Paul Sancya/AP Photo
A voter fills out an absentee ballot at City Hall in Garden City, Michigan, May 5, 2020, as about 50 Michigan communities participate in largely mail-based local elections.
While teams of doctors, nurses, and essential workers battle the coronavirus in hospitals, another team of protectors is fighting for the safety of American democracy in the courts. The COVID-19 pandemic adds another layer of concern to the smooth functioning of our elections, sending advocacy groups like the ACLU, the Southern Poverty Law Center, and the Legal Defense Fund into action on the public’s behalf.
“This is an election year, so we’re always ready and prepared for a lot of action and part of that is, of course, ramping up to the more heavily involved election protection efforts,” said Sophia Lakin, deputy director of the ACLU’s Voting Rights Project, in an interview with the Prospect. “But the pace is unusual even in that context … [and there’s been] a crunch in the last three to four weeks, at a breathtaking pace for both us on the ground and I’m sure for all of you trying to follow the news.”
The wave of voting rights litigation filed across the country in the last few weeks has been vast. And the Republican National Committee has assembled a $20 million fund just by itself to combat any litigation aimed at expanding access to the ballot. The recently filed lawsuits respond to the many ways that the right to vote can be challenged or completely taken away by the COVID conditions. And although the legal action is happening across the country, there are threads that connect all the suits.
The first criterion for bringing any lawsuit, Lakin says, is making sure that all eligible voters have access to a mail-in ballot. This narrows the focus to 16 states that usually require a pre-approved state excuse to receive a mail-in ballot, which previously did not include fears of contracting a virus. Action has been taken in some states, and some without pressure from the courts. But where a state has failed to act, lawsuits have been filed, notably in Texas, Tennessee, South Carolina, and Missouri.
The perfect bad example attorneys and advocates point to is Wisconsin, the only state not to delay its in-person primary on April 7. The state wasn’t prepared to provide voter access to mail-in ballots, polling places were drastically consolidated in its biggest city, thousands of people risked exposure to ensure they voted, and those who couldn’t take that risk did not vote at all. There are now 52 known cases of COVID-19 that can be traced back to the primary.
In April, a federal judge gave the ACLU and its co-plaintiffs (the League of Women Voters, MOVE Texas, and University of Texas student Zach Price) a victory in Texas, ruling that all eligible voters can request mail-in ballots through the disability excuse in the state law, which is defined as “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” Lack of immunity from COVID-19, without a vaccine or antibodies, technically qualifies.
However, the victory was short-lived, because on Wednesday, the Texas Supreme Court ruled in a separate state case that lack of immunity to COVID-19 is not a physical disability, nullifying that as an excuse for mail-in voting. The federal lawsuit on the same issue is under appeal. These overlapping cases in multiple jurisdictions will continue to cause confusion leading up to Texas’s July primary runoff election and beyond.
These cases focused on mail-in ballot access can get even more into the weeds of procedures and requirements when it comes to witness signature and signature matching cases. Some of these cases were started even before the coronavirus, because of the numerous studies showing how they can exclude someone’s vote from the final count in an election. There is litigation on these signature procedures in Virginia, South Carolina, and Missouri (where a notary is needed to send in a qualifying absentee ballot).
Virginia settled with the ACLU in early May to remove the witness signature requirement. The Commonwealth, which as of this year has been controlled by a Democratic trifecta, may be viewed as exceptionally motivated to expand access to voters. In April, Virginia repealed its voter ID law, citing how it disproportionately affected low-income voters, racial and ethnic minorities, and elderly voters.
In South Carolina, a voter-suppression hot spot, a court also removed the witness signature requirement for the upcoming June primary election.
“If you have to go out and get a notary, if you have to go out and find a witness to watch you and violate a stay-at-home order, or just generally put yourself at a health risk, that seems to be contrary to the whole point of using vote-by-mail to keep you healthy and safe during this time,” Lakin explains.
“If you have to go out and get a notary, if you have to go out and find a witness to watch you and violate a stay-at-home order, that seems to be contrary to the whole point of using vote-by-mail.”
Many of these rules and procedures have been in place for years. “Because [voting by mail] was not the way the majority of people in those states voted, the fairness of the rules governing absentee ballots have not been closely scrutinized or fought over, because most voters didn’t use that and because everybody had alternative ways of voting safely,” says Wendy Weiser, vice president and director of the Democracy Program at the Brennan Center for Justice.
It’s known that some procedural requirements in a state’s absentee voting system can lead to votes not being counted. More than 100 mail-in ballots weren’t counted in South Carolina’s presidential primary. But the expected increases in people requesting to vote by mail could multiply this number greatly. High ballot error rates across the U.S. could cast doubt on the whole process.
“The fairness and accessibility of absentee balloting rules are suddenly essential to the fairness and credibility of the election,” Weiser says.
Lakin and her colleagues in voting rights law are well aware of this, as well, bringing us to the third area of litigation, cases involving the counting of mail-in ballots. These cases challenge the fairness of signature matching laws and deadlines for receiving ballots. The legal battle continues in states like Michigan and Pennsylvania.
The pace of these lawsuits has increased, as Lakin says, but it’s part of a larger trend of voting rights litigation that’s been going on for the past two decades, and especially after the Supreme Court struck down the preclearance requirement of the Voting Rights Act of 1965 in Shelby County, Alabama v. Holder. Preclearance meant that any state with a history of discriminatory voting laws had to submit any changes to their election systems in advance of implementation to the Department of Justice. New laws that would affect access to voting based on race or language, for example, would be struck down before anyone could be affected by them. Today, the laws can go into effect and the justice system gets involved afterward.
Weiser offers a best-case scenario: Any issues with access to voting could be proactively addressed right now by legislatures, governors, or chief election officials across the country. However, when they fail to act because of partisanship or denial, the courts become an essential fail-safe.
“The courts are a remedy of last resort to protect our rights, but they are a necessary corrective in our system,” Weiser says. “There are, and we’re seeing, political failures across the country that if they are not remedied would lead to large-scale disenfranchisement or unfair obstacles that could not only introduce unfairness in our elections but also, and just as importantly, undermine the perception of the fairness of the election.”
