By Ryan McCarthy and Jack Gillum, Nation of Change, August 26, 2020
This article is part of Electionland, ProPublica’s collaborative reporting project covering problems that prevent eligible voters from casting their ballots during the 2020 elections. Sign up to receive our biggest stories as soon as they’re published.
Walter Hutchins cast his first vote for president for Dwight D. Eisenhower in 1952, and he has voted in every election since. The last thing he wants is for his “68-year streak,” as he proudly calls it, to end in November.
An industrial engineer, Hutchins helped design the M16, the weapon of choice for American soldiers during the Vietnam War, and he invented several tools that may be currently sitting in your garage. He and his wife, Margaret, a teacher and ordained Episcopal minister whom he married the year after he voted for Ike, were “executive gypsies,” she said. They followed his jobs from Connecticut to Florida, New York and Wisconsin, until they retired to North Carolina. Wherever they were, they always voted — in fire stations, churches, their retirement community. When Walter became blind and hard of hearing, Margaret helped him in the voting booth.
This year, what stumped Hutchins, despite all his resourcefulness, was how he was going to exercise his basic constitutional right to vote during a pandemic. The Davis Community nursing home in Wilmington, North Carolina, where Hutchins has lived for two years, has barred visitors since March. Margaret, still in the retirement community nearby, can’t help him, nor can their four kids and eight grandchildren.
Neither can the nursing home staff. A 2013 state law prohibits staff at hospitals, clinics, nursing homes and rest homes from helping residents with their ballots. Some North Carolina counties, including New Hanover, where Wilmington is located, send teams into nursing homes to assist voters or bring them to polling places, but the threat of the coronavirus has limited that service as well.
As the pandemic worsened, he and Margaret began to consider a more drastic measure to keep his streak intact. “It makes me angry that something like this could happen and that we’d be denied the right to vote just because of our age and condition,” she said.
How to vote during a pandemic poses a dilemma for many Americans, who worry about the health risks of voting in person and whether the U.S. Postal Service will be able to deliver mail-in ballots on time. Such concerns are multiplied for nursing home residents.
Most, though not all, of the roughly 2.2 million Americans living in nursing homes or assisted living communities are elderly — and thus at higher risk of dying from the coronavirus. They’re also part of the most politically engaged demographic in the country. In 2018, 66% of Americans over 65 voted, compared with just 35% of those 18 to 29. In 2016, Donald Trump had an advantage over Hillary Clinton among voters 65 and older by 53% to 44%, according to the Pew Research Center.
At least 68,000 residents and staff of nursing homes and other long-term care facilities have died of COVID-19 since the pandemic outbreak began, some 41% of all coronavirus deaths in the U.S., according to a New York Times analysis. This ongoing crisis at care facilities across the country has had a troubling hidden effect: the looming mass disenfranchisement of America’s elderly and disabled. Hutchins is one of hundreds of thousands of residents of nursing homes and assisted living communities who may not be not able to vote this year because of coronavirus related-lockdowns and the failure of state and county officials to help a forgotten population of voters.
Family and friends who helped them vote in prior elections can’t visit them — and may have taken ill or died from COVID-19 themselves. Swing states such as Florida and Wisconsin have suspended efforts to send teams to nursing homes to assist with voting. Despite a federal law that residents must be “supported by the facility in the exercise of” their rights, two states — North Carolina and Louisiana — prohibit staff from actively doing so. While many other states allow voters to appoint a helper of their choice, voting assistance may be a low priority for understaffed institutions struggling with COVID-19 outbreaks. And polling places are being moved from nursing homes and assisted living facilities to sites less affected by the virus. For example, Somerville, Massachusetts, relocated voting from a nursing home to a school a little less than a mile away.
“The hurdles are so high for people that are living in long-term care facilities — people who don’t have access to or who need different levels of help,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy group. “I really think disenfranchising that entire population — we’re in real danger of that at this point.”
Under federal law, nursing homes have a duty to facilitate residents’ rights, including voting, said Nina Kohn, a distinguished scholar in elder law at Yale University. But even before the pandemic, compliance was spotty. From 2018 through 2019, Medicare documented complaints from at least 55 U.S. nursing homes in which residents said they weren’t given the opportunity to vote or were unable to get help casting a ballot. But nursing home inspectors categorized the vast majority of these complaints as low severity, meaning they were seen as inflicting little or no actual harm.
As a result, fines for violating residents’ voting rights are rare. Nursing home inspectors, Kohn said, do not take such violations seriously. “What you have is a system where the deprivation of our fundamental civil liberties never arises as being classified as real harm,” she said. “You’ve got a whole category of violations where there are virtually no consequences.”
Some nursing homes have begun adjusting procedures ahead of Nov. 3. Chris Hannon, the chief operating officer of Pointe Group Care, a nursing home operator in Massachusetts, said his staff is working to ensure residents are mailed absentee ballots. Although he hasn’t seen problems, “it becomes as challenging of a job as any other responsibility that we have,” he said.
Many nursing home residents have some degree of mental impairment — nearly half of long-term care patients suffer from dementia or Alzheimer’s. But those afflictions do not mean residents automatically lose their right to vote — competency requirements vary from state to state — and advocates say that nursing home staff often make arbitrary judgments about who can vote. More egregiously, some residents are not informed of their voting rights.
Other residents are as mentally sharp as ever — yet still may not be able to vote this year. Jay Leavitt jokingly refers to himself as a “sort of a disaster case,” a phrase that wildly undersells his productivity. A former Fulbright scholar, with a doctorate in applied mathematics, Leavitt used to run the academic computing program at the University at Buffalo. He’s 84 and is a quadrapelgic, but he’s still publishing research; his current project examines how natural resource levels affected prehistoric migratory patterns.
“I’m sort of blessed. Even though I’m a quad, my mental activities haven’t decreased. As a matter of fact, they’re probably increasing,” Leavitt said.
He normally stays in a nursing home in Hendersonville, North Carolina. But this summer he was transferred to the River Falls Rehabilitation and Healthcare Center in Slater-Marietta, South Carolina, for treatment of a wound.
Over the years, he’s voted in person or by mail, and he has helped other nursing home residents fill out their ballots. He’s even grilled local candidates about conditions in North Carolina nursing homes. Because of his disability, he can’t mark a ballot himself. His wife used to help him. But she isn’t allowed to visit him, and she is in the early stages of dementia, he said.
He’s succeeded in getting a North Carolina absentee ballot form, but he’s not sure where to send it, or how to fulfill the requirement for a witness. The River Falls staff has not discussed voting with him or offered assistance to anyone he knows, he said.
“I’m certainly very concerned” about voting, Leavitt said. “I haven’t seen anything done in this nursing home.”
After ProPublica asked about Leavitt’s experience, a River Falls spokesperson said it would provide him with any voting help he needs. The facility held a cookout in early July to register residents to vote, the spokesperson said.
“We’ve made it a top priority to help our staff and residents get involved in the electoral process and exercise their right to vote,” River Falls administrator Tkeyah Brunson said. “Just as we have worked hard to help residents communicate remotely with friends and family, we want to help our residents enjoy their normal freedoms and quality of life during these difficult times, including the ability to participate in our democracy.”
Before the pandemic, recognizing the barriers that elderly and disabled voters in institutions already faced, almost half of states offered some form of assistance. Florida’s program was typical. A trained bipartisan team appointed by the election supervisor would travel to residential care facilities and help residents fill out absentee ballots. The service was provided to any facility that had at least five people interested in voting and submitted a request at least three weeks prior to an election.
This year, Florida’s program has been suspended, leaving thousands without help in a swing state with one of the largest elderly populations. A similar program in Wisconsin, where “special voting deputies” visited nursing homes, has also been curtailed.
Karen Lee Weidig, who served as a special voting deputy in Madison, Wisconsin, for more than a decade, said she was “stunned and disappointed” that the program is not being offered this year. “The people to whom we present ballots very much want to vote, it’s a big part of their civic life,” she said. “It might be the only part of their civic life.”
Some election officials in Wisconsin are trying to adjust the rules on the fly, according to internal emails obtained by ProPublica. “The assistant for the ballot cannot be an employee of the care facility,” stated part of a July presentation by Madison’s elections clerk. Soon after, an elections official indicated those rules had been relaxed following questions from a local nursing home: “Since the ballot is being mailed and SVDs are not present, the voter can designate ANYONE to help them mark their ballot (including facility staff and administrators).”
In North Carolina, individual counties decide whether to send what are known as multipartisan assistance teams (MATs). They have traditionally been funded by county resources and depend on volunteers. On Aug. 1, the state Department of Health and Human Services released guidance that “strongly encouraged” that those teams visit residents outdoors, no more than two residents at a time, and maintain 6 feet of social distance.
Officials in North Carolina counties that still plan to provide MATs told ProPublica that they will follow this guidance. But people familiar with the process said that the guidelines, though appropriate during the pandemic, will make it much harder. For one thing, not every voter is healthy enough to be outside. When North Carolina’s League of Women Voters ran an informal precursor to those teams, volunteers had to go room to room, sometimes waking residents from naps, said Vice President Marian Lewin.
Even in normal times, MATs leave voters out, Lewin said. “You’re doing this out of the good of your heart,” she said. “If the teams exist,” they may consist of five or 10 volunteers for an entire county. “By their very nature, they’re inadequate.”
Martha Roblee, 67, is a resident of the assisted living section of Scotia Village, a community care facility in Laurinburg, North Carolina. Through her work with the League of Women Voters, Roblee has been helping to educate voters at Scotia, but there are people she isn’t allowed to reach in the skilled nursing wing. “They’ve been voting for decades. Who’s going to help these people?” Roblee said.
One resident of an assisted living facility in southeastern North Carolina said she has helped other people there vote in prior elections. The woman, who suffers from a crippling genetic condition, said some of her “dearest friends” in the facility have died from COVID-19. Almost every day, she has a socially distanced lunch with her boyfriend of 15 years in the facility’s lobby, where they’re separated by tempered glass. “I have a rocking chair. He has a rocking chair,” said the woman, who requested anonymity. “He brings Big Macs and he gets on his cellphone. I get on my cellphone on speaker, and we just eat and jabber.”
Helping the elderly and disabled to vote will be very challenging in the pandemic, especially if MATs aren’t available, she said. “How would you do it?” she said. “How would you walk a senior citizen or a person with a disability through marking their legal ballot so that you knew the vote they wanted to cast was theirs? It would be a difficult thing. You would have to get into their chair and think like they do, and look at that ballot through their eyes.”
Even if state law were to allow it, she said, the staff don’t have time to help with voting. “They’re juggling all kinds of things trying to keep us from going crazy,” she said. “To put something else on them? No.” So far, she said, the facility has not even discussed voting: “We’re hard put to get our Pepsi machine filled.”
In June, to help relieve the boredom of life under a lockdown, Phoenix Assisted Care in Cary, North Carolina, posted residents’ pictures on Facebook. Each resident held a sign describing their interests and asking for pen pals from across the country. (“I like women, wrestling, eating out,” one man’s sign read.) Donna Horton, an administrator there, said that the response was “hogwild”; the posts went viral and were picked up by national news organizations. Since then, residents have received more than 110,000 letters and hundreds of packages.
But Phoenix hasn’t come up with a similar innovation to enable residents to vote. In past years, about 40 have voted, usually in person, Horton said. This year she isn’t sure what her facility will do, or if MATs will be enough.
“My fear is taking them somewhere that is going to expose them,” Horton said. “This is a senior population. It’s not gonna take but one person, and it’s gonna spread. I’ve been doing this for 20 years. This is really tough. No one is seeing their family, you can’t vote. It’s beyond something I ever thought I’d witness.”
This spring, a friend of Margaret Hutchins at the local League of Women Voters chapter asked her if Walter would be interested in joining a lawsuit challenging North Carolina’s vote by mail restrictions and ballot accessibility laws. “I thought that he’d be willing, and that I better call him and ask him,” Margaret said.
Hutchins agreed. He signed up as a plaintiff, along with the league; Democracy North Carolina, a nonpartisan nonprofit; and several voters who were either elderly, disabled or at high risk of contracting COVID-19. Hutchins was the only plaintiff confined to a nursing home.
Walter and Margaret’s son, Jim Hutchins, 54, a correctional officer in Idaho, said he wasn’t surprised that his dad got involved in the case. Walter was “always very active in exercising his rights,” Jim said. “Dad was a lifelong Republican. Mom was a Democrat, so they always canceled each other out.” Today, Walter and Margaret are registered Independents; they declined to say whom they would support in November.
In the suit, Hutchins’ lawyers argued that the state was violating his rights by barring staff from helping him with his ballot. The case also sought broader changes to make voting easier in North Carolina.
Conservative legal groups intervened to oppose the lawsuit. Committees for the Republican Senatorial and Congressional campaigns filed motions in the case, arguing that election rules, including the staff prohibition, should not be changed. The Public Interest Legal Foundation, a right-wing think tank that has long pushed exaggerated claims of voter fraud, filed an amicus brief for the defense, asking the court to consider its research on inaccuracies in the state’s voter rolls.
The state and county boards contended that Hutchins had not yet been deprived of the right to vote. His facility, for example, might not be locked down by the election. They also argued that MATs could help Hutchins with his ballot, though the state had not yet released its guidance.
Emails submitted as evidence in the case, though, showed that Hutchins and other nursing home residents might not be able to rely on MAT, and that at least two counties did not have teams. “It may be difficult to find a team of bipartisan volunteers to serve, and the MAT program has no funding allocated to it by the legislature,” Katelyn Love, the North Carolina Board of Elections’ general counsel, had written to a disability rights group. “If a MAT team is unavailable, another person may assist a voter in a nursing home or other facility provided that the person is not disqualified. Nursing home owners, managers, and employees, may not assist.”
Hilary Harris Klein, a lawyer for Hutchins at the Southern Coalition for Social Justice, told ProPublica that the law prohibiting employee assistance trampled Hutchins’ rights. “He trusts these people and wants them to help,” she said. “The government is denying his choice by enforcing this ban on staff assistance.”
In August, a federal judge in Greensboro, North Carolina, found that the state had violated Hutchins’ rights, but only his. Staff at Davis Community could help Hutchins with his ballot, but no one else there or in the rest of the state could receive assistance from nursing home workers.
Which is to say, Walter Hutchins won a remarkable legal victory that was also remarkably limited.
The North Carolina Board of Elections declined to comment on the lawsuit. But Patrick Gannon, a public information officer for the board, said that in March the board “recommended that the prohibition on facility employees be temporarily lifted during the pandemic.” North Carolina’s Republican-dominated legislature declined to lift the ban.
Gannon also said that this summer, for the first time, state funding had been allocated to help recruit and train MAT teams. In a March letter to the governor and state legislators, Karen Brinson Bell, the board’s executive director, noted that MAT teams may not be able to reach some facilities.
Davis Community did not respond to multiple requests for comment, including how it will help Hutchins vote in his 18th consecutive presidential election.
Klein said she was disappointed by the narrow ruling. “The court acknowledges that a lot of people are in this situation. So we would have hoped that it would have applied to more people, but that doesn’t mean the state can’t do anything about this.” Calling the judge’s decision “clearly erroneous” and arguing that it will lead to “manifest injustice,” Hutchins’ lawyers filed a motion this month asking the court to let all North Carolina nursing home residents who need assistance with their ballots get help from facility staff.
For Walter, the decision was a welcome, if limited, victory. “I’m a very patriotic guy,” he said in an email. “I love this country. And the right to vote is a very important thing to me. I’m very, very pleased to have participated in this lawsuit. But there are others who are in nursing homes in North Carolina who need help in voting too. They should be able to have nursing staff help them as well.”