You’ve Got Mail: Voting in a Pandemic

Susan Sullivan Lagon | June 3, 2020

The pandemic has disrupted many things, including voting, the practice of democracy itself. As state primaries go by and the country gears up for November, some states are more ready for mail-in voting than others. Meanwhile, false claims have been circulated about mail-in voting having a partisan advantage (it doesn’t) or being prone to fraud (it isn’t).    Efforts to limit voting by mail raise serious health concerns, and efforts to delegitimize an election are dire for the health of our body politic. What unfolds on this issue is of paramount importance to the very heart of our democracy.

Wisconsin: An Early Warning Sign

Public health, emergency powers, voting rights, election integrity, and partisan politics collided in spectacular fashion over Wisconsin’s primary election this spring. Events proceeded quickly.  Governor Tony Evers, a Democrat, tried to postpone the primary from April 7 to June 9. The Republican legislature and elected state Supreme Court said no. Democrats appealed to U.S. District Judge William Conley, who said no to delaying the election on such short notice but yes to extending the date for mail-in ballots to be received from April 7 to the 13th as Democratic counsel requested. Republicans asked the U.S. Court of Appeals for the 7th Circuit for a stay, which was denied. An urgent appeal to the U.S. Supreme Court followed, resulting in an election eve 5:4 decision granting the stay and adding that only ballots postmarked by April 7 would be counted.

Chaos ensued. Many voters mistakenly believed they had until the 13th to cast their ballots while others defied Wisconsin’s stay-at-home order to go to the polls April 7, masked and socially distanced. Milwaukee’s 180 polling places shrank to just five. Dozens of poll workers and voters tested positive for Covid-19 after the election.

As often happens with requests for emergency stays, the Court’s majority decision was per curiam (for the Court) but the four justices in the minority were all too happy to affix their names to Justice Ginsburg’s dissent, which saw the potential for “massive disenfranchisement” in the majority’s ruling. Justice Brett Kavanaugh oversees the 7th Circuit and may well have written the decision. In any case, he has joined with Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch in a coalition that has endured on voting rights cases since the Shelby County voting rights decision in 2013.

Why does RNC v. DNC matter?

The upshot of the Wisconsin fiasco and the U.S. Supreme Court’s ruling is that the postmark may be to 2020 what the hanging chad was to the election of 2000.  What if just the month and not the date were visible on the postmark, or envelopes arrive with no postmark at all? Will they be discarded like they were in Wisconsin? On the recently launched website Republicans were quick to chime in that “any system that allows late-arriving ballots is ripe for weeks of prolonged litigation, which undermines the confidence and legitimacy of the election.”

Covid-19 has imposed urgent new demands on state Boards of Election and Secretaries of State as they scramble to provide safe alternatives to voting in person, especially in states with less experience with voting by mail.  Recognizing the unique demands for voting by mail this cycle, Congress included $400 million in the CARES Act to help states ramp up for the election.

But the logistics are still daunting given the sheer number of ballots that will need to be printed, folded, mailed, collected, verified, tabulated, reported, and stored. Add to that the legal challenges that will wend their way through state and federal courts. The DNC has already seen a steep increase in election litigation this year. The RNC recently increased its budget to $20 million for election lawsuits.   

State of Play for Mail-In Voting

In 2020, 34 states already have “no excuse necessary” mail-in voting, including the most competitive ones for the presidential race: Michigan, Wisconsin, Pennsylvania, Florida, Arizona, and North Carolina. The other 16 allow mail-in voting “for cause only” but of those, only Texas and New Hampshire are likely to be competitive. What constitutes cause? For example, Texas allows voting by mail if a voter is absent, over 65, or disabled. Does fear of contracting a highly contagious, potentially deadly virus qualify as a disability? U.S. District Judge Fred Biery said it does because voters should “have the option to choose voting by letter carrier vs. voting with disease carriers.” Texas Attorney General Ken Paxton, a Republican, appealed to the state Supreme Court, which stayed the decision pending appeal to the U.S. Court of Appeals for the 5th Circuit.

A recent Reuters-Ipsos poll found that 79% of Democrats and 65% of Republicans surveyed would favor voting by mail to protect against Covid-19.  Both parties agree that voting by mail increases voter turnout. President Trump’s opposition to mail-in voting is inextricably linked to his belief that higher turnout hurts Republicans.  This may be true for some methods or causes of raising or lowering turnout, but there’s no such evidence for mail-in voting.

That fear might explain why the RNC is suing California Gov. Gavin Newsom’s “power grab” to shift to all-mail voting despite Republicans having just won a tight House special election with all-mail voting. The DNC, meanwhile, hopes to preserve early in-person voting rather than shifting to all mail.  Ironically, it was Republicans who originally championed voting by mail in California and Florida, perhaps because older voters have historically been a key part of the Republican base as they were in 2016. Some Republican officials continue to champion mail-in voting, and some additionally fear that the President could depress the Republican vote by sowing distrust in casting one’s ballot in this fashion. 

How this plays out with state readiness and judicial challenges, as well as inter- and intra-party messaging, is up in the air.  A ballot delayed may be the democratic process denied.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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