It would look much more like a set of disparate problems spread around the country that do not get fixed and, taken together, add up to something akin to mass disenfranchisement.
The possibility of a scenario like this has been thrust upon us by the pandemic. The fear is that in many battleground states, Republicans will successfully prevent various efforts by Democrats to make voting amid the coronavirus easier.
One person who is spending a great deal of time on this possibility is Marc Elias, a longtime Democratic lawyer who is representing the party committees in numerous lawsuits throughout the battleground states.
“My concern is that we will see a replication of what we saw in Wisconsin throughout the country — large-scale poll closures for in-person voting and very difficult vote-by-mail rules,” Elias told me. “If we see that, it would be a level of voter suppression we’ve not seen in recent times.”
In Wisconsin, you’ll recall, the Democratic governor wanted the state to send every voter an absentee ballot, but Republicans who control the legislature refused. Meanwhile, many polling places in Milwaukee were closed due to shortages in poll workers.
Democrats were also blocked by the Supreme Court from securing a small extension of vote-by-mail past Election Day, to accommodate voters who had received ballots late due to covid 19-related overloading. That may have disenfranchised thousands and forced countless others to risk going to the polls amid the pandemic.
In the end, Democrats were able to turn out voters through a truly massive effort to prevent a major disenfranchisement debacle (and won the state Supreme Court race in question). But this still poses a cautionary tale.
Here’s why: The basic question is whether Democrats can successfully change or challenge current laws like the ones in Wisconsin that are now on the books in many battleground states — ones that place undue limits on vote-by-mail right now.
The crux of the matter is that amid the pandemic, these limits could loom a lot larger, precisely because we may be relying a lot more on vote-by-mail than we otherwise would.
What are these limits, exactly? As Elias explained, they come in four categories. They constitute laws that currently prevent the following things from being the case, which Elias calls the “Four Pillars” of protecting vote-by-mail:
- Ballots postmarked (as opposed to received) by Election Day must count — which could really matter if lots more people vote by mail and overwhelm election officials, or if the underfunded U.S. Postal Service moves slowly.
- Postage for mailing ballots must be paid by the state.
- Laws must be reformed to make it easier for voters to contest any signature mismatches that might invalidate mailed ballots.
- Third-party groups must be able to collect and return sealed ballots. As Elias noted: “The president rails about this as ‘ballot harvesting,’ but it’s an important tool to ensure particularly that minority and young voters can participate.”
Many of the laws now on the books do not provide for those things. Indeed, in every one of the major battleground states, Elias said, one or more of those Four Pillars is not operative.
And so, in all of the battleground states, Elias and Democrats are mounting legal challenges to get those pillars in place. In many, Republican parties and groups are fighting those efforts.
(For a full list of these laws and ongoing legal challenges, see this report. Also note that many of these states have divided governments, with Republicans controlling all or part of the legislatures, and some are under total GOP control, making it unlikely that the laws will be changed. Hence the lawsuits.)
All these legal actions may seem obscure. But they could add up to truly tremendous stakes.
If Democrats do not get such limits overturned in many battleground states, they fear the possibility of mass disenfranchisement, particularly if the crush in vote-by-mail overwhelms local officials. Or imagine if there’s a second coronavirus wave.
“How these court cases turn out will determine whether we have turnout in the normal range, or whether we look back and see this as a low watermark for voter participation,” Elias said. “When these laws bite, they impact young voters and minorities more. So you could see a very distorted electorate.”
On the other hand, the positive scenario for Democrats is that they win a bunch of these cases, Elias said: “And in a difficult time in our country’s history, we are still able to have a free and fair election, in which every voter who wants to vote can do so and have their ballots counted.”