Monthly Archives: March 2020

Franita and Foley: Voting in the Time of the Virus, Part 2″

Beyond causing delays, COVID-19 will impact the many administrative and logistical aspects of the 2020 U.S. presidential election — from staffing to absentee ballot printing to vote counting. How can we prepare if we don’t know what to expect? What happens if there is a second wave of the virus? Is the coronavirus relief bill’s $400 million to protect elections enough? Election scholars Ned Foley (OSU Moritz College of Law) and Franita Tolson (USC Gould School of Law) welcome guests Nathaniel Persily (Stanford Law School) and Charles Stewart III (MIT Political Science) to discuss what needs to be done to prepare for Election Day.


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11th Circuit Denies Rehearing En Banc in Florida Felon Disenfranchisement Case; Full Trial in April Over Felon Rights Likely to Lead to Greater Voting Rights

The 11th Circuit has denied rehearing en banc in a case concerning whether the Florida legislature’s attempt to make felons pay all fines and fees before having their voting rights restored under Florida’s Amendment 4 is unconstitutional.

The ruling so far applies only to the named plaintiffs, but there will be a trial in April about extending the ruling to the over one million former felons in Florida. Without that extension, there will be legal uncertainty and confusion that surely would depress the vote from this population.

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“Voting rights groups sue state over extended Ohio primary”

Columbus Dispatch:

Voting rights advocates sued the state Monday over a new primary election plan state lawmakers adopted last week after polls were closed because of the COVID-19 outbreak.

The League of Women Voters, A. Philip Randolph Institute and four individual voters filed a federal lawsuit Monday alleging the plan violates the National Voter Registration Act and the First and Fourteenth amendments of the U.S. Constitution.

Immediate action is needed from the court “to prevent the state from compounding the current public health crisis into a crisis for democracy in Ohio,” the lawsuit said.

“Under the General Assembly’s undemocratic election scheme, thousands, if not millions, of Ohioans will not get to vote through no fault of their own,” said Jen Miller, executive director of the League of Women Voters of Ohio, in a prepared statement.

“Ohio’s inefficient absentee voting system wasn’t designed for this massive scale, especially under such an impossible time frame. We call on the justice system to ensure that Ohio’s primary is constitutional and accessible.”

The Ohio General Assembly last week unanimously adopted a bipartisan plan to extend absentee voting until April 28, with limited opportunities for in-person voting that day.

The first sheet of the 26-page lawsuit says lawmakers “ignored the pleas of bipartisan state and local elections officials, and imposed a cumbersome multi-step, multi-mailing process that will be impossible for elections officials and voters to complete in the time left before the election concludes.”

Research indicates that these changes “may hit Black and brown voters the hardest,” the lawsuit said.

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“Wisconsin polling places are closing because there’s not enough people to work the April 7 election”

Milwaukee Journal-Sentinel:

Some election clerks are so short of workers because of the coronavirus pandemic that they are planning to shutter polling places around Wisconsin — including many of them in Milwaukee.

And at least one clerk is warning that some voters in the April 7 election won’t be able to return their absentee ballots in time to have them counted. 

Milwaukee needs about 1,400 poll workers to run its election but so far has fewer than 400, according to Neil Albrecht, director of the Milwaukee Election Commission. Another 300 workers are needed for the central location where absentee ballots are processed, but fewer than 50 had been hired as of last week.

Training those poll workers is difficult because health officials say people must stay 6 feet away from one another to slow the spread of coronavirus.

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“What Happens in November if One Side Doesn’t Accept the Election Results? How coronavirus could contribute to a 2020 election meltdown.”

I have written this new big piece for Slate. Some snippets:

The November 2020 presidential election won’t be run perfectly—we have never had a perfect election conducted in this country or elsewhere—but the unique challenges posed by the coronavirus pandemic add special stress to what was already going to be a difficult election and underline the need to insure that it is run in a way that maximizes both voter access and integrity. Even before the current crisis I had been deeply concerned about the chances of a 2020 “election meltdown,” in which the 47 percent or more of the population on the losing side would not accept the results as legitimate. I am even more worried now because of the changes and shortcuts that will be necessary to successfully run November’s tally amidst a pandemic. Here is what we need to do to minimize the chances of a November meltdown….

The current public health crisis is only likely to increase the strains on voter confidence. In its massive economic aid package that was signed into law on Friday, Congress is providing only $400 million for states to deal with expected increased costs associated with running the election during the outbreak, a woefully inadequate amount given Brennan Center $2 billion estimate for additional needs. Congress rejected Democrats’ attempts to require states to offer a no-excuse vote-by-mail option in November for the one-third of the states that still require voters to offer an excuse to vote from home.

The lack of federal funding may negatively affect voter confidence in a few ways. First, if the pandemic is still limiting our ability to move freely about society in the fall, the amount of absentee balloting is going to explode whether Congress mandates an expansion of absentee balloting or not. We have already seen the huge growth in absentee ballot requests for Wisconsin’s April 7 primary, along with legal challenges surrounding the state’s Voter ID law . Vote-by-mail is an important step in assuring that even if the virus keeps people away from physical polling places, millions of Americans will have a means of avoiding disenfranchisement. But it is not perfect.

Vote-by-mail ballots are more likely to be rejected than other ballots, because of problems like signature mismatches. We also know that rejection rates for signature mismatches can disproportionately affect minority voters. Some states do not alert a voter whose ballot has been rejected about the rejection, failing to give the voter a chance to cure something like a purported signature mismatch. Signature matching is also a notoriously subjective endeavor. Even before the coronavirus pandemic, the issue has led to litigation over whether those voters are being unconstitutionally denied their right to vote. Some disabled voters, meanwhile, may need to vote at physical polling places because they lack the physical ability to fill out a ballot at home. These voters too risk disenfranchisement. And in the 11 states without online voter registration, even registering to vote in time for the election may pose a great challenge if government offices are closed or maintaining only limited hours.

Further, some jurisdictions are going to be overwhelmed with the number of absentee ballots to process, whether because of the lack of scanners or workers. There will be stories of notoriously bad election administration in November, because we have some election offices in the country with poor leadership and inadequate resources—problems that will only be exacerbated by the stress of conducting an election under these conditions. Those stories will fit into a “stolen election” narrative, one likely egged on by Russians or others seeking to sow discord and undermine faith in our election. This will be on top of potential virus-related misinformation aimed at particular communities warning them against showing up to vote or telling them to vote at the wrong place or time.

Even worse, the need to process millions more absentee ballots without adequate funds and training means November’s election results could well be delayed. This is especially worrying in Detroit and Philadelphia, because both cities have a history of poor election administration and both of their states, Michigan and Pennsylvania, have recently adopted no excuse absentee balloting—and both states play a critical role in the outcome of the Electoral College that determines the presidency. Delay is going to lead to cries of fraud, when in fact good election administration—especially when dealing with absentee ballots—take time.

What if President Trump is ahead in Michigan and Pennsylvania on election night and he declares victory, but after millions of absentee ballots are processed a week or so later Biden is declared the winner in those states and wins the election? Will Republicans believe Trump if he claimed the later count was the result of fraud, despite all evidence to the contrary?

Meanwhile, when election fraud—as rare as it is—does actually happen in the United States, about a quarter of the time it is because of absentee ballot tampering. In some states it is legal for people to collect an unlimited number of completed absentee ballots from other voters, and that raises the danger not only of fraud but of folks on the wrong side of an election believing that fraud is happening. The kind of fraud that led the North Carolina state elections board to require a do-over of the 2018 race for the state’s ninth congressional district involved the collection and tampering of such absentee ballots. Already we are seeing the usual suspects on the right raise concerns that voter fraud will be rampant with increased vote by mail. Last week, for instance, Republican Rep. Thomas Massie (the same guy who objected to a voice vote on the federal coronavirus bill and made a majority of house members return to Washington. D.C. for a vote) tweeted that “Universal vote by mail would be the end of our republic as we know it.”

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