The election results on Tuesday brought both good news and bad news on this front. The bad news: When an Ohio court ruling postponed the primary there, it exposed a serious lack of clarity arising from conflicting laws and imperatives which might mean other states could postpone elections this fall, if things remain terrible.
As Ian Millhiser noted for Vox, this underscores that “American election law was not written with a pandemic in mind,” and that “we are not ready to hold an election during a pandemic.”
The good news: Turnout in two states that did vote on Tuesday — Florida and Illinois — did not plummet in a manner that some feared, precisely because many people exercised their option to vote by mail. This suggests we can take steps to avert major electoral disruptions, or at least minimize them.
The new Center for American Progress report lays out a host of ideas along these lines — suggestions for how state elections officials can mitigate the disruptions to our elections, should the pandemic is still be upon us.
The basic challenge here, as the report notes, is to reconcile two imperatives: First, the need to ensure that voter participation remains easy or even just feasible for every American who is eligible to vote. And second, to prevent our elections from facilitating further spread of the disease.
Looming in the background of all this is the goal of trying to spare as many people as possible from having to make a wrenching choice between preserving their own health and that of others via social distancing, and exercising their right to franchise.
“Depriving the American people of a free and fair election will inevitably result in a legitimacy crisis at all levels of government,” the report points out. That has ominous implications: At exactly the time when people need to maintain faith in government and our institutions as they seek to coordinate our response to coronavirus, it could also end up making it more difficult to maintain that public faith.
And so, the report proposes an array of ideas. Among them are making emergency federal funding available to states and localities, so they can expand options such as online voter registration and vote-by-mail where they may not exist, making it easier to register and cast a ballot at a distance.
The report suggests that states without all-vote-by-mail systems adopt them immediately, and also suggests creating options for other ways to drop off ballots via quarantined options. As voting rights lawyer Marc Elias points out, a successful vote-by-mail program, particularly in a time like this, rests on four pillars:
Four Pillars to Safeguard Voting Rights with Vote by Mail— Marc E. Elias (@marceelias) March 18, 2020
➡️Postage free or prepaid
➡️Ballots postmarked by Election Day must count;
➡️Signature matching laws reformed to protect voters
➡️Community orgs can help collect & deliver voted, sealed ballots. https://t.co/WDYQQcHTz6
Another idea suggested by the Center for American Progress is for states that don’t have same-day registration to implement it, since planning for separate-day registration might be more difficult for people dealing with coronavirus-imposed hardships to their lives. Also, states without no-excuse absentee voting — that is, a system that allows votes by mail without a requirement to provide a reason — should implement it.
Still another important suggestion is for states with strict voting burdens to suspend them — since people dealing with a public health emergency should not face other burdens as well — though states that have implemented these will be reluctant to jettison them, for obvious reasons.
It may be that more federal coordination and mandates are necessary to make such things happen. Sen. Ron Wyden (D-Ore.) has proposed legislation that would mandate that states make vote-by-mail available to all who are eligible if 25 percent of states declare a coronavirus emergency.
Meanwhile, Brian Beutler and David Leonhardt have both suggested that Democrats should make Republican support for provisions like federally mandated vote-by-mail a condition for Democrats to agree to stimulus spending.
The idea there is to leverage Republicans and President Trump (who plainly thinks he benefits from maximal chaos and lack of public faith in elections) into treating the need to safeguard our democracy as a requirement in defending our society from pandemic-inspired disruptions.
The United States has been fortunate to have never postponed an election, even during wartime. This has been a hallmark of civil stability and democratic legitimacy. As elections scholar Richard Hasen points out:
If we think of the country as at war with coronavirus right now, as part of the war effort we should put plans in place to insure that voters may cast their ballots easily and freely in November. This time the enemy is not another country. But national mobilization to protect our democracy from this virus is urgent.
The matter at stake here is whether we are going to allow this crisis to disrupt our free and fair elections. It may require another real mobilization of a different sort to prevent it from happening.