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Open Letter to Congress to Enable Mail-in Voting for All Eligible Voters

To Members of the United States Congress:

We, at Lawyers Defending American Democracy, are lawyers deeply committed to the Constitution, the rule of law and preserving the priceless American democratic form of government. We write to urge your strong bi-partisan support for a mail-in ballot option for every eligible American voter in every State in the upcoming November 2020 election. 

The right of American citizens to vote is the foundation of our democracy. Battles to preserve and expand Americans’ right to vote and self-govern were the basis of our Nation’s democratic founding, and integral to our Civil War and Reconstruction, the Women’s Suffrage movement, and the Civil Rights movement. The protections of U.S. citizens’ rights to vote are enshrined in the 15th, 19th, 24th and 26th Amendments to the United States Constitution. 

Chief Justice Earl Warren wrote in Reynolds v. Sims, 377 U.S. 533, 555 (1964): “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. […] Undoubtedly, the right of suffrage is a fundamental right in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Justice Hugo Black shared the same sentiment in Wesberry v. Sanders, 376 U.S. 1, 17 (1964): “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”

That cherished freedom is now threatened by a pandemic with fatal consequences for too many of our fellow citizens that become infected with it. In Wisconsin recently, a number of poll workers and voters became sick with Covid 19 after that state’s recent Presidential primary.

While two-thirds of States allow any eligible voter to timely request and submit a mail-in ballot without giving a reason, one-third of States limit the mail-in option to voters with various excuses.  

A few – Utah, Colorado, Hawaii, Washington and Oregon – use mail-in ballots exclusively for all elections.

Our nation’s most esteemed scientists on infectious diseases, such as Dr. Anthony Fauci and Dr. Michal Osterholm of the University of Minnesota’s Center for Infectious Disease Research and Policy, warn of a resurgence of Covid 19 this coming fall. The American public strongly favors voter options for a mail-in ballot.

Pursuant to Article I, Section 4, Clause 1 of the Constitution, the Elections Clause, States set the time and manner of elections, subject to such rules as Congress shall enact. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” In a long string of precedents, the Supreme Court has held that the power of Congress to regulate the conduct of federal elections is paramount.

The President has stated his concerns that mail-in balloting will result in lost elections for the Republican Party. The research to date is that it makes it easier for older, more Republican voters to safely vote, and it also makes it easier for young, infrequent Democratic voters to participate in elections. In other words, it increases turn out for both parties with little partisan advantage.

Closely related to the need for the availability of mail-in ballots is the need to maintain an effective U.S. Postal Service.  Having Congress maintain a Postal Service capable of reliably delivering mailed ballots throughout the country is essential to having a system of mail-in ballots.

In conclusion, we strongly urge you to require all States to offer mail-in ballots to all citizens eligible to vote in the upcoming federal elections. 

Signatories::

John Achatz – Access to Justice Fellow
Michael Altman – Former Partner
R. Peter Anderson – Former Judge, Massachusetts Trial Court
Paula Atkinson – Attorney and Concerned Citizen
Stanley Balis – N/A
Erica Flores Baltodano – Professor, Constitutional Law, San Luis Obispo College of Law
Charles Baron – Emeritus Professor Boston College Law School
Elizabeth Bartholet – Prof of Law, Harvard University
Barbara Berenson – Senior attorney (retired), Mass.Supreme Judicial Court
Marilyn Bernhardt – Associate General Counsel, America Hess Corp.
Michael Blank – N/A
Cynthia Buness – Former Senior Attorney with Motorola
Walter Carpeneti – Former Chief Justice, Supreme Court of Alaska
William Carroll – Career Government; Retired as General Counsel Ballistic Missile Defense Organization
Brian Clemow – Retired Law Firm Partner
James Cotter, III – Law Offices of James J. Cotter, III
Charles Crumpton – Mediator/Arbitrator
Claudia Damon – Retired, Inactive
Gill Deford – Retired public interest lawyer
Carol Didget Pomfret – N/A
Fernande (Nan) R.V. Duffly – Former Justice of the Massachusetts Supreme Judicial Court
Kellie Early – N/A
Evan Falchuk – Former independent gubernatorial candidate for Massachusetts and founder of the United Independent Party
Walter Featherly – General Counsel, Private Sector
Cary Feldman – Attorney, Feldesman Tucker Leifer Fidell LLP
Nicholas Fels – Retired partner, Covington & Burling LLP
Timothy Ferguson – Partner, Former Vice Chair Grievance Committee 17C
Eugene Fidell -Counsel at Feldesman Tucker Leifer Fidell LLP and Florence Rogatz Visiting Lecturer at Yale Law School
George Fisher – Professor, Stanford Law School
Barbara Hayden Fitts – Counsellor at Law
Elizabeth Frantz – Attorney
Nancy Friedman – Retired attorney
Edward Geffnereffner – N/A
Leonard Glantz – Retired professor
Phyllis Goldfarb – Jacob Burns Foundation Professor, George Washington University Law School
Donna Goldsmith – Former Special Assistant Attorney General
Andrew Grainger – Former Assoc. Justice Mass Appeals Court
Ernest Haddad – General Counsel Emeritus, Mass General Brigham; Former Assoc. Dean, Boston University School of Law
Scott Harshbarger – Former National President of Common Cause and two-term Attorney General of Massachusetts
Richard Kaplan – N/A
Joel Kaye – N/A
Thomas Kite – Solo Practitioner
Mark Kolman – Former Chief, Criminal Division, United States Attorney’s Office for the District of Maryland, Former partner Dickstein Shapiro DC
Dane Kostin – N/A
David Krakoff – N/A
Eleanor Roberts Lewis – Chief Counsel for International Commerce, U.S. Department of Commerce (retired)
Julie Locascio – Attorney
Peter Lohnes – Former Associate General Counsel, Knowledge Mosaic, Inc.
Carolyn Longstreth – Senior Assistant State’s Attorney, CT
Fred M. Lowenfels – General Counsel Emeritus at Trammo, Inc.
Ellen Lubell – Principal, Tennant Lubell, LLC
Stanley J. Marcuss – Former Counsel to the U.S. Senate’s International Finance Subcommittee; former Senior Deputy Assistant Secretary in the U.S. Commerce Department; former partner, Milbank, Tweed, Hadley & McCloy; former Senior Fellow at Harvard’s Kennedy School; retired partner, Bryan Cave Leighton Paisner
L Stephen McCready – Attorney at Law
Robert McDaniel – Attorney at Law
James F. McHugh – Former Associate Justice, Massachusetts Appeals Court
Eduardo Medina – Attorney
Thomas Mela – Retired Managing Attorney of the Massachusetts Advocates for Children
Michael Meltsner – Matthews Distinguished University Professor of Law
Augustus Merlo – N/A
Richard Meserve – N/A
Alan Minuskin – Law Professor, Boston College
Bruce Mohl – Retired Justice, NH Superior Court, Former Deputy Attorney General of NH
John T. Montgomery – Ropes & Gray, former managing partner (retired)
Leslie Newman – Professor of Law Cardozo Law School
Carrie Newton – N/A
Cheryl Niro – Former Partner, Quinlan & Carroll, Past President Illinois State Bar Association
Edward Opton – University Counsel, Regents of the University of California (retired)
Scott Pomfret – Founder and Sole Member
Adrienne Prager – N/A
Gershon M. (Gary) Ratner – Co-founder, LDAD; Founder & Executive Director, Citizens for Effective Schools; former Associate General Counsel for Litigation, U.S. Department of Housing & Urban Development; former Associate Director for Litigation, Greater Boston Legal Services
Eric Rietveld – Associate at Sullivan & Worcester
Allan Rodgers – Retired executive Director, Massachusetts Law Reform Institute
Lisa Sahli – Attorney
Gary Sampliner – Former Senior Counsel, U.S. Treasury Dept.
Robert Saudek – Former Managing Partner of Morris, Manning & Martin
Don Smith – N/A
Mark Spiegel – Professor Boston College Law School
Stephen Spivack – AUSA and Former Chief of Special Prosecutions for US Attorney”s Office in the District of Columbia
Gary Starr – N/A
David Steelman – Former Vice President of a Non-profit
Marshall Stein – Former Assistant U.S. Attorney, District of Massachusetts; Former Chief Staff Attorney, U.S. Court of Appeals for the First Circuit
David W. Steuber – Retired partner, Jones Day
David Sullivan – Former MA Elections Division legal counsel
Lynn Weissberg – N/A
Lisa Weissler – Retired State of Alaska Assistant Attorney General
Peggy Wiesenberg – Access to Justice Fellow
Lucien Wulsin – Founder and retired Executive Director, Insure the Uninsured Project (ITUP)
Antonio Zuniga – Member of the AZ Bar