Cameron Kistler and Nanya Springer in Slate:
We’re arguing in court that a failure to take reasonable precautions to protect voters from COVID violates Section 11(b) of the Voting Rights Act, which makes voter intimidation illegal regardless of whether anyone intended for voters to be intimidated. The federal court in the Bogalusa case—along with other federal courts considering similar cases in Terrell County, Georgia, and Dallas County, Alabama—recognized that federal judges can indeed compel local officials to protect voters from intimidating forces that deter voting. In this case, the court would be ordering election officials to provide communities with in-person and absentee voting options that are safe from a virus rather than from the Klan.
There are plenty of ways the courts could ensure voters are safe. As in the Bogalusa Voters League case, federal courts could order election officials to commit to a plan to ensure safe and easy voting in 2020, particularly in those jurisdictions that have historically disenfranchised the very same minority voters who likely face the highest health risks from electoral participation this year. And if that’s not enough, a court could go further and order elections officials to take specific measures such as, for example, setting up polling places to minimize transmission risks, ensuring that poll workers wear masks, and mandating absentee ballot drop boxes. Moreover, to the extent that state law (and not merely bureaucratic inertia) is responsible for unsafe voting conditions—such as is likely the case with many rules requiring in-person witnesses to absentee ballot signatures, as well as rules requiring an excuse before voting absentee—the court could determine that the need to comply with the Voting Rights Act supersedes state law. If done right, such an order would help to ensure that no voter is forced to choose between voting and personal safety in 2020.