Open Letter

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

June 28, 2021

May 13, 2020

Editorial credit: Michael Gordon /

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. 

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