The coronavirus is wreaking havoc on our country in a myriad of ways. Federal, state and local governments are scrambling to make sure citizens are protected from the virus and unnecessary risks aren’t being taken. That is, except in the state of Wisconsin.
Gov. Tony Evers, a Democrat, tried to stop his state’s primary from continuing on Tuesday, but the state Supreme Court invalidated his order and concluded that he had exceeded this authority. As a result, residents across the state are going to the polls, with turnout expected to be mostly depressed.
The latest developments regarding Wisconsin’s ill-planned and ill-fated election make clear that lawmakers must act immediately.
The latest developments regarding Wisconsin’s ill-planned and ill-fated election make clear that lawmakers must act immediately to implement plans to allow eligible voters to cast ballots in this or similar crises without endangering their health or the health of others.
We do not know what the world will look like seven months from now, when Election Day arrives. But we do know that it is time for states to start planning to protect the right to vote.
If, as many experts have predicted, there is a second wave of COVID-19 in the fall, it will be untenable to pack voters and poll workers into polling places. Many states postponed their primary elections or moved to all vote-by-mail elections as they triage the current election cycle. But others, including Florida and Arizona, kept polls open in March. This uneven response speaks to our unpreparedness during the primaries — and our need to get smart, fast, as we head toward the general election.
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The first and most obvious solution is to increase the ability of voters to vote by mail. Some states require voters to submit an application or request an absentee ballot before one is mailed to them. Those states should make their applications available online, via e-email, and proactively send applications to voters via snail mail. Some states require that voters provide a reason or excuse before obtaining an absentee ballot. Those states should make it clear that the threat of becoming ill from COVID-19 is a sufficient excuse. And all states should ensure that they have the infrastructure in place to provide and process the expected deluge of vote-by-mail ballots.
The second solution is to allow for more early voting at more polling places. This would allow voters and poll workers to maintain physical distance while still casting their ballots. A certain number of people could be let in at a time, and they would be spaced apart in the polling place.
So let’s talk about what is actually happening on the ground in Wisconsin.
First the governor called a special session and asked the Republican-controlled Legislature to pass a bill to allow voting by mail for this election, send ballots to all registered voters who had not yet received or requested a ballot, and postpone the day that ballots had to be received.
The Legislature refused, leaning on tired, unpersuasive and discredited arguments about such legislation creating the potential for confusion and voter fraud, and the need to fill state and local positions that were also on the election ballot.
Then Evers took the audacious step of going around the Legislature. He issued an executive order suspending and postponing in-person voting until June. The order was promptly challenged by Republicans in the Legislature. The Wisconsin Supreme Court, ruling along ideological lines, found that Evers had exceeded his authority under state law.
But that is not the end of the legal wrangling. At almost the same time that the Wisconsin Supreme Court was ruling on Evers’ executive order, the United States Supreme Court overturned, again along ideological lines, a lower court decision that had extended the time for Wisconsin voters to return absentee ballots.
Practically speaking, if Wisconsin voters do want to vote in person on Tuesday, they might have problems finding an open polling place. Milwaukee typically has 180 polling places, but reports are that it will only have a handful. Second, if you are one of about 10,000 people who applied for an absentee ballot but have yet to receive it, you are out of luck.
It is apparently now worth stating the obvious: No person should have to choose between exercising their right to vote and facing a real and immediate threat to their health and safety. No person should have to go against the advice of medical professionals and leave their homes because they do not want to forgo the ability to weigh in on who their nominees, representative or judges will be.
Trump, on expanding voting: “They had levels of voting, that if you ever agreed to it you’d never have a Republican elected in this country again.” pic.twitter.com/ly4LYQqmo8
— Jacques Calonne (@JacquesCalonne) March 30, 2020
The fact that voters might be asked to do this has little to do with the law and a lot more to do with political power. Republicans know that lower voter turnout helps their candidates. President Donald Trump has acknowledged that implementing more robust vote-by-mail opportunities would harm Republicans chances of winning elections. As Trump said on “Fox and Friends” in March, “They had things — levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”
It is possible, but highly improbable, to read Trump’s comments as a warning about voter fraud, which is largely a myth pedaled by those seeking to depress voter turnout. But other Republicans have said similar things. Senate Majority Leader Mitch McConnell, R-Ky., described making Election Day a federal holiday, which would also increase voter turnout, as a Democratic power grab.
Politicians should not use the mechanisms of election administration to determine the winners of the contests. But the window for states to take meaningful action to protect the right to vote is closing. The news from Wisconsin provides a cautionary tale. States should expand opportunities for voting by mail and/or early voting now so that voters are not forced to rely on potentially partisan judges to protect their rights later. If Wisconsin teaches us anything, it is that the judiciary cannot be relied upon to protect your right to vote.
Jessica Levinson is a professor and the director of the Public Service Institute at Loyola Law School, Los Angeles. Her work focuses on election law and governance issues. She is the former president of the Los Angeles Ethics Commission.