AFT Files Voting Rights Lawsuit in New Hampshire to Ensure Access to Absentee Voting

WASHINGTON—The American Federation of Teachers today filed a lawsuit against the state of New Hampshire alleging undue burdens on the rights of people to register and vote by absentee ballot, which would lead to the disenfranchisement of voters and threaten our democratic process. Marc Elias of Perkins Coie is serving as lead attorney.

In the midst of a pandemic, we should be doing everything we can to ensure people can vote safely and with confidence—in person on Nov. 3, early, absentee or by mail,” said AFT President Randi Weingarten. “But the state of New Hampshire has put in place a series of hoops for voters to jump through with the intended purpose of making it harder for people to cast their votes. We are taking this on as defenders of our democracy and to ensure everyone who is eligible to vote can do so in a fair and safe way in November. The AFT has a long history of standing up for the right of every American to be able to vote, and we are acting today on behalf of our members, those we serve and our communities.”

The lawsuit alleges that the heightened risk of COVID-19 transmission caused by in-person voting processes is particularly acute in New Hampshire, where the system is largely designed for in-person registration and voting, and necessitates multiple lengthy in-person interactions for nearly all voters to register and vote, while options for absentee registration and voting are limited. But while New Hampshire has recognized that this election could see a dramatic shift in absentee voting—predicting between 60 and 85 percent of all ballots cast in the upcoming election will be absentee ballots, versus less than 10 percent of mail ballots cast in previous years—it has maintained absentee ballot laws that severely and unreasonably burden the fundamental right to vote of all New Hampshire voters. These laws will most severely affect students, low-income voters, voters with disabilities and elderly voters. 

“We will not sit back and allow the state to disenfranchise thousands of young, low-income and disabled voters ahead of November,” said lead attorney Marc Elias. “New Hampshire has repeatedly tried to chip away at the voting rights of these communities. Our lawsuit today makes clear that the state must abandon its restrictive laws and practices so that every voter can safely cast a ballot and have it count.”

The absentee ballot laws being challenged include:

• The state’s rejection of any absentee ballots not received by, rather than not postmarked or mailed by, 5 p.m. on Election Day. This is problematic given the influx of absentee votes due to the pandemic, people navigating new voting processes, and the additional strain on the postal system.
• New Hampshire’s ban on the collection and delivery of voted absentee ballots. Now more than ever, it is important that states allow for third-party groups, such as voting rights groups, community groups, campaigns and the like, to collect and deliver absentee ballots to elections officials to make sure that they arrive in time to be counted.
• The lack of prepaid postage on absentee ballots. Studies have shown that when states prepay postage on absentee ballots even in ordinary times, the participation of voters goes way up. In the pandemic, however, the failure to prepay postage is likely to suppress voter participation even more broadly than in years past, because many Americans do not keep stamps at home. They will have to decide whether to break social distancing to leave their homes to purchase stamps, or purchase them in bulk online, which is a far more expensive prospect and therefore a less likely option in these challenging economic times.
• Requiring absentee voters to have a witness sign their application, which forces voters to risk exposure to the virus by seeking out an unnecessary witness to sign their applications.
• The state’s requirement to provide copies of ID and residency documentation.

The AFT is seeking injunctive and declaratory relief to these rules, arguing that they will result in disenfranchisement and are unconstitutional. The defendants in the suit are New Hampshire Secretary of State William Gardner and New Hampshire Attorney General Gordon MacDonald.