Current Issues in Voting

This being an election year, Human Rights magazine is devoting two full issues to voting rights. The first included articles on voter registration, problems facing Native American voters, voter roll purges, the centennial of the Nineteenth Amendment, and racial gerrymandering. This volume features articles on redistricting, voting by disabled persons, voting on college campuses, cybersecurity, campaign finance, and many others. Together, these two issues of Human Rights provide a great tutorial on current issues in voting rights and election administration—subjects that have gained widespread public attention in recent years. Since our first issue on voting rights, a new challenge has emerged: how to conduct elections in the midst of a public health emergency.

The first sign of trouble was on March 13, when Louisiana postponed its April 4 primary. Since then, 17 other states and Puerto Rico have postponed or otherwise changed their primaries. New York has even canceled its presidential primary. Unlike other emergencies that have occasionally gotten in the way of elections, the coronavirus pandemic dictates that people stay away from each other. When a pipe bursts in a polling place, they relocate the polling place and inform the public. When Hurricane Sandy hit one week before the 2012 presidential election, officials in affected states along the East Coast devised a number of alternatives to the usual election procedures: immediately allowing early voting before evacuation; relocating polling places; allowing voting by fax or email; or permitting provisional ballots to be submitted at any polling place. Still, there was a lot of confusion, and turnout was lower than usual—though not as low as expected after the storm. Some of these options are not as good as others, to be sure—voting by email is almost universally decried as an insecure method for casting a ballot. But if nothing else, the experience of Hurricane Sandy prompted a lot of states to come up with contingency plans for emergencies. Most likely, none of them anticipated what we’re facing now.

This year, it is the very act of voting at a polling location that is impractical and, in fact, dangerous. In the worst-case scenario—if preventive and containment measures are in effect throughout the fall—November’s voting procedure must provide for “social distancing,” which is impossible at a polling place. Many voting rights advocates have long pushed for “convenience voting” as a way to increase participation and broaden the franchise. Their argument has nothing to do with emergencies. The concept of convenience voting includes early voting, weekend voting, same-day registration, an Election Day holiday, voting by mail, and no-excuse absentee voting. Five states require voting by mail (Colorado, Hawaii, Oregon, Utah, and Washington). Every state permits a type of voting by mail, an absentee ballot, but 16 states require an excuse to cast one. (Virginia changed its law recently; New Hampshire is allowing no-excuse absentee for the 2020 election.) Permissible excuses vary from state to state, but they are usually limited to absence from the jurisdiction or advanced age, disability, or illness.

In an emergency, governments must be flexible and creative. The time is short to make radical changes in voting systems. States that don’t have voting by mail will be loath to institute it, even for one election. But the time is perfect to improvise on a system that already exists—absentee voting. For states where there is no requirement of an excuse, no modification is necessary. For states that require an excuse, here’s an easy solution: By executive order or emergency legislation, make the coronavirus a per se excuse! The only additional burden on election systems, in either case, is sending out absentee ballots to every registered voter and setting up a process for counting them. It’s possible that voter “turnout” will suffer, but vote-by-mail states haven’t had that experience. Their participation rates are unusually high.

In the almost 250-year history of the United States of America, no presidential election has ever been postponed, much less canceled. Primaries have been postponed, as is happening now. But, and this bears repeating, no general federal election has ever been postponed or canceled, not during weather emergencies, two World Wars, or the Civil War. There is no reason that this iconic, uninterrupted exercise of our democratic values should be interrupted now.

Estelle H. Rogers was a voting rights lawyer and legislative advocate for 10 years of her public interest career. She currently chairs the ABA Standing Committee on Election Law and is one of the ABA Section of Civil Rights and Social Justice’s delegates to the ABA House of Delegates.