This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Andrew Treske
It is impossible to accurately speculate how Covid-19 will impact the United States in November 2020. Will social isolation continue indefinitely? Will there be a resurgence in the virus as the country re-opens? How are people supposed to vote? The answer is widespread mail-in voting. Particularly for the so-called “swing” or “purple” states in the November election.
Covid-19 is a perfect tool for political opportunists interested in suppressing voters. And the reality is that the United States is swarming with them. Make no mistake, voting rights were already under attack in 2020—Covid-19 is just the cherry on top.
As a start, the Supreme Court has continually shown remarkable disdain for voting rights. In three notorious opinions, the Court allowed unfettered corporate spending in elections in Citizens United v. FEC, gutted the effective pre-clearance provisions of the Voting Rights Act in Shelby County v. Holder, and removed federal courts as a potential means for addressing the partisan gerrymandering in Rucho v. Common Cause. Rather than stand as a non-partisan stalwart to protect the integrity of the American democratic system, the Court has been complicit in allowing the system to be destroyed from within.
The Court’s recent Wisconsin order, striking down the governor’s attempt to allow voters an extra week to vote by mail, is in line with its recent decisions favoring voter suppression. There is a very real chance that the Court will be faced with a similar situation in the November general election, and we just received further confirmation of how the Court would decide.
Also, Donald Trump is the President. This is a man who openly stated that higher levels of voting would mean “you’d never have a Republican elected in this country again.” It’s no secret why President Trump recently began a crusade against mail-in voting. As shown by his recent statement, he wants low levels of voter turnout and thinks that will be his best chance for re-election.
The President and the Supreme Court can wield Covid-19 as a powerful tool to suppress voters in 2020. While a federal legislative response could potentially protect the integrity of the Presidential election, there is no guarantee the Supreme Court will not respond by striking any federal legislation protecting the electoral process down. States administer their own electoral processes and a federal legislative response to Covid-19 could be struck down on federalism grounds, like the Court’s holding in Shelby County v. Holder.
The integrity of the 2020 Presidential Election is therefore in the hands of the states. Realistically, each state will not pass legislation to change the way they administer elections to protect voters before November. But all six “swing” states—Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin—must make mail-in voting universally available to protect the integrity of the 2020 Presidential Election. And they need to begin that process today.
Universal mail-in voting is not a revolutionary idea. Every state already has absentee voting options that allow for mail-in voting, and twenty-eight states, including each swing state, do not require absentee voters to provide a reason for using mail-in voting. Additionally, five states – Colorado, Hawaii, Oregon, Utah, and Washington—already administer their elections almost exclusively by mail.
In order to protect the integrity of one of the most important elections in American history, the six-swing states need to take the following steps. First, rather than imposing the burden on voters to request absentee ballots, the swing states must affirmatively provide mail-in ballots to each registered voter in the state, including the cost of return postage.
Second, the swing states need to relax statutory deadlines for voters submitting a mail-in ballot application. Each swing state should count any mail-in vote received up to the day before the election.
Third, states need to take affirmative steps to ensure they have the capacity to administer their mail-in voting systems. By shifting to all mail-in voting, the states can save administrative costs of in-person elections and instead shift those resources to their new mail-in voting systems. This step is critically important because any perceived impropriety in the mail-in election system will be seized upon by President Trump and his RNC cronies.
If swing states do not universally institute mail-in voting, there is a very real threat that their voters will face the same absurd dilemma as Wisconsin primary voters: expose themselves to a deadly virus or have their vote suppressed.
Coronavirus caught the nation flat-footed in early 2020, with tragic consequences. The few states slated to determine the fate of the 2020 Presidential Election cannot allow the virus to do the same in November.