centers, enabling early voting, and increasing the number of check-in stations available per poll location.[219]

Arizona’s Primaries: Voting by Mail and In Person Both Important

In its March and August elections, Arizona election officials worked to provide in-person voting opportunities despite the Covid-19 pandemic. The Arizona state director of All Voting is Local described in-person voting during the March and August elections as:

Not perfect but not bad. . . .Even in places hit hard by Covid, like the Navajo Nation, the tribes still supported local voting sites; they figured out a way to work that out. . . .Of the 15 counties, most did not make any substantial changes to their polling places and that’s good. It’s up to the local board whether or not you can have early voting—but we had some early voting in every county.[220]

However, the fact that Maricopa used all new voting locations in the primaries brought some problems for in-person voters. A Latinx voting rights advocate explained that in March in Maricopa:

There were longer lines…. In one case I know of the poll worker said, “this person wasn’t in line before 7 [pm],” and that person didn’t get to vote…. People were still being told that “it wasn’t their polling location” even though that wasn’t necessary [because voters could vote at any location in the county]. With older poll workers they got confused about this…. Also we had a lot of machines that broke. People had to wait a long time for machines to be fixed. I could see a lot of those things happening again; but it’s also true that for some in-person voters it was a pretty easy process.[221]

Some voters in Maricopa County had trouble finding the new polling locations. The same Latinx voting rights advocate said that during the August election in majority-Latinx West Phoenix:

A lot of the places we went to were really hard to see and to access. For example, we got an address for a polling location and “Food City” was there. And we’re like “okay is the location in Food City”? But there was a little sign…. We found it and it was a little room and just like a door, super-creepy…. Another location—Fowler—was really hard to find…. Once folks got there, we didn’t hear about people being turned away. We did hear that there were no Spanish speakers inside.[222]

The state director for All Voting is Local told Human Rights Watch:

Most of these are new locations…. The County needs to substantially up their signage game. Google their own addresses, find the path to navigate to the polling place, and make it easy for voters.[223]

Looking toward November, some advocates are concerned that Maricopa County in particular is planning for too few in-person voting locations, especially given the predicted increase in turnout for a general election.[224]

For Native American voters, neither voting by mail nor voting in person is an easy option, which means that both need to be available to ensure the right to vote. This seems to be well-understood by some Arizona election officials. One said:

We work with intertribal government directly to figure out solutions for our Native voters. We work together to identify individuals who need assistance or who don’t receive mail. Often, that means we have to provide an in-person environment if they opt not to do the mail.[225]

Detailed analysis of factors impacting Native American voting is beyond the scope of this report, but has been covered by voting rights reports issued by the Native American Voter Engagement Project of Instituto, the Native Vote project at Arizona State University, and by Patty Ferguson-Bohnee, faculty director and clinical professor of law at the Indian Legal Clinic housed at the university, among others.[226] One obvious issue hampering the ease of in-person voting for Native Americans is the distances some people must travel to vote given that their counties of residence may cover large geographical areas; another is that they often have personal or cultural reasons to maintain their registration in one location while working in another. For example, for the March primary, one Native couple, who preferred to maintain their voter registration on the Navajo Nation, had moved to Tsaile to work at Dine College:

[B]ut she was registered [154 miles away] in Kaibito and her husband was registered [193 miles away] near Flagstaff. So, they had to travel extremely long distances so that each could vote [in person].[227]

Arizona’s Latinx and Native American voters have also experienced some problems with voting by mail in the recent primaries. Some Latinx and Native American voters both struggle to read and fill out ballots due to language difficulties or fear of government forms.[228] Many Native voters find the address requirement a major impediment to
mail-in voting:

• “Two-thirds of Native voters live in the city—but their address is on the reservation and so there are a lot of Native American voters that no one can access or find.”[229]
• “Our community members generally prefer to vote in person on election day because voting by mail is difficult due to unreliable mail service on the reservation and issues related to their nontraditional addresses.”[230]

Latinx voters also benefit from both in-person and mail-in voting options. One Latinx voting rights advocate told us that during the primaries held in the context of Covid-19, “it’s been a little bit of both, older Latinx folks want to vote in person. But the younger voters have been voting by mail.”[231]

Additional Steps Needed to Protect the Right to Vote in Arizona

Voter education is crucial to ensuring the right to vote in Arizona. According to one Maricopa County elections official, “Right now the critical need is communicating with voters on how they can be successful in this election.”[232] Voter education works when it is led by the communities toward which it is directed and when it embraces Arizona’s rich diversity, including even within one demographic category, as well as the multiple languages spoken by Arizona voters.[233] For example, one Native American voting rights advocate explained:

There are 22 tribal communities [in Arizona]. They are quite diverse—there are urban and rural; the cultures are very different…. We have many Native American elders age 50 and up…who are out at the polls and…when you think of the group under age 50, the needs are different.[234]

Arizona’s reliance on voting by mail is an essential tool for the state in the context of Covid-19, even if it is a mode of voting that has proven less useful for Latinx, Native American, and Black voters. There are linguistic, timing, and registration innovations that Arizona has tried and should continue to try to make mail-in voting more accessible.[235] This is a complex task since pending court cases may alter the rules for voting by mail in Arizona,[236] and it may be impacted by US Postal Service capacity.[237]

To minimize any problems stemming from possible constraints of the Postal Service, Arizona should prioritize secure ballot drop boxes.[238] According to our interviews with Maricopa County officials, this is a priority for them, though there are some limitations around securing and monitoring these drop boxes that the county and state should work to overcome.[239] Arizona should work to place secure ballot drop boxes near areas of public transportation, residential care facilities, and lower income and minority communities.

In-person early voting is essential to guaranteeing the right to vote in Arizona and can reduce crowds and lines at polling stations to help prevent Covid-19.[240] This is in part because in-person, early voting locations serve as secure sites for return of vote by mail ballots, in addition to secure drop boxes.[241] Other innovations for early voting should be considered. According to the director of a statewide NGO in Arizona:

We need to be pushing for early voting in Tribal lands. Navajo, Tohono O’odom, a lot more early voting and a lot more creativity. Doing drive through voting—in a parking lot…. Set up a ballot-on-demand printer in the parking lot so people can get their ballots and vote…. For the August election Coconino County set up drive through early voting. That’s a really smart thing. They should stand up like 10 of those. For a subset of people who want to do it; that’s a safe way for people to vote.[242]

While specific problems exist with early voting in Arizona due to voter ID requirements,[243] the state has made some changes, acknowledging that the pandemic has made renewing drivers licenses very difficult.[244]

Other adaptations to make in-person voting more equitable, such as having adequate translation to Spanish or Native languages at polling stations, should be prioritized.
For example:

At polling locations at certain sites, they have Navajo translators but it takes resources, so it doesn’t happen for smaller tribes in Arizona. A lot of times they [these smaller tribes] really are just dismissed because no one wants to take the effort to make sure there is a polling location that is convenient to them.[245]

Arizona needs to work to ensure the voting rights of people who do not have a stable address or who may have been recently evicted. Prior to the Centers for Disease Control and Prevention’s moratorium on evictions, the Aspen Institute estimated that more than half a million Arizonans are at risk of eviction by the end of 2020.[246] Some voters are still likely to move despite the moratorium because they are anticipating its end, or because they need to reduce housing costs. Therefore, the state should ready itself for an increase in evictions before the November 2020 elections. While Arizona law does provide options for individuals without an address, voters and election officials should educate voters about these options, including registration for people at “general delivery” post office addresses.[247] Looking forward, Arizona law should be changed to allow for election
day registration.[248]

There remains an enormous voter, probation officer, court and sheriff education problem in Arizona with regard to voters who are or were involved in the criminal legal system. According to testimony and analysis by the US Civil Rights Commission,[249] at least half of the people in Arizona’s jails retain their voting rights, but the state has not lived up to its responsibility to ensure they knew about and could exercise these rights in recent elections.[250] According to the Arizona Coalition to End Jail-Based Disenfranchisement, “During the March [primary] election, out of those estimated 2,700 eligible [jailed] voters, 7 voters cast a ballot.”[251] As one election official put it, allowing in-person voting in the jail “takes some partnership from the Sheriff’s Office. Because of Covid-19 and other logistical challenges, the Sheriff was not able to allow for in-person voting within the jails at this time. Eligible voters detained in jails are able to vote by mail.”[252]

Under Arizona law, a felony conviction triggers cancellation of voter registration[253] and formerly incarcerated people with felony records are required to re-register. This is particularly concerning because Latinx and Black communities are disproportionately affected by felony disenfranchisement and the process is sufficiently complicated to have a chilling effect on voters.[254] In addition, people with two or more felony convictions remain disenfranchised in the state even after they have served their sentences, as are people with past felony convictions who still owe fines and fees to the state.[255] Arizona should change both law and policy to ensure re-enfranchisement in accordance with international human rights law when a person is released from confinement, regardless of the crime of conviction and regardless of any fines and fees owed.

Human Rights Watch also urges Arizona election officials to keep law enforcement away from polling stations unless absolutely necessary for polling station security. The executive director of a voting rights organization in Arizona said, referring to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agencies, “If I’m in [a] mixed status family, if I see an ICE / CBP van, [it] makes it really scary to go into the voting booth.”[256] The executive director of a Latinx voting rights organization said:

When polling places are in schools and when you go and see a police car, that’s scary. [During the March election] I had one person call me and say “oh no I can’t go there, there are police there.” We know that the presence has an effect on people even though in that case they didn’t stop anyone.[257]

 

V. Voting Rights and Non-Discrimination under International Law

Elections During Health Crises

Governments around the world have grappled with managing elections during public health crises. In 2014, Liberia proceeded with in-person voting for senatorial elections during an outbreak of the Ebola virus. An international elections expert told Human
Rights Watch:    

In Liberia, we worked with local community leaders to try to get them information on how to limit [Ebola’s] spread. Once it was time for Liberians to go to the polls, the crisis of the epidemic had largely passed.[258]

While Liberia’s election was largely regarded as credible, the election was delayed and election rallies were banned because of Ebola, and turnout on election day was about
25 percent.[259]

Covid-19 has affected elections internationally in a variety of ways. According to the International Institute for Democracy and Electoral Assistance, from February 21 to August 17, 2020, at least 36 countries and territories have held national elections or referendums as originally planned despite Covid-19, and at least 25 countries and territories have decided to postpone national elections and referendums, citing pandemic concerns.[260]

South Korea went ahead with its April 15, 2020 parliamentary election despite the pandemic. South Korea recruited 20,000 additional poll workers; ensured temperature checks and widespread use of masks and gloves for voters and poll workers; prioritized mail-in voting; encouraged voters to take advantage of early voting at 3,500 stations where prior registration was not required; provided accommodations for people who were quarantined at home or hospitalized; kept all 14,300 election-day polling places open (with the exception of many polling places in diplomatic missions for overseas voters, which were closed);[261] and created separate polling places for people who tested positive for the virus that causes Covid-19 or who failed temperature checks.[262] According to one data analyst, these innovations and accommodations combined with a “flattened” Covid-19 curve to result in the highest voter turnout in South Korea since 1992 (66 percent of voters turned out).[263]

Another international elections expert interviewed for this report explained that in countries such as South Korea and North Macedonia:

What we saw instead of closing stations was an increase in time available for voting. And what we are recommending to the election commissions we work with is that, if anything, they increase the number of polling stations to reduce crowds. We also did not see as many dropouts of poll workers in other countries as we saw in the US. All over the world, we see older people [normally] taking those positions and they are a higher risk group, so authorities have to train more people who can replace them if needed and build poll workers’ confidence that the elections will be safe.[264]

Other countries, such as Australia, France, and Iran, were experiencing rising numbers of Covid-19 cases at the time they held their elections, which appears to have negatively impacted voter turnout.[265] In August, Indonesia announced its plan to increase the number of available polling stations by 50,000 in advance of its December 9, 2020 regional elections.[266]

US Obligations under International Human Rights Law

International human rights treaties to which the United States is party recognizes the rights of all citizens to vote without discrimination. According to the US federal government, “The most fundamental principle defining credible elections is that they must reflect the free expression of the will of the people.”[267] This statement echoes the International Covenant on Civil and Political Rights, which provides that “every citizen shall have the right and opportunity” without discrimination or “unreasonable restrictions” to “vote and be elected at genuine periodic elections…guaranteeing the free expression of the will of the electors.”[268]

International human rights law “does not impose any particular electoral system.”[269] It does set out voting rights and non-discrimination obligations that are binding on the national, state and local governments in United States.[270] In its general comment on the right to vote, the UN Human Rights Committee, the independent expert committee that provides authoritative interpretations of the ICCPR, stated that governments are obligated to take “effective measures to ensure that all persons entitled to vote are able to exercise that right.”[271] Governments are expected to address “factors which impede citizens from exercising the right to vote and the positive measures which have been adopted to overcome these factors.”[272]

In addition, governments have an obligation under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to eliminate racial discrimination in all its forms and guarantee the rights of everyone in the enjoyment of political rights, including the right to vote.[273]

To ensure that all citizens are able to exercise their right to vote in the current context of the Covid-19 pandemic, federal, state, and local officials in the United States should take all necessary measures to ensure that both in-person and “special voting” are available and accessible so that all voters without discrimination have an adequate opportunity and means to vote.

As they plan for upcoming elections in November 2020 and beyond, policymakers and election officials should look to the following six principles consistent with international human rights law.

1.     Protect the right to health and the right to vote.

US federal, state, and local governments have a responsibility to protect the human rights to life and to health in the context of Covid-19.[274] In order to do this, election officials in the United States should consider a range of measures, such as open registration, mail-in voting, multi-day early voting, increased numbers of polling places to decrease crowding, imposition of social distancing rules, and sanitation and disinfection protocols at voting stations. Election workers and monitors should be provided appropriate personal protective equipment (PPE). Where wearing of masks or gloves is required to enter a polling place, such materials should be made available at polling places and no one should be denied their right to vote on grounds of not having the proper equipment.

While the above measures are critical to protecting the rights to life and health, officials should also ensure that any conditions that apply to voting are objective and reasonable, consistent with the right to vote.[275] For example, as noted above, Milwaukee election officials’ decision to reduce the number of polling places from 180 to 5 in the state’s presidential primary on April 7 failed to meet this standard: far from being objective and reasonable, the reduction in fact may have increased the risk to life and health due to increased crowding and longer wait times for those who tried to vote in person, while also drastically limiting the ability of people to vote. If restrictions on the right to vote are objective and reasonable but produce racially discriminatory effects, they also violate international human rights standards.

2.     No unreasonable restrictions, discrimination, or racially discriminatory effects.

Under article 25 of the ICCPR, every adult citizen has the right to vote, which may not be subject to discrimination on the basis of race, sex, religion or other listed categories.[276] The ICERD makes clear that even when government officials have no discriminatory intent, they are obligated to prevent “discriminatory effects” of any policy, including restrictions on the right to vote that disproportionately impact particular racial groups.[277]

Officials should pay particular attention to this principle in light of the long US history of discrimination against Black and brown people, including with respect to voting. The UN Committee on the Elimination of Racial Discrimination, the expert body charged with providing authoritative interpretations of the ICERD, has expressed particular concern over “the obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote.” The US Supreme Court decision in Shelby County v. Holder has heightened these concerns.[278]

It is also because of the racially discriminatory effects of felony disenfranchisement laws in the United States, primarily affecting Black Americans, that the Committee on the Elimination of Racial Discrimination and the Human Rights Committee have recommended that the United States end disenfranchisement of people who have completed their sentences, ensure voting rights in jails, and review all automatic felony disenfranchisement laws.[279] Human Rights Watch interprets the requirement that individuals complete their sentences to mean that they are released from incarceration; accordingly, people under probation or parole supervision, or who may owe fines and fees, should have their voting rights restored and respected.[280]

3.     Provide forms of secret and secure voting, including in-person voting and “special voting,” that ensure all citizens are able to vote.

Election officials in the US need to take “effective measures to ensure that all persons entitled to vote are able to exercise that right.”[281] International standards recognize that “special” forms of voting such as absentee mail-in ballots may “give greater effect to the right to vote.”[282] International law requires governments to ensure that each person’s vote is private and secret.[283] In-person voting should always be an option for voters, and requires attention to polling places: “Polling places must be established in locations that ensure that voters have an equivalent opportunity to exercise their right to vote in a way that is not unduly burdensome.”[284]

Given the various challenges to voting faced by different sectors of the US population, which are more acute in the context of the Covid-19 pandemic, officials should offer a range of in-person and “special” voting options that would ensure that all eligible voters are able to exercise their right to vote.

4.     Take positive measures to overcome difficulties in voting.

International human rights law obligates governments take “[p]ositive measures” to overcome specific difficulties, including some forms of disability, language barriers, poverty, or impediments to freedom of movement, that would “prevent persons entitled to vote from exercising their rights effectively.”[285] This includes anticipating the possibility that persons may need to change their addresses for voting purposes to general delivery addresses or other temporary addresses given the likelihood of evictions and housing transitions due to the economic impacts of the pandemic (some of which will persist despite the Centers for Disease Control and Prevention’s moratorium on evictions).[286] It also includes ensuring that voters only need to travel a reasonable distance to reach their polling places.

When a voter needs assistance in casting a ballot, assistance should be provided by someone chosen by the voter or by another person chosen in a neutral manner.[287] Governments should adopt measures to assist voters needing accommodation, including where necessary exemptions from requirements placed on other voters, to ensure persons are not denied their right to vote. This may include persons with disabilities, older persons, persons who are ill with Covid-19 or otherwise limited in their mobility, or others who may be not be able to comply, or need support to comply with new public health measures applicable to voting. Finally, election officials should make “information and materials about voting …available in minority languages.”[288] 

5.     Provide speedy review, appeal, and remedy (or “cure”) for voting rights violations.

International law requires an effective remedy whenever an individual experiences a human rights violation, including a voting rights violation. Voters claiming their rights have been denied or violated should be provided with a fair hearing and appeal, and the right to a speedy and effective remedy.[289] An effective remedy is most likely one that allows the complainant to “cure” their denial of voting rights within the election timeframe.[290]

6.    Use impartial non-partisan elector observers.

Each constituent state of the United States has unique and sometimes contradictory rules governing the use of electoral observers[291] and only 35 US states have laws explicitly allowing and regulating the use of non-partisan electoral observers.[292] However, impartial, non-partisan, electoral observers are useful in assisting officials with holding free and fair elections. In accordance with international standards, such observers often add to the credibility of elections by recognizing and highlighting those processes that worked well to protect the right to vote, as well as identifying problems.

 

Acknowledgments

This report was researched and written by Alison Leal Parker, US Program managing director, and Lewis Mudge, Central Africa director (seconded to the US Program for this project). Ida Sawyer, acting director for Crisis and Conflict, provided essential research and writing assistance. Jessica Randall, a statistician at Emory University, provided pro bono data analysis for this report. Thomas J. Rachko, Jr., US program acting advocacy officer, provided editing and publication assistance, and Jana Smith, US program associate, provided research assistance.

Nicole Austin-Hillery, US Program executive director, edited the report; Joseph Saunders, acting program director, provided program review; and Maria McFarland Sánchez-Moreno, senior legal advisor, provided legal review. Additional review was provided by Phil Robertson, Asia division deputy director; Jude Sunderland, Europe and Central Asia director; Lena Simet, senior researcher, business and human rights; Laura Mills, researcher, health and human rights; Joe Amon, health and human rights consultant; Brian Root, senior quantitative analyst; and Carlos Ríos-Espinosa, senior researcher and advocate, disability rights. Fitzroy Hepkins, administrative manager; José Martínez, administrative senior coordinator; and Travis Carr, publications design coordinator, coordinated layout and production.

We are grateful to the following attorneys at Dorsey & Whitney, LLP for their legal research: Shannon Bjorklund, Josh Colangelo-Bryan, Ginny Coles, Erin Conti, Margaret Fitzpatrick, Roxanna Gonzalez, Morgan Helme, Alex Hontos, Max Lesser, Thad Lightfoot, John Marti, Jamie McCarty, Michelle Micetic, Smith Monson, Amy Montgomery, Alissa Smith, Forrest Tahdooahnippah, Bri Whiting and Charis Zimmick; and to the following experts for their feedback along the way: Molly Collins, advocacy director, ACLU of Wisconsin; Alex Gulotta, Arizona state director, All Voting is Local; Eileen Newcomer, Wisconsin director, League of Women Voters; Angela Lang, executive director, Black Leaders Organizing for Communities; Alessandra Navidad, executive director, ACLU of Arizona; Raina Roanhorse, Native outreach specialist, Instituto, Arizona; Peter Burress, campaign manager, Wisconsin, All Voting is Local; Joel Edman, executive director, Arizona Advocacy Network, Myrna Pérez, director, Voting Rights and Elections Program, The Brennan Center for Justice; and Leigh Chapman, director, voting rights program, Leadership Conference on Civil and Human Rights.

This report draws upon information, insights, and perspectives provided by the numerous practitioners, advocates, and election officials we interviewed. They provided candid assessments of the state of the US systems of elections, directed us to voters, helped us to shape our recommendations, and strengthened our understanding of voting rights issues in the states and communities in which they work. We are immensely grateful to each of them, whether named in this report or not.

Most importantly, Human Rights Watch wants to thank each of the individuals who shared with us their experience with voting and participating in US elections. We carry their stories with us and are inspired by their perseverance even in the face of numerous obstacles. Without them, this report would not have been possible.