Document Type

Article

Publication Date

2020

Disciplines

Constitutional Law | Election Law | Law

Center/Program

Center for Constitutional Governance

Abstract

In just a few short months, the COVID-19 pandemic has already provoked multiple election law disputes. These have tended to track the same normative and policy conflicts that have marked election law for years, particularly the tension between strict adherence to preexisting rules and the willingness to stretch or relax those rules in order to deal with emergency conditions, and the overlapping debate over whether the primary threat to the integrity of the electoral system is fraud or the legal and administrative obstacles to voting during a pandemic. A third, but much less discussed, strand in the emerging COVID-19 election law jurisprudence is the role of local elections officers, often in conflict with state officials, in protecting the right to vote. Tracking the state-local conflicts that have marked the governmental response to the pandemic generally – as well as the red state/blue city disputes over a host of hot-button issues over the last decade – local election law officials in a number of states have sought to find some play in the election-law joints in order to make it possible for voters in their jurisdictions to vote safely in pandemic conditions, while state officials have pushed back, insisting that these county registrars, clerks, or recorders are acting beyond their authority and in violation of state law.

Comments

Originally appearing in the University of Chicago Law Review Online, 2020 U. Chi. L. Rev. Online 11. Reprinted with permission from the University of Chicago Law School.

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