HOUSTON (CN) — With Election Day fast approaching, the Covid-19 pandemic has underscored a central question seemingly destined for a decision by the U.S. Supreme Court: Will states let all voters cast absentee ballots, given concerns about spreading the virus?
The absentee ballot question is just one of many questions swirling around the 2020 presidential election.
Will states be able to find enough volunteers to usher voters through the polls? Many poll workers are elderly, a group at high risk for Covid-19 health complications.
Wisconsin called in 2,400 National Guard troops to staff the polls for its April 7 primary election, a move voting-rights advocates say should not be duplicated.
“Members of the National Guard can have an intimidating effect inside our nation's polling sites and discourage some voters from feeling able to freely cast their ballots … Particularly voters of color,” said Kristen Clarke, president of Lawyers’ Committee on Civil Rights Under Law, a Washington, D.C.-based nonpartisan organization.
“There are also concerns with deploying people who may not be sufficiently trained and experienced to manage poll sites,” Clarke said in an email.
Will states disinfect voting machines between voters so the virus cannot pass from one to the next? This could slow the process down so much that people get tired of waiting and decide not to cast their ballots.
As in so many U.S. political fights, California and Texas stand at opposite ends of the blue and red spectrum regarding absentee voting.
California, led by Democrats, recently announced it will be sending absentee ballots to all the state’s registered voters.
Texas has appealed a judge’s April 15 injunction ordering the state to provide mail-in ballots to anybody who requests one.
Travis County District Court Judge Tim Sulak sided with the Texas Democratic Party, which brought the lawsuit seeking to expand absentee voting in the state and found that fear of contracting Covid-19 at the polls constitutes “a sickness or condition that prevents the voter from appearing at the polling place on election day,” which is the Texas Election Code’s definition of a disability.
Led by Texas Attorney General Ken Paxton, a Republican, Texas claims in its appellate brief the code’s definition does not extend to all Texans fearful of catching the virus.
“The integrity of our election process must be maintained, and the law established by our Legislature must be followed consistently. Unlawful expansion of mail-in voting, which is a special protection made available to Texans with actual disabilities, will only serve to undermine the security of our elections and to facilitate fraud,” Paxton said Monday in a statement.
The Texas Democratic Party is taking a shotgun approach with litigation challenging multiple facets of the voting process.
It has sued state officials six times since last October over laws it says the Republican-led legislature and Republican Governor Greg Abbott passed to disenfranchise Democratic-leaning minority and young voters.
"When a political party's ideas no longer enjoy the majority support of the voters, there are two options: change your policies or change the voters,” said Abhi Rahman, the Texas Democratic Party’s communications director.
“Republicans in Texas have cynically chosen to make it harder for younger and minority voters because preventing people from being able to vote is the only way they can hold power."
Like Paxton, President Donald Trump is against widespread mail-in voting because he believes it is an invitation for fraud.
Trump will play a pivotal role in resolving another question looming over the November 2020 elections: Absentee ballots are supposed to be distributed and returned by the Postal Service but the agency says without a bailout from Congress it will run out of cash by September.
If the Postal Service goes bankrupt before November, it may not be able to handle absentee ballots. Will Congress provide the billions of dollars Postal Service leaders say it desperately needs to stay afloat?
Trump has not minced words in his opinion of the Postal Service, which he says is being exploited by Amazon. “The Postal Service is a joke because they’re handing out packages for Amazon and other internet companies and every time they bring a package, they lost money on it,” he said last month.
Trump says he will not approve any aid or loans to the Postal Services unless it drastically increases its package-delivery rates.
Clarke, the voting-rights advocate, said, “A functioning USPS is critical to the state of democracy in 2020.”
On a press call Monday, Clarke highlighted her group’s efforts to expand voting access through litigation.
The nonprofit is representing the Tennessee branch of the NAACP and other civil rights groups in a lawsuit challenging Tennessee’s mail-in ballot rules.
Akin to the Texas Democratic Party’s bid to expand mail-in voting in Texas, the Lawyer’s Committee claims in a May 1 federal lawsuit that Tennessee law violates voters’ due process rights by narrowly limiting who is eligible for absentee voting, not including those afraid of catching Covid-19.
Ezra Rosenberg, co-director of the Lawyers’ Committee’s Voting Rights Project, said he wants all “vulnerable populations” to be afforded the option to vote by mail in Tennessee.
“Right now, virtually everyone is part of a vulnerable population when it comes to Covid-19,” he said on the conference call.
The U.S. Supreme Court has already stepped into the absentee ballot fray once this year.
In a 5–4 unsigned ruling, the court’s conservative majority nixed a federal judge’s order for Wisconsin’s counties to accept mail-in ballots until April 13, six days after the state’s April 7 primary elections.
With coronavirus fears at a fever pitch heading into the election, around 1 million more Wisconsin voters than usual requested absentee ballots. But the state did not have the resources to process them all before the deadline.
Critics say the Supreme Court forced voters to choose between their health and their voting rights.
“It was most unfortunate to see the Supreme Court interject itself in the Wisconsin fiasco. No doubt the court’s 11th hour ruling suggests that we may see this court interject itself unnecessarily in other state election battles this season,” Clarke told reporters on Monday.
But there may be a silver lining in the ruling for absentee-voting advocates, as the majority said they denied the extension in Wisconsin because Supreme Court precedent advises courts should not ordinarily alter election rules on the eve of an election.
If a challenge seeking to expand mail-in voting in Texas or Tennessee gets to the high court weeks before Election Day, it may finally answer the question: Do Covid-19 concerns justify giving all voters the right to mail in their ballots?
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