Louisiana should allow more access to absentee mail ballots for the Nov. 3 presidential elections, U.S. District Judge Shelly Dick ruled in a 44-page decision released Wednesday afternoon.

"The Court finds that Plaintiffs’ testimony clearly establishes that the state’s maintenance of limited absentee by mail voting imposes a burden on their right to vote," Dick wrote. "Clearly, based on the data and advice from state and federal authorities, the pandemic is ongoing in Louisiana and calls for the implementation of measures to mitigate the risks of appearing in person to vote."

Dick made her ruling a week after hearing testimony and reviewing a sheaf of documents and expert opinions, pro and con, in the Harding v Edwards lawsuit. Dick’s decision likely will be appealed to the 5th U.S. Circuit Court of Appeals, based in New Orleans, though none of the defendants have said so yet. The election is in 47 days. 

Fearing that standing in line waiting to vote would become a super-spreader event, two Baton Rouge voters asked the federal court to stop Secretary of State Kyle Ardoin from using an emergency election plan that limited the use of mail-in ballots.

Judge Dick's ruling essentially resurrects Secretary of State Ardoin’s emergency protocols for the July 11 and Aug. 15 elections, which allowed voters to seek an absentee ballot if they were at a higher risk of severe illness from COVID-19 because of underlying medical conditions; were subject to a quarantine order; were experiencing symptoms of COVID-19 and seeking medical confirmation; or were caring for someone who was isolated because of the virus.

Democratic and moderate Republican legislators approved the plan for the primaries in July and August. But a number of Republican lawmakers warned Ardoin that they would not back a similar proposal for the Nov. 3 election.

Saying he drafted a plan for the November-December elections that would pass the GOP-majority Legislature, Ardoin rolled back those COVID-related absentee exceptions to only those voters who test positive for COVID-19 during a two-week window between the Oct. 20 beginning of early voting and Election Day. Otherwise, only those already covered by state law would be able to get an absentee mail ballot.

On a largely party-line vote, the Louisiana House approved, 62-32, Ardoin’s November-December emergency plan and the state Senate said yes, 27-11. The legislator’s ballots were delivered by mail.

State law requires that the governor also approve the emergency election plan, and Edwards did not. Edwards called Ardoin's protocols for the November-December elections "woefully inadequate" and contrary to the guidance of state and federal health officials.

Though named as the main defendant in the federal lawsuit, the Democratic governor sided with the Harding plaintiffs and asked Dick to reinstate Republican Ardoin’s emergency election plan for the July-August primary elections.

Jennifer Harding cares for her grandmother and her elderly parents, who have underlying conditions that make them more vulnerable to the deadly COVID-19. She wants a mail-in ballot to avoid the chance of picking up the coronavirus at her physically small polling location, then passing it along to her relatives. She qualified for a mail ballot during the emergency protocols in place for the July and August elections, but not under the plan proposed for the November and December elections. Jasmine Pogue has asthma and a history of upper respiratory infections that doesn’t qualify as a disability under existing state law’s Excuse Requirement to receive an absentee ballot. The social distancing requirements at her precinct were inadequately enforced in the July and August elections, she said.

The individual voters were joined by the Louisiana branch of the NAACP and the Power Coalition for Equity & Justice, a voter rights group. The Plaintiffs argued in Harding v Edwards that fear of catching the easy spreading COVID-19 would prevent a large number of voters from participating in the Nov. 3 election and the Dec. 5 runoff.

Ardoin and state Attorney General Jeff Landry countered that absentee balloting is a concession, not an absolute right and that no study has shown that in-person voting has led to a spike in infections.

"We have received and are currently reviewing Judge Dick's ruling," Ardoin said. "A decision as to how to proceed will be made after careful consideration of the facts is weighed with the fact that absentee voting is currently underway for some voters, and early voting is mere weeks away."

“I do hope the secretary of state will take the time to really look at it (the Court's ruling) and if he does, he will go forward with the election just as the court calls upon him to do so," Gov. John Bel Edwards said Wednesday on his radio program. “It was an appropriate decision, one absolutely required by the law and the facts.”

“The ongoing COVID-19 pandemic has many voters rightly worried about their ability to go to the polls this fall. But no one should be forced to make a choice between their health, or the health of their family, and their right to vote in any election,” Harding said in a prepared statement. “Thankfully, Judge Dick's ruling today provides alternatives for Louisiana voters, like me, to safely ensure that our voices are heard at the ballot box this fall.”

Ashley Shelton, executive director of the Power Coalition for Equity and Justice, noted that the decision “puts us more in line with the election rules that almost every other state has instituted in response to the pandemic.”

In addition to selecting the president, Louisiana voters also will be choosing a U.S. Senator, all six congressmen, two Public Service Commissioners, two Louisiana Supreme Court justices, a handful of state appellate court judges, all district judges and prosecutors, plus many local offices and several constitutional amendments.

Sherri Wharton Hadskey, who is Ardoin’s chief aide in charge of the 235 employees who do the hands-on work to put on elections, had testified last week that the vote count may not be completed by the end of the night on Nov. 3 because so many additional mail ballots already have been requested under existing law. State laws allows absentee voting to registered voters who are 65 years or older, people out of the parish on election day, or are disabled and have been accepted into the disabled program.

About 60,000 voters usually cast mail-in ballots under the state’s existing laws. But about 156,000 absentee mail ballots already have been requested, said Hadskey, who is commissioner of elections.

Hadskey expects 65% of the 2.9 million registered Louisiana voters will participate in November’s presidential election.

President Donald J. Trump has repeatedly said and tweeted he believes, presenting scant evidence, that the use of mail ballots leads to widespread fraud. Louisiana Republicans have repeated those claims in their stance against expanding the use of mail ballots because of the pandemic.

Secretary Ardoin has said that voter fraud “has not been widespread” in Louisiana and when it has occurred was in small, local races. A database maintained by the Heritage Foundation listed only four known cases of voter fraud in Louisiana, none of which involved absentee mail ballots and only one of which occurred after 2005.

Judge Dick noted that the fear of fraud “presented no grave threat” when legislators and Gov. Edwards approved Ardoin’s emergency plan for the July-August elections.

“The Court is not persuaded by Defendants’ conclusory assertion that their interest in preventing voter fraud – which Defendant Secretary Ardoin testified only four months ago is ‘a rare occurrence’ – is weighty enough to justify their roll back of COVID-19-specific allowances for mail voting,” wrote Dick, who was nominated by President Barack Obama and assumed the federal bench in January 2013. "The line that has been drawn by Defendants is not a rational one, and their assertion of its necessity is directly contradicted by the fact that, for an election conducted one month ago, these same state officials did not, apparently, feel that maintaining the strict statutory Excuse Requirement was necessary to avert voter fraud."

Judge Dick's decision in a nutshell

EARLY VOTING

• The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early voting for the Nov. 3 Presidential General and Open Congressional Primary Election to 13 days.

• The Court GRANTS more limited injunctive relief as to early voting and shall order that the period of early voting for the Nov. 3 election be increased to a 10-day period which shall run from Friday, Oct.16 to Tuesday, Oct. 27, (excluding Sunday, October 17 and Sunday, October 25), from 8:00 a.m. to 7:00 p.m. each day.

• The Court DENIES Plaintiffs’ Motion for injunctive relief to increase the period of early voting for the Dec. 5 runoff.

VOTE-BY-MAIL

• The Court DENIES the Plaintiffs’ Motion for injunctive relief to enjoin entirely the operation of the Excuse Requirement set forth in Louisiana Revised Statute §18:1303.

• The Court GRANTS Plaintiffs’ alternative Motion for injunctive relief to make available the COVID-19 Ballot Application that was used during the July and August elections and to supply absentee by mail ballots to voters who validly request absentee ballots via COVID-19 Ballot Application in both the Nov. 3 and the Dec. 5 elections.

Email Mark Ballard at mballard@theadvocate.com.