I have posted this draft on SSRN, which is a work in progress aimed at a moving target. Comments welcome. Here is the abstract:
The COVID-19 global pandemic, which already has claimed approximately 90,000 lives in the United States as of mid-May 2020, revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States. For example, whether someone who fears contracting COVID-19 at a polling place will be able to vote by mail successfully in the November 2020 presidential election will depend upon where that person lives; how legislative, administrative, and potentially judicial bodies acting in a highly polarized atmosphere have interpreted laws related to absentee balloting; the ability of local election officials to process an expected flood of requests for absentee ballots; the ability of voters and of the United States Postal Service to return those ballots before the deadline for receipt; and the capacity for election officials to properly count those votes. The recent fight over a potential delay in the April 7 Wisconsin primary in light of the pandemic does not instill confidence that American voting rights will be protected in the November 2020 elections.
The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decisionmaking. Third, constitutional protections for voting rights remain weak.
Despite these three pathologies, the insufficient progress correcting them twenty years after the Florida debacle culminating in Bush v. Gore, and the polarized, disappointing path of the Wisconsin primary and the Supreme Court’s decision concerning Wisconsin ballot receipt deadlines, there is room for some hope that courts will provide a good measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation “the Democracy Canon,” an old canon of judicial interpretation counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights.
Court intervention can only go so far, however, and long term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections.