Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them

Abstract

The COVID-19 global pandemic, which already has claimed over 150,000 lives in the United States by the end of July 2020, has 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 decision making. 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 a 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 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.

Signed, Sealed, and Delivered with Trust: Non-Resident Citizens’ Experiences of Newly Adopted Postal Voting

“…The second approach, a temporary suspension of the witness requirement, offers the simplest solution to the problem. This solution was applied in the United States during the pandemic, with some courts weighing cases in favor of voting rights (Hasen, 2020). More research is needed to scrutinize which practices, if any, make it possible to maintain lawfulness and a high level of electoral integrity in settings in which postal voting takes place without witnesses.…”

“Culture and practice eat documents for lunch:” Norms and procedures in the 2020 election cases

“…181–214), centers on the minutiae of electoral litigation (Dorf, 2020), celebrates the judiciary for its rulings (Levi et al, 2021, pp. 8–13), or situates the election litigation in a broader context of American voting rights (Hasen, 2020, pp. 263–288).…”

“…In particular, some of the decisions of the Roberts Court in election‐related cases have weakened democratic competition. As Richard Hasen, a prominent scholar of US election law, suggested, SCOTUS has “give[en] political actors freer range to pass laws and enact policies that can help entrench politicians—particularly Republicans—in power and insulate them from political competition” (Hasen, 2020, p. 50). The Supreme Court has been implicated in “constitutional retrogression,” according to another critique (Huq & Ginsburg, 2018, p. 83) and even “enabled or accelerated democratic backsliding” including, but not limited to, First Amendment cases on speech, free exercise, and establishment clause issues (Huq, 2022, p. 54).…”

Presidential Nominations from Active Cabinet Ministers: A Delicate Balance between the Interpretation of Constitutional Court Decisions and Political Interests

“…This apprehension is not unfounded as ministers who become candidates could potentially misuse their power. 47 The improper use of authority, or "abuse of power," as defined by Philipus M. Hadjon, involves officials deviating from the objectives of their authority for unrelated purposes. In this context, it implies that a minister-cum-candidate might use their ministerial authority for personal electoral gain, straying from their original mandate of serving the public.…”