The updated headline of this article reads:
‘Your Health or the Right to Vote’: A Battle in Wisconsin as Its Primary Nears
The updated headline of this article reads:
‘Your Health or the Right to Vote’: A Battle in Wisconsin as Its Primary Nears
I was on WHYY’s Radio Times. You can listen here.
Tina Barton, Kammi Foote and Paddy McGuire oped in the Detroit Free Press:
Today, more than ever before, local and state election officials across this country have the capacity to provide safe and transparent elections to all voters. We are calling on Congress and States to act now to provide the funding and local autonomy needed to protect the sanctity of this November’s election.
Most of the current conversation in the midst of this national crisis has centered around the need for a significant increase in voting by mail, and we agree. However, it is a mistake for the Federal government to impose top-down, long-term sweeping structural reforms to how Americans vote. Critical decisions about administering elections should reside primarily with state and local governments, as provided for in the U.S. Constitution. What we do need from Washington are the resources to staff up and increase our capacity to deal with unanticipated problems. …
Tina Barton is clerk of the City of Rochester Hills, Michigan. Kammi Foote is clerk/recorder and registrar of voters at Inyo County, Calif. Paddy McGuire is auditor of Mason County in Washington.
Important Wendy Weiser and Larry Norden oped for Politico.
Wisconsin’s chaotic spring election got even more unpredictable Thursday as two new lawsuits were filed attempting to alter voting rules because of the coronavirus pandemic that has forced people to stay at home.
The lawsuits — the third and fourth to be filed over the April 7 election — come as clerks scramble to figure out how to safely run an election when they are short on poll workers and hand sanitizer and health officials say people should stay at least six feet from each other.
One of the new lawsuits, led by voter mobilization group Souls to the Polls, seeks to put off the election for weeks or months. It’s in line with a lawsuit Green Bay’s clerk filed this week to postpone the election.
The other suit filed Thursday seeks to allow people to cast absentee ballots without having to get a witness to sign their voting certificate.
Ron Krotoszynski for the Atlantic.
Jack Goldsmith and Ben Miller-Gootnick at Lawfare.
The following is a guest post from Travis Crum:
Earlier this week, the Supreme Court issued a decision that could have significant consequences for the constitutionality of the Voting Rights Act and other civil rights legislation applied against the States. The Court’s opinion in Allen v. Cooper is not your typical blockbuster, but it is the first time the Court has addressed Congress’s Reconstruction Amendment enforcement authority since its 2013 decision in Shelby County v. Holder invalidating the VRA’s coverage formula.
Even though the Court did not do so explicitly, Allen helps reconcile Shelby County’s equal sovereignty principle and Boerne’s congruence and proportionality test. Allen establishes that laws need not pass muster under both Shelby County and Boerne. Coverage formulas are governed by Shelby County, and nationwide statutes enacted pursuant to Congress’s Fourteenth Amendment enforcement authority are controlled by Boerne.
Let’s start with Allen. In 1990, Congress passed the Copyright Remedy Clarification Act, and, in so doing, relied on its enforcement authority under Section Five of the Fourteenth Amendment to abrogate state sovereign immunity in copyright suits. In Allen, the Court concluded that Congress failed to amass a sufficient legislative record to abrogate state sovereign immunity for copyright infringement. Most relevant here, the Court relied heavily on Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, a progeny of Boerne holding that Congress had not validly abrogated state sovereign immunity for patent infringement suits. As Justice Kagan’s majority opinion wryly observed, “Florida Prepaid all but prewrote our decision today.”
If Shelby County changed the standard of review for statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority, Allen would not be a sequel to Florida Prepaid. Thus, what’s noteworthy about Allen is that it straightforwardly applies Boerne’s congruence and proportionality test even though it post-dates Shelby County. In fact, Allen does not even cite Shelby County. In many ways, Allen is the doppelgänger of Shelby County, where, as Rick Hasen has pointed out, the Court glaringly omitted any reference to Boerne.
As such, Allen is strong evidence that Shelby County’s equal sovereignty principle is an example of “freestanding federalism” rather than a specific limitation on Congress’s Reconstruction Amendment enforcement authority. I have previously argued this point (see here, here, and here), as have Leah Litman and Thomas Colby, so I will not belabor it here. Rather, I want to focus on the consequences of Shelby County being cabined to statutes that differentiate between the States. And here, a few hypotheticals are illuminating.
Imagine that a future Congress enacts a nationwide statute that prohibits States from discriminating on the basis of sexual orientation in certain realms, such as employment or adoption services. And to enforce that statute, Congress abrogates state sovereign immunity. As Allen makes plain, Shelby County’s equal sovereignty principle has nothing to say about that nationwide statute.
Now envision the inverse situation. Suppose Congress passes a statute under the Commerce Clause that expressly singles out a State for special treatment, say, a requirement that Illinois—and only Illinois—obtain federal pre-approval to make changes to its public employee pension fund. If the equal sovereignty principle is an example of freestanding federalism, then the statute would have to satisfy Shelby County. But if the equal sovereignty principle is tied to the Reconstruction Amendments, then it would not. In light of Allen, the Court would probably apply Shelby County, as the statute would impugn Illinois’s sovereignty alone.
These two hypotheticals address Shelby County’s concern with equal sovereignty, but what about its language that a statute’s “current burdens” must be justified by “current needs”? Suppose ten years from now a State seeks to overturn Nevada v. Hibbs, a 2003 decision upholding the FMLA’s family-care provision and its abrogation of state sovereign immunity. The State may argue that Congress’s findings were based on data from the 1990s and earlier—in other words, the FMLA has a constitutional shelf life.
The hypothetical State’s argument would seem like an ill fit for a permanent statute. After all, as the Shelby County Court repeatedly reminded us, Congress reauthorized the VRA in 2006 for twenty-five years but relied on the same data from the 1964, 1968, and 1972 elections as triggers for coverage. By contrast, Congress’s decision to abrogate every States’ sovereign immunity in the FMLA was intended to be not only nationwide but also permanent. The hypothetical State’s argument would also run counter to stare decisis: the Hibbs Court expressly followed Boerne and upheld the FMLA’s family-care provisions notwithstanding the lack of a termination date. Even assuming a future Court were concerned about outdated data, it would be difficult to square this concern with precedent. Put simply, if Shelby County were limited to coverage formulas, then its “current burdens” and “current needs” requirement could not be invoked to overturn precedent or challenge older, nationwide statutes.
To be clear, I am not here to celebrate Boerne. The congruence and proportionality test is no paper tiger, and the Court has invoked it to invalidate numerous civil rights provisions as applied to the States. Rather, my point is to demonstrate that Allen helps resolve the doctrinal mess left in Shelby County’s wake and makes clear that the equal sovereignty principle does not apply to nationwide provisions of the VRA like Sections 2 and 3(c). And because the Court has never held that Boerne applies to Congress’s Fifteenth Amendment enforcement authority, those provisions can still be defended under Katzenbach’s rationality standard.
I was on the Equal Citizens podcast with Adam Eichen and Jason Harrow. Listen.
David Lublin oped for the Baltimore Sun.
Two poll workers who spent Florida’s primary day in precincts in the city of Hollywood have tested positive for coronavirus, the Broward Supervisor of Elections said Thursday.
According to a press release, Supervisor Pete Antonacci has learned that the workers tested positive for COVID-19, the disease caused by novel coronavirus, after working March 17 at precincts at the Martin Luther King Community Center and the David Park Community Center, both in the city of Hollywood.
One of the workers also worked at an early voting center in Weston, according to the press release. Early voting ended March 15.
One issue that most people (including me) have not had a chance to delve into during this virus crisis is how it affects petitioning—both the ability of candidates and parties to get on the ballot as well as the qualification of initiatives.
I think this issue will get more attention (and it gets lots of attention over at Ballot Access News). Here’s the first lawsuit I’m aware of that seeks a court order to lower petition requirements: “The result [of the pandemic] is that the plaintiffs have no reasonable opportunity to qualify for the ballot without endangering their own lives and the lives of others.”
More indispensable work under terrible conditions from the Brennan Center.
The State Board of Elections on Thursday released a list of legislative recommendations to help make voting in North Carolina safe and accessible in 2020, despite the ongoing threat of COVID-19.
Karen Brinson Bell, executive director of the State Board of Elections, made the recommendations Thursday in a letter to Governor Roy Cooper, N.C. House Speaker Tim Moore, N.C. Senate President Pro Tempore Phil Berger and other state legislators.
The recommendations center around three main themes:
Gavin Weise for the U.S. Vote Foundation.
Bob Bauer, Ben Ginsberg, Nate Persily NYT oped:
Who will assist with the best, most informed decisions about the spending of these funds? Our country’s elections are conducted in over 10,000 state and local jurisdictions — and in the face of a bewildering maze of federal, state and local laws, rules and regulations. Far-reaching, permanent reform will be impossible to achieve right now. Democrats and Republicans are deeply divided over fundamental issues, like the authority of partisan elected officials and the role of the federal government. But extraordinary measures to shore up professional election administration should attract support across both parties.
Our commission was successful because its membership drew from the business community and local election officials. A similar approach, led by the private sector rather than government, is needed to deal with the current crisis. The commission could be led, for example, by former presidents and supported by organizations like National Association of State Election Directors, the National Association of Secretaries of States, the National Conference of State Legislatures and the National Academy of Sciences. But its members should be people who have actually run elections at the local level. It should also include people from private industry with relevant experience, the military for expertise in logistics and the medical community for knowledge about infectious disease….
But the adoption of these policies only mitigated the ever-present difficulties of the electoral process. Today’s public health emergency exacerbates them and adds new ones. The calls for expanded voting by mail, for example, pose a fresh set of issues. States without a robust history of mail balloting will need to pay great attention to signature verification and chain of custody. The overarching principle is that every qualified voter must have the opportunity to cast his or her ballot.
As always, success depends on the details: sound planning and good practice. A national commission structure such as one we propose could help cut through the confusion and partisan contention and bring real help.
Release via email:
Today, the National Task Force on Election Crises released the first of several planned guides for how to respond to potential disruptions of the 2020 general election. The COVID-19 Election Guide, available here, addresses how state and local officials can protect eligible voters’ ability to cast ballots without undue risk to their own health or to the broader community. The Task Force was formed in 2019 to be prepared to respond to a wide range of potential threats to a free and fair 2020 election in a collaborative, cross-partisan, and multidisciplinary fashion. More information about the Task Force is available here.
“Elections are the foundation of our democracy, but there are many ways in which regular electoral procedure could be disrupted,” said Trey Grayson, a member of the Task Force and former Secretary of State of Kentucky and former President of the National Association of Secretaries of State. “The coronavirus pandemic is a perfect example of how elections can be impacted, but it’s far from the only threat, and many election administrators are already starting from a place where they don’t have sufficient resources. We need to plan and prepare to ensure our elections are resilient.”
The COVID-19 Election Guide offers recommendations to help legislators and election officials conduct a successful 2020 general election, despite the many challenges that the coronavirus is likely to pose, with the goal of ensuring that the election is conducted on time as required by law and that public confidence in the integrity of the electoral process and the legitimacy of the outcome is preserved. Recommendations for helping to achieve these goals include:
The guide also provides recommendations on the use of emergency powers by governors and other state officials to respond to the crisis. Any departure from the ordinary rules governing the electoral process, it states, should be made pursuant to state and federal law using objective criteria that guides official discretion and minimizes partisan bias.
“Our nation has overcome crises before and we will overcome this one,” said Task Force member Michael Chertoff, former U.S. Secretary of Homeland Security under President George W. Bush. “But doing so requires well thought out contingency plans, advance preparations, broad coalitions working together, and support for those on the front lines of making our elections work—election administrators, local officials, poll workers, the media, and especially the voters. I know there are so many dedicated public servants around the country already working to ensure the success of our elections and hope by joining this Task Force I can do my small part to support them.”
Task Force member Vanita Gupta, President and CEO of The Leadership Conference on Civil and Human Rights, added, “In 2020, further unexpected events are bound to take place, but the right to vote must be protected and preserved. Already, we are seeing the impact of COVID-19 on primary elections—and officials are obligated right now to take steps, like the ones outlined in our guide, to ensure the general election proceeds on schedule as required under federal law. The National Task Force on Election Crises was formed to ensure that all eligible voters are able to make their voices heard when the ballots are counted. No voter should have to choose between their health and the right to vote, and voters of color and other historically disenfranchised communities must be able to make their voices heard. The right to vote is one of our most basic rights as Americans, and it is our collective task to make sure it can be fully realized—even under the most difficult circumstances.”
“As a nation, we have a long history of unequal access to the ballot box. We have been preparing to meet voter suppression challenges for this year’s election for some time. Now we must also respond to a public health crisis and prepare for a wide range of other potential election disruptions, such as a major cyber-attack, online foreign interference or fights over contested election results,” said Task Force member Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund. “As we’ve seen with other election challenges, those who will be most impacted are voters in African American, Latino and other traditionally marginalized communities. That’s why we need to rapidly prepare at the federal, state, and local levels to protect the 2020 election. This will require a massive effort, but it’s critical to safeguard our democracy.”
“In a critical election year, steps can and must be taken to ensure that the democratic process proceeds on schedule through the November election, while protecting the health of both voters and poll workers,“ said Trevor Potter, President of the nonpartisan Campaign Legal Center and a former Republican Chairman of the Federal Election Commission. “Our election processes and infrastructure will continue to be tested by the coronavirus. Policymakers and election officials must ensure that every eligible American has access to the ballot box because the essence of democracy is that every eligible voter must have the opportunity to participate. Elections have endured in other times of crisis, and they will in 2020.”
For more information about the National Task Force on Election Crises, visit ElectionTaskForce.org.
The National Task Force on Election Crises is a diverse, cross-partisan group of more than 40 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, public health, and emergency response. The mission of the nonpartisan National Task Force on Election Crises is to ensure a free and fair 2020 general election by recommending responses to a range of potential election crises. The Task Force does not advocate for any electoral outcome except an election that is free and fair.
The Task Force was convened by Protect Democracy, a nonpartisan nonprofit organization. Protect Democracy’s staff supports the work of the Task Force, and in doing so has drawn on assistance from Jenner & Block, the Institute for Constitutional Advocacy and Protection at Georgetown Law, the Democracy & Rule of Law Clinic at Harvard Law School, and the William & Mary Election Law Society.
Current members of the Task Force include:
*Organizational and academic affiliations are for identification purposes only and don’t necessarily represent institutional endorsement.
Pennsylvania lawmakers voted Wednesday to delay the state’s primary election by five weeks to June 2, potentially past the spike of the state’s spreading coronavirus cases.
The measure passed both chambers of the Republican-controlled state Legislature on Wednesday and Gov. Tom Wolf, a Democrat, said he will sign it.
As a result, Pennsylvania will join more than 10 states in delaying primaries.
It comes just a few months after Wolf and lawmakers approved legislation giving every voter the ability to mail in a ballot.
Under the bill, Pennsylvania would hold its primary election June 2, instead of April 28, when the state could be in the thick of a surge of COVID-19 cases.
Tyler Creighton in the Boston University Law Review.
A sweeping federal spending package responding to the new coronavirus pandemic will include millions to help states administer elections, but some fear it will not be enough to prevent chaos in November.
The enormous spending bill expected to be released Wednesday morning will include $400 million in election assistance, according to two sources who have seen a summary of the bill from appropriators. That figure is still a fraction of the $2 billion the Brennan Center for Justice estimated is necessary for states to prepare for a surge of voters casting ballots by mail and to ensure safe in-person voting….
Election officials are already scrambling to adjust to the pandemic, postponing primaries and stressing absentee voting options so voters can avoid polling places. To curb the spread of the virus, public health officials have recommended gatherings not exceed 10 people….
ven without a federal mandate, election officials are still expecting a surge in voters requesting to mail in their ballots in November. Officials are also in need of additional resources, such as cleaning supplies to disinfect polling places. And they are expecting a shortage of poll workers. Those workers tend to be senior citizens, who appear to be more vulnerable to life-threatening illness from the virus.
“What we know now is that [election administrators] are going to be looking at increased vote-by-mail, probably in every jurisdiction in the country,” said Hovland. “And with that increase, and additional steps to make sure that voting in the polling place can also be safe for voters … there are going to be these additional unanticipated costs.”
Wendy Weiser, director of the Brennan Center for Justice’s Democracy Program at New York University’s law school, said Tuesday that a few hundred million dollars from Congress would be “woefully inadequate” to cover those costs.
Michael Steele and Eli Lehrer have written this Washington Times oped.
Annoucement via Email:
Voting in the Time of Corona
Wednesday, March 25, 2020
1-2 p.m. ET
|The COVID-19 pandemic has already resulted in the postponement of elections across the country and will continue to impact elections throughout 2020. How will officials administer elections during this crisis? Some believe a rapid expansion of vote by mail may hold the answers, though the short timeframe will pose challenges. In-person voting options will likely be necessary and may remain more widespread than we might think during this extended, global shelter-in-place. No matter the outcome, each solution will require election officials to overhaul their plans to ensure all eligible Americans can vote in November. Join Matthew Weil as he discusses key considerations for policymakers and administrators to ensure a successful 2020 Presidential election. Weil will be joined by state and local election administrators as well as the director of the MIT Election Data and Science Lab. |
Bookmark this page to join the e-briefing
Jessica Huseman for ProPublica:
While mail-in ballots seem like an elegant solution as the United States grapples with containing COVID-19, experts say slow-moving state and county governments, inconsistent state rules and limited resources to buy essentials such as envelopes and scanners could make it difficult to ramp up nationally to reach more than 200 million registered voters in the November general election. Among the possible downsides of a quick transition are increased voter fraud, logistical snafus and reduced turnout among voters who move frequently or lack a mailing address.
There is bipartisan consensus that mail-in ballots are the form of voting most vulnerable to fraud. A 2005 commission led by President Jimmy Carter and James A. Baker III — George W. Bush’s secretary of state — concluded that these ballots “remain the largest source of potential voter fraud.” Ballot harvesting scandals, in which political operatives tamper with absentee ballots that voters have entrusted to them, have marred recent elections in North Carolina and Texas.
Mail-in technology is also far more complex than a poll worker stuffing ballots into envelopes and opening them on return. In some cities with diverse populations, hundreds of types of ballots in multiple languages must be designed and directed to the appropriate voters in the correct precincts. Envelopes must be thick enough to protect voter privacy, and the paper thickness must be appropriate for scanners used to count ballots. When ballots are received, machines often open the envelopes and sort and tabulate the votes. These machines are expensive, and they generally take several months to order.
Pam Fessler reports for NPR.
Sign of the times:
The absentee voting effort will allow Georgians to decide on their choices for president and other elected offices from home, without having to visit in-person voting locations where the coronavirus could more easily spread. Early voting and election day precincts will remain open.
A large number of people voting by mail would be a significant change in the way elections are run in Georgia. While the state has allowed any voter to cast their ballot by mail since 2005, just 7% of voters did so in the 2018 election for governor.
The state’s vote-by-mail initiative follows an agreement by Raffensperger, a Republican, and the Democratic Party of Georgia to delay the previously scheduled March 24 presidential primary because of the coronavirus. The presidential primary will now be held May 19, along with races for U.S. Senate, U.S. House, the Georgia General Assembly and local offices.
Taniel Q and A with Tammy Patrick.
State and local officials are warning that congressional efforts to prepare states for a possible national surge in mail-in voting in November may result in chaos instead of smoother balloting.
They say more federal funding for such an effort, currently being debated as part of the $1.8 trillion coronavirus stimulus bill stuck in Congress, could overwhelm election officials with just seven months left to prepare for a presidential and congressional elections.
Federal mandates for a largely mail-in election could well be a “recipe for disaster,” Iowa Secretary of State Paul Pate (R), president of the National Association of Secretaries of State (NASS), told me. Pate worries there may inadequate machinery to process ballots, poorly trained poll workers and a confused voting public.
Five of the eight justices on the Georgia Supreme Court on Monday disqualified themselves from a case calling for an open election for Justice Keith Blackwell’s seat.
Justices Charles Bethel, Michael Boggs, John Ellington, Nels Peterson and Blackwell recused themselves from hearing appeals filed by former U.S. Rep. John Barrow and former state Rep. Beth Beskin. Both contend there should be an election that allows voters to choose a successor to Blackwell, who announced in February that he is resigning from the court in November.
Atlanta lawyer and former state legislator Beth Beskin, who has filed suit for an election to be held for a seat on the Georgia Supreme Court. (Alyssa Pointerfirstname.lastname@example.org)Photo: Alyssa Pointer / AJC
Barrow and Beskin are appealing an order by Fulton County Superior Court Judge Emily Richardson, who ruled that Blackwell’s seat officially became vacant when Gov. Brian Kemp accepted Blackwell’s resignation. Per Richardson’s decision, an election is unnecessary because Kemp gets to appoint Blackwell’s successor.
Planners for the Democratic National Convention are looking at “contingency options” in case the mid-July gathering in Milwaukee can’t take place because of the coronavirus, officials said on Monday for the first time.
“As we navigate the unprecedented challenge of responding to the coronavirus, we’re exploring a range of contingency options to ensure we can deliver a successful convention without unnecessary risk to public health,” said Katie Peters, a convention spokeswoman. “This is a very fluid situation — and the convention is still more than three months away. We are committed to sharing updates with the public in the coming weeks and months as our plans continue to take shape.”
One person with knowledge of the discussions said Monday that “intensive scenario-planning” was taking place among officials from the Democratic National Committee, the convention committee and the Milwaukee host committee, who were all determining what to do about the convention, which is scheduled for July 13 to July 16 at the Fiserv Forum in Milwaukee.
Among the complicating factors are the uncertain nature of the professional basketball season — the arena hosting the convention is home to the Milwaukee Bucks, a top N.B.A. team likely to play deep into the playoffs if the league’s season were to restart — and how the party’s delegates will be selected. Delegates in most states are elected to the national convention from state conventions, but many state conventions, scheduled for late spring and early summer, are also being postponed.