Nathaniel Persily and Charles Stewart III write at the Lawfare blog:
Despite the challenge presented by COVID-19, the 2020 elections must go forward. The elections to be held on Nov. 3 are not optional. They cannot be postponed, even if dangers to public health remain as great as they are likely to get over the next few weeks.
They make a batch of recommendations, most of which center on shifting to a system of vote by mail and/or expanded early voting. The authors explain:
This initiative requires a commitment comparable to that of the Help America Vote Act of 2002, which authorized $3 billion to states to modernize their voting systems following the 2000 election. Bills to accomplish this are being introduced in Congress now. Although reformers have proposed a host of potentially salutary mandates for the states to follow in the expenditure of these funds, Congress is more likely to appropriate money to secure the 2020 election if fewer strings are attached that trigger partisan or regional concerns.
They urge this not be used as a vehicle for partisan one-upmanship. It is essential that we “avoid a scenario in which one party protests the enactment of a major election administration change and then questions the legitimacy of whoever wins under it.”
Candidly, there is concern on the Republican side that Democrats will have an advantage with vote by mail (an implicit recognition that their efforts to make voting access harder are partisan stunts to suppress Democratic votes). However, Republicans have as much to lose as Democrats if they fail to move to early or mail-in voting since, in 2016, an estimated “27 percent of voters older than 65 voted by mail, compared to 18 percent of younger voters. Older voters, who are more likely to vote Republican but more at risk from the virus, may be particularly reluctant to vote in an Election Day polling place.”
Persily and Stewart caution that this should be seen as an emergency measure for this election only, not a means of permanently changing voting procedures. That is the best way to get public buy-in. (“Recent experience with responses to natural disasters in the midst of voting — such as Hurricanes Sandy and Michael in 2012 and 2018, respectively — demonstrates that the public will accept, indeed welcome, officials making exceptions to established voting rules in order to accommodate dislocations.”)
The authors also make clear that in-person voting should not disappear entirely. “As attention is being paid to expanding mail options, election officials must also focus on reengineering the polling place experience in order to reduce the remaining risk.” That could entail minimizing physical contact between poll watchers and voters, maintaining social distancing, and even relocating polling places (for example, to avoid senior citizen locations). Polling locations likely would need to be stocked with disinfectant, hand sanitizer and latex gloves.
This changeover will be a bigger ordeal, naturally, for the 13 states with 5 percent or less votes by mail. Nevertheless, given the hundreds of billions of dollars we are ready to spend to cushion the financial blow resulting from the virus, a few billion dollars to aid states and shore up our democracy would be money well spent.
Interestingly, the House for the first time this week began seriously exploring whether members could vote from home during this crisis. Given the number of members who have already tested positive, this may be essential to keep Congress working. Just as they are compelled to secure their own votes as part of their constitutional obligations, members of Congress must be certain to secure their constituents’ ability to vote in November. At stake are not merely the presidential, House and Senate races, but a host of state and local measures and offices.
If we are fortunate and the pandemic is well behind us in November, these plans might not be needed. The effort, however, would not be wasted. At some point, we will have exigent circumstances that threaten the security of our democratic elections. If we prepare now, we will not only secure a free and fair election in 2020 but take out an insurance policy for future elections.