I have posted this draft on SSRN, which takes into account recent troubling developments in COVID-related voting cases in the Fifth Circuit, Sixth Circuit, and Texas Supreme Court. Here is the revised abstract:
The COVID-19 global pandemic, which already has claimed over 100,000 lives in the United States by the end of May 2020, revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.
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 and the Supreme Court’s recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines which sided against expanded voting rights, there is room for some hope that at least some courts will provide 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. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.
More significantly, court intervention can only go so far, 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. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.