Voting in an Era of Crisis

"The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.” —Justice Ruth Bader Ginsburg, dissenting in RNC v. DNC, 589 U.S. ___ (2020) (Slip Op. at 6)

"In the midst of this crisis, we must also remember to protect the foundation of our democracy by ensuring that every eligible American can safely cast a ballot in the upcoming elections. The coronavirus should not stop our citizens from casting their ballots.” —Senators Amy Klobuchar (D-MN) and Ron Wyden (D-OR), Washington Post, March 16, 2020

The legal wrangling over whether—and how—to conduct the April 7, 2020, election in Wisconsin underscores a deeper battle shaping up for November’s general election, specifically how the franchise can be guaranteed in an era of a crisis. The deadly pandemic sweeping the globe has killed over 100,000 people in the United States (and over 240,000 globally) as of the beginning of June, required unprecedented levels of self-quarantine, plunged global markets, and created uncertainly and fear. There is still time, however, to prevent COVID-19 from claiming another victim: our American democracy.

The pictures will remain seared into our collective memories: senior citizens standing six feet apart with masks, sometimes for hours, and young voters holding up protest signs while in line. A video of voters in a predominantly African American community waiting. In masks. In hail and horrible weather. All of this to exercise the fundamental—and precious—right to vote.

The voter suppression experienced in April did not begin—and will not end—with the Wisconsin election. As if it is not enough that a pandemic could make in-person voting hazardous and an impossibility to some, federal and state policymakers using the pandemic to further restrict the vote is unconscionable. With the November general election approaching, it is vital to understand both the challenges that we face as a nation and the options that lawmakers are considering to ensure that the franchise is available to all eligible to exercise their right to vote.

Voting Post-Shelby

In Wisconsin, stories quickly circulated that due to COVID-19, the amount of polling places in Milwaukee—which is largely Democratic and contains a sizable African American community—dropped from 180 to just 5. It is logical to deduce that reducing the amount of polling places increases the amount of time it would take to vote. In other words, longer lines.

Yet, while much of the nation struggled with understanding why this would happen, observers of elections saw a familiar pattern. For decades prior to 2009, under the Voting Rights Act of 1965, certain covered jurisdictions were required to preclear certain changes to their elections with the Department of Justice. This preclearance (under Section 5) was a cornerstone of the act.

Yet, the 5–4 decision in Shelby County v. Holder in 2009 rendered this preclearance basically useless after holding that the formula to determine which jurisdictions were covered was unconstitutional. The U.S. Supreme Court questioned the need for such a federal intrusion in states’ activities. Part of the Court’s rationale was that the country had moved past the era of Jim Crow and past the era of voter suppression, and therefore the formula needed to be updated. Refuting the majority’s belief that preclearance would no longer be necessary, Justice Ruth Bader Ginsburg stated in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” 

As a result of jurisdictions (state and local) no longer being required to preclear election and voting related changes, voters saw massive—and immediate—changes. A September 2019 study by the Leadership Conference on Civil and Human Rights found that from 2012 to 2018 there were 1,688 polling place closures in the jurisdictions previously covered by Section 5 of the act.

But polling place closures were not the only restrictive measures jurisdictions implemented since Shelby: Photo ID and proof of citizenship requirements, reduction of early voting periods, voter registration hurdles, and voter purges all occurred with greater frequency and without a federal check. In her powerful book, One Person, No Vote, Carol Anderson documents both historical and current disenfranchisement in great detail (including prior efforts to restrict the right to vote in Wisconsin), and places the state of voting in America in 2018 in context, stating plainly: “In short, we’re in trouble.”

And that was before COVID-19.

Election(s) in a time of Pandemic

In January and February 2020, when the democratic primary process was in full swing, the COVID-19 pandemic began to spread. The virus’s impact on America has been brutal, and its disproportionate impact on African Americans and communities of color has further exposed racial inequities in our health system. For instance, as of April 21, official numbers from Washington, D.C., revealed that 80 percent of coronavirus deaths were African Americans. That figure is horribly out of proportion to the population numbers, where African Americans make up 46 percent of D.C. residents.

An additional consequence of COVID-19 has been how both voter registration and elections are conducted throughout the country. Voter registration drives have been significantly disrupted. Registration locations, such as state Departments of Motor Vehicles (allowed under the National Voter Registration Act, or the “Motor Voter Act”), are closed, and large gatherings that prove to be good opportunities for third-party groups to register voters just do not exist in this period of “social distancing.” And while online voter registration does allow for an additional possibility, accessibility to that option is subject to socioeconomic factors and can prove to be difficult for those with disabilities or language barriers. It has been reported that as a result of the overall lack of registration options, millions could be prevented from registering and therefore voting in November’s election.

While many states decided to postpone their elections citing the public health risk, other states, most notably Wisconsin, went ahead with voting. Looking back, the risks were not overblown or exaggerated. On April 13, it was reported that a poll worker in Chicago during Illinois’s March 17 election died of the coronavirus. Intense partisan battles preceded the April 7 Wisconsin election with both the date and the method of voting in question.

One lawsuit was related to the Wisconsin governor’s authority to postpone the election, which the Wisconsin Supreme Court held did not exist. The other track was related to the distribution and acceptance of absentee ballots. Once it became clear that voting in person could prove to be harmful to public health, many Wisconsin residents requested absentee ballots. Yet, many did not receive those ballots in a timely fashion (or at all), and for those who did, the requirement that they be returned by Election Day placed a heavy burden on voters.

In a preliminary injunction by the Democratic National Committee, the district court crafted a remedy that allowed for voters to request absentee ballots one day, from April 2 to April 3. The court also mandated that those ballots must be accepted if received by election officials by April 13 at 4:00 p.m., regardless of the date of the postmark. The Republican National Committee appealed to the Court of Appeals for the Seventh Circuit, which declined to change the district court’s deadline. It then sought a partial stay of the preliminary injunction from the U.S. Supreme Court.

In a brief, yet contentious 5–4 decision, the Court rejected the ability for voters to mail back their ballots after April 7. The majority, in a per curiam opinion, labeled the question before it as a “narrow, technical question about the absentee process” and claimed that allowing voters to return ballots for up to six days after Election Day “fundamentally alters the nature of the election.” After spending a significant amount of time attacking the dissent, the Court then ultimately stated that only those ballots postmarked by April 7 and received by April 13 at 4:00 p.m. (or hand-delivered by April 7 at 8:00 p.m.) would be counted.

Justice Ginsburg, in dissent, acknowledged the public health crisis and the burden that it placed on election officials in Wisconsin. She stated that “Rising concern about the COVID-19 pandemic has caused a late surge in absentee-ballot requests.” The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” “boggles the mind.” The dissent, analogizing to the fact that voters in line when the polls closed still had the ability to vote even after Election Day has ended, argued that those voters in line to receive an absentee ballot after Election Day has ended should similarly still have the ability to vote. “While I do not doubt the good faith of my colleagues,” Justice Ginsburg wrote, “the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not yet received.”

The Court’s opinion created an outcry. Professor Rick Hasen, the Chancellor’s Professor of Law and Political Science at the University of California, Irvine, called the majority’s opinion “sloppy” and called the “cavalier nature” of the opinion “troubling” in an April 10 ElectionLawBlog post, and Adam Liptak of the New York Times wrote a piece entitled “Rulings on Wisconsin Election Raise Questions About Judicial Partisanship.” Sherrilyn Ifill, director-counsel of the NAACP Legal Defense and Educational Fund, Inc., was quoted in the National Law Journal as saying: “It is unconscionable. It is among the most cynical decisions I have read from the Court—devoid of even the pretense of engaging with the reality that this decision will mean one of two things for many WI voters: either they will risk their health & lives to vote, or they will be disenfranchised.” Others became more concerned about the role of the Supreme Court on election issues in the future. In the Atlantic, University of Michigan Professor of Law Leah Litman wrote that “the Court’s decision is an ominous harbinger for what the Court might allow in November in the general election.”

A sad postscript was revealed on April 21, when NBC News reported that numerous coronavirus cases were linked to in-person voting. Six voters and one poll worker in Milwaukee all “appear to have contracted the coronavirus through activities related to the April 7 election in Wisconsin,” Milwaukee’s health commissioner Jeanette Kowalik said. Later reports increased this number to 19 cases.

Preventing Wisconsin from Happening Again

Wisconsin is one of 34 states (plus the District of Columbia) that do not require an excuse to vote absentee, according to information gathered by the National Conference of State Legislatures. While that may seem like it would cover a significant amount of the population, just because a state has a guaranteed no-excuse absentee ballot procedure does not mean there aren’t restrictions that could make the process difficult for many.

Additionally, five states—Colorado, Hawaii, Oregon, Utah, and Washington—are considered “universal vote-by-mail” states, meaning their entire elections are conducted through mail-in ballots. Generally, these states are also referred to as “vote at home” states because many drop their ballots off at a designated secure center as opposed to dropping them in the mail. One of these universal vote-by-mail/vote-at-home states is Colorado. Recently, former Governor John Hickenlooper, in the Washington Post, described the process that has been in place for six years, including its bipartisan support. In Colorado, each eligible voter receives a ballot around three weeks before Election Day and then can mail it back or drop it off at a secure center. Unlike Oregon, which conducts its election completely by mail, Colorado (and Washington) still allow voters to vote on Election Day if they surrender the vote-at-home ballots.

States that utilize universal vote-by-mail, however, are in the significant minority. Other states that have an absentee ballot process can generally be divided into those that require voters to provide an excuse to vote absentee and those that do not. Already, we have seen two states—New Hampshire and New York—attempt to loosen their “excuse” requirements by expressly providing for absentee ballots for anyone eligible due to COVD-19. At bare minimum, other states should follow.

Moving all states to a “no-excuse” absentee balloting process for the November election would smooth the voting process. This would not be inexpensive or easy, but it is a necessity. In the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which became law on March 27, 2020, Congress appropriated $400 million to the states that could be used to implement a vote-by-mail process. Many experts recognize that while this money will be helpful, at least $2 billion will be required to fully fund no-excuse absentee voting in all states.

A vote-by-mail process for the 2020 general election, which would build off a no-excuse absentee ballot system, would still need significant guardrails to ensure the franchise is available to all eligible voters. Applications should be proactively provided by the state, and online applications should be made available. Postage for application return and ballot return should be paid for by the state and not by the voter. A robust tracking system needs to be implemented so voters and state officials are able to ensure that the ballots are sent and returned without interference, and that such votes are counted.

Additionally, requirements that may currently be included in states’ absentee ballot processing should be reformed to favor the voters during these difficult times. For instance, states that require notary or witness requirements simply do not work in an era of social distancing and self-quarantining. Certain identification and signature match requirements may lead to disenfranchisement if there is no viable way to cure any alleged discrepancies.

One of the biggest steps to ensure voter access is a requirement that any ballot postmarked by Election Day will be counted, regardless of the day it is received by the local jurisdiction. States that require receipt of ballots by Election Day have the tendency to severely disenfranchise voters, as many factors outside voters’ control can delay and prevent the ballot from being returned by that day. For instance, a backlog in processing absentee ballot delivery or stress on United States Postal Service (USPS) resources could prevent a ballot from being counted when the voter did everything correctly. In the Supreme Court’s opinion in RNC v. DNC, the Court appeared to endorse the position that any ballot postmarked by Election Day must be counted.

As mentioned above, on the federal level, there have been congressional efforts to both increase funding for states (to at least that $2 billion amount), and to place mandates on these states to implement some of these changes. For instance, Senators Amy Klobuchar (D-MN) and Ron Wyden (D-OR) introduced the Natural Disaster Emergency Ballot Act of 2020, and Senator Kamala Harris (D-CA) announced the VoteSafe Act. On the House side, Speaker Nancy Pelosi (D-CA) proposed $4 billion in funding and included numerous vote-by-mail-related measures in her version of the third phase of COVID-19 relief. In addition, members of Congress were seeking to remove the 20 percent match requirement placed on the states in order to access the $400 million in the CARES Act.

At the time of this article’s publication, Congress was debating the fourth phase of COVID-19 relief and the final outcome of both federal funding and any federal mandates were yet to be determined. Part of this debate includes efforts to make sure the USPS has the resources it needs to not just operate, but to handle increased usage around election season.

While considering the various efforts to increase vote-by-mail access, policymakers must recognize that vote-by-mail is not the entire solution for all communities. On April 13, the Leadership Conference on Civil and Human Rights wrote to Congress explaining that while Congress should provide at least $4 billion to prepare for the 2020 elections, additional measures should also be implemented, including expanded registration options, extended early in-person voting, voter education, and “prohibition of polling place adjustments that disproportionately impact vulnerable populations.” The Leadership Conference explained that vote-by-mail is “necessary but insufficient alone to safeguard our election” and discussed some of the obstacles and limitations of vote-by-mail for Native American voters, communities of color, and people with disabilities.

Despite the various arguments made that vote-by-mail would lead to a partisan advantage, studies have proven this to be incorrect. Recently, Stanford University’s Democracy & Polarization Lab published a study entitled “The Neutral Partisan Effects of Vote-by-Mail: Evidence from County-Level Rollouts.” The study concluded that vote-by-mail does not appear to either “affect either party’s share of turnout” or “increase either party’s voter share.”

Finally, those who have raised the specter of voter fraud to cast doubt on the legitimacy of elections create fear in the mind of the American public, or to support various restrictions on voter access have taken the same approach to vote-by-mail. Instances of voter fraud, including vote-by-mail fraud, are “exceedingly rare” according to experts, including Amber McReynolds and Charles Stewart III, who describe that the occurrences amount to 0.00006 percent of total votes cast by mail. Washington Secretary of State Kim Wyman—a Republican—has publicly supported her state’s vote-by-mail system, and on an April 10 call with bipartisan election officials, and according to an AP report, stated that it is “‘disappointing when anyone in leadership’ makes fraud claims. . . . ‘When it happens, the public loses confidence in the foundational pillar of our system.’”

Protecting the Health of Our Democracy

In 2020, our public health has come under attack by COVID-19. At minimum, the novel coronavirus has disrupted our daily life, and, in some cases, it may have taken a friend, colleague, or loved one. The pandemic has also taken a toll on our democracy—forcing elections to change dates and forms. Ben Franklin famously said, “a republic, if you can keep it.” For us to keep our republic, we must keep our democracy healthy. And the health of our democracy should not come at the expense of the health of our people. Steps to guarantee the franchise—such as nationwide vote-by-mail with the correct safeguards—could allow us to protect both the health of our fellow citizens and the overall health of our democracy.

The opinions expressed here do not reflect the opinions of Steptoe & Johnson LLP or its clients.

Jason A. Abel is special counsel to the Section of Civil Rights and Social Justice and former chair of the Section’s Civil Rights and Equal Opportunity Committee. He is a partner at Steptoe & Johnson LLP, where he chairs the firm’s Campaign Finance and Political Law practice, teaches Election Law at the University of Pennsylvania Carey Law School, and both Campaign Finance Law and Congressional Procedure at George Washington University Law School.