Voter Rights Amidst Crisis: The Repercussions of COVID-19
According to an early projection by Richard Hasen, an election law expert at the University of California, Irvine, “2020 [was set to] see a record level of election-related litigation” [1]. That prediction was made long before the COVID-19 crisis left the nation scrambling to adapt to the realities of election season in the midst of a pandemic. In the recent weeks, a flurry of legal battles have erupted across the nation—in Nevada, Oklahoma, Arizona, Virginia, Florida, and various other states—over voting rights, absentee ballot requirements, and vote-by-mail protocol [2]. The state of Wisconsin has played host to a number of key cases over the course of this debate and has served as a pivotal testing ground for national voting procedures in the upcoming elections.
On April 6, 2020, Republic National Committee v. Democratic National Committee, in which plaintiffs pushed for an extension of the Wisconsin absentee ballot voting deadline, became the first coronavirus related case decided by the Supreme Court [3]. In a narrow 5-4 ruling, the court held that “extending the date by which ballots may be cast by voters fundamentally alters the nature of the election,” and declined to mandate an extension on the required postmark date for absentee ballots [3]. The controversial decision therefore maintained the deadline for the Wisconsin primary elections in April, which evoked widespread criticism amidst fears of voting inaccessibility and heightened infection rates. The 5-4 split on the bench, which decisively divided justices appointed by Democrat and Republican presidents, seemed a harbinger of the court’s potential difficulties in resisting politicization on the COVID-19 election issue.
In addressing Republic National Committee v. Democratic National Committee, the court majority refrained from rendering a verdict on the general nature of elections during the COVID-19 pandemic. The decision was explicitly classified as a response to a “narrow, technical question,” which must not be conflated as an “opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate” [3]. This interpretation of the case was hotly contested by Justice Ginsburg’s dissenting opinion, which held that Republic National Committee v. Democratic National Committee concerned a far broader issue. “The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” wrote Ginsburg, further arguing that the majority’s stay failed to assure fair election procedures [3]. Where the conservative majority aimed to qualify the scope of the case, Ginsburg’s dissent alluded to the more expansive topic of voting rights. Given the publicity of the Wisconsin case and the contention of the decision, Republic National Committee v. Democratic National Committee catalyzed national discord over election practices in the wake of COVID-19.
In Wisconsin, Republic National Committee v. Democratic National Committee was the apotheosis of a wider debate over election procedures and voter equity during the coronavirus pandemic. In the leadup to the April Supreme Court ruling, the Wisconsin State legislature had decided against postponing voting, only for Wisconsin Governor Tony Evers to issue an executive order mandating a delay, which was rejected in turn by the state Supreme Court [4]. Between the G.O.P. controlled legislature, Democratic Governor, and conservative state Supreme Court, the partisan conflict over voting rights had been largely dictated by political affiliation: many Democrats had endorsed universal vote-by-mail, while many Republicans had pushed for maintained in-person polling.
More recently, on May 18, 2020, a coalition of advocacy groups including Black Leaders Organizing for Communities and Disability Rights Wisconsin filed a federal lawsuit calling for changes in the August primary and November general elections. The proposed measures included absentee ballots for all voters, revisions to the voter registration process, and increased personnel at polling centers, as well as other changes intended to upgrade voting protocol. The plaintiffs cited failures in the absentee ballot and in-person voting processes as sources of disenfranchisement, and claimed that the April Wisconsin elections had “forced [voters] to choose between forgoing their constitutional rights to participate in their democracy or risking the health of themselves and their loved ones” [5]. The recent case also alleged that the April election process had violated the Voting Rights Act, the First and Fourteenth Amendments of the U.S. Constitution, and the Americans with Disabilities Act by disproportionately restricting specific populations from casting ballots. In requesting injunctive relief, the plaintiffs aimed to modify future Wisconsin election procedures in adaptation to the constraints of social distancing and the risk of viral infection.
The District Court is now confronted by many of the same challenges that the Supreme Court faced at the beginning of April. In its verdict, it must decide whether the case at hand concerns a specific or broad issue, how elections should occur during a pandemic, and whether the proposed changes are merited. Again, as was the case with Republic National Committee v. Democratic National Committee, the ongoing federal lawsuit will likely influence election procedures across the nation. If the courts fail to update election procedures, it could leave casting a ballot inaccessible for thousands of Americans and fundamentally undermine voting rights. With a plethora of active lawsuits awaiting decision, and the 2020 presidential elections on the horizon, this latest Wisconsin case will play an instrumental role in the national debate over voting rights during the coronavirus pandemic.
[1] Hutzler, Alexandra. “2020 Was Already Expected to Be A Record Year ... - Newsweek.” Newsweek. Newsweek, April 23, 2020. https://www.newsweek.com/2020-was-already-expected-record-year-election-related-lawsuitsthen-coronavirus-happened-1499900.
[2] Fessler, Pam. “The Legal Fight Over Voting Rights During The Pandemic Is Getting Hotter.” NPR. NPR, May 2, 2020. https://www.npr.org/2020/05/02/849090889/the-legal-fight-over-voting-rights-during-the-pandemic-is-getting-hotter.
[3] Republican National Committee, et al. V. Democratic National Committee, et al. (Supreme Court of the United States April 6, 2020).
[4] Liptak, Adam. “Supreme Court Blocks Extended Voting in Wisconsin.” The New York Times. The New York Times, April 7, 2020. https://www.nytimes.com/2020/04/06/us/politics/supreme-court-voting-wisconsin-virus.html.
[5] Swenson v. Bostelmann – Complaint (United States District Court for the Western District of Wisconsin May 18, 2020).
[6] Bauer, Scott. “Sweeping Federal Lawsuit Seeks Election Changes in Wisconsin amid COVID-19 Pandemic.” Journal Times, May 19, 2020. https://journaltimes.com/news/state-and-regional/govt-and-politics/sweeping-federal-lawsuit-seeks-election-changes-in-wisconsin/article_8c2d8fca-6639-59da-92bf-f1e0d9059b04.html.