With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law.
The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, of course, often occur at crowded polling places during contested elections. Although many states managed to move their late March and April elections to May, June, or later without incident, heated political and legal battles broke out in Ohio and Wisconsin over changing election dates and formats, with the Wisconsin dispute winding up in both the state and United States Supreme Courts the day before the election, and Wisconsin conducting an in-person election in the middle of a pandemic.
The second part looks beyond the immediate effects of COVID-19 to the middle term, that is, to the host of changes to election laws that will be needed for the November 2020 election if, due to the pandemic, large gatherings remain a public health threat. Some form of primarily vote-by-mail system will be needed, but such a system is currently in place only in five states, and those states took several election cycles to make the transition from traditional polling-place voting. Indeed, right now, one-third of the states permit only voters with one of a limited number of excuses specified in the states’ statutes to obtain a mail-in ballot. Widespread changes in voting laws will be necessary if the November elections are to be safe, fair, and secure. Yet, partisan opposition encouraged by President Trump’s error-filled misstatements about voting-by-mail makes it unclear whether these changes will be made.
Constitutional Law | Courts | Election Law | Health Law and Policy | Law | Supreme Court of the United States
Center for Constitutional Governance
COVID-19 and the Law: Elections,
Law in the Time of COVID-19, Katharina Pistor, Ed., Columbia Law School, 2020
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2684