Ballot box battles are more high-stakes than ever

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A polling official instructs voters waiting in line in one of the few polling places open on April 7 in Milwaukee after most were consolidated due to a shortage of poll workers fearful of contracting COVID-19. Photo by Scott Olson/Getty Images.

As the Democratic primaries wind down and the general election approaches, America faces an unprecedented test of its electoral system. Dogged by the threat of Russian interference, plagued by allegations of voter suppression and shadowed by the specter of a deadly pandemic, the November election promises a perfect storm of controversy, conflict and lawsuits.

Election-related litigation is nothing new. But in recent years, voting rights advocates have been filing lawsuits in earnest as quickly as states erect impediments. These efforts have had mixed results, with battles won on one front and ground lost on others. In many ways, voter suppression is like fighting malware—as soon as one threat is fixed, a novel one is created to attack.

Same song, different tune

Blocking the right to vote is as American as apple pie. The U.S. has a long and notorious history of disenfranchisement—primarily targeting people of color, the young, senior citizens and the poor. While there are no poll taxes or literacy tests at election sites today, voter suppression tactics have nonetheless proliferated, with some of the same old tricks ginned up with modern twists.

Restrictions on voting rights include reducing polling locations—primarily in minority neighborhoods and on college campuses; crippling Voting Rights Act oversight; creating oppressive voter ID laws; hampering voting access on Native American reservations; enforcing fines and fees on reenfranchised ex-felons; and purging voter rolls. Although lawyers are challenging suppression efforts in courts across the country, they face a losing battle if judges don’t uphold citizens’ rights.

Over the years, court fights over ballot access have become a bitter partisan cage matches. Political parties recognize that winning or losing usually depends on who controls local election rules, which in turn hinges on control of state legislatures and gerrymandering in a continuous power loop.

Mailing it in

In addition to the myriad problems already plaguing state election infrastructures, the coronavirus poses an existential threat. Look no further than Wisconsin’s April election, where the combination of a pandemic, a Democratic presidential primary and a hotly contested state supreme court seat caused a frenzy of litigation and 11th-hour chaos.

Across Wisconsin, the threat of contagion resulted in a paucity of poll workers and polling places. Conflicting directives on absentee voting meant many residents didn’t request mail-in ballots far enough in advance. At the last minute, Gov. Tony Evers issued an executive order changing the election date to protect the health of Wisconsin citizens. For Republicans, changing the election date, which might benefit Democratic turnout, was a nonstarter. Instead, the Republican Party of Wisconsin sued to force the country’s most dangerous election to go forward.

On the eve of the election, the U.S. Supreme Court waded into the fray, overruling determinations by a federal district court and the Chicago-based 7th U.S. Circuit Court of Appeals that absentee balloting could extend for a discrete time after the election—to protect those who hadn’t received their ballots and to prevent contagion. Instead, the court’s conservative majority created new rules: Absentee ballots had to be postmarked by election day and received within six days after the election in order to be counted.

Ordinarily, lower courts are given deference in emergency stay requests. But the Supreme Court’s recent history has evinced a troubling pattern of deferring not to its federal bench but to a particular political party. In a dissent signed by the liberal wing of the court, Justice Ruth Bader Ginsburg decried the decision, writing: “The court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.” She also warned the order “will result in massive disenfranchisement.”

But that was precisely the goal. The court’s party-line decision meant voters without the apocalyptic prescience to request an absentee ballot weeks in advance would have to either risk their lives at the polls or forfeit their right to vote. On election day, masked voters stood in line for hours at the polls, including many who’d requested absentee ballots they never received.

The court’s conservative justices insisted the decision addressed “a narrow, technical question about the absentee ballot process” and a district court’s jurisdiction in such scenarios, chastising last-minute interference by federal judges in state electoral processes, then interfering at the last-minute in state electoral processes.

NAACP Legal Defense and Educational Fund President and Director-Counsel Sherrilyn Ifill called the court’s ruling “unconscionable” and “one of the most cynical decisions I have read from this court—devoid of even the pretense of engaging with … reality.”

A brewing battle

With Wisconsin as a cautionary tale, Democrats are pressing to expand early voting for the general election and for a nationwide vote-by-mail system. But the logistical challenges, and cost, are daunting. According to the New York Times, five states—Colorado, Hawaii, Oregon, Utah and Washington—already have all-mail elections, where ballots are automatically sent to every registered voter. Arizona and California allow voters to add themselves to a permanent list for mail-in voting. But absentee balloting is far from widespread.

The Trump campaign has launched a multimillion-dollar legal effort to block attempts to implement nationwide mail-in ballots, and the president has expressed concerns that allowing more absentee voting would increase Democratic turnout and hurt Republican candidates—a debunked but revealing commentary.

Trump and Republican strategists have falsely alleged that voting by mail increases voter fraud. Meanwhile, Trump admitted he voted by mail in Florida’s March primary.

“We have a different value system about what voting means to a democracy,” Speaker of the House Nancy Pelosi (D-Calif.) said of her bloc’s efforts to expand mail-in voting. “Clearly, we want to remove all obstacles to participation.”

It’s a tall hurdle. Although voting may be a cornerstone of the rule of law, the idea of representative democracy in the United States—one person, one vote—is a chimera. Voting rights aren’t even protected in the U.S. Constitution. But that hasn’t stopped the fight against voter suppression in all its forms.

Activists are carving paths for more widespread participation wherever they can.

And however they can. After the Supreme Court’s Wisconsin decision, University of California at Irvine law professor Rick Hasen, writing at his Election Law Blog, made a dire forecast: “The message from today is: Don’t expect the courts to protect voting rights in 2020.”

This article appeared in the June/July 2020 issue of the ABA Journal under the headline: “Voting Fights: Ballot box battles are more high-stakes than ever.”

Intersection is a column that explores issues of race, gender and law across America’s criminal and social justice landscape.

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