We’re all now party to the most critical election protection debate in U.S. history, one that has entered the coronavirus stimulus package to the tune of $400 million, which may be just a fraction of what’s really needed.
The fight is over how the 2020 election could be conducted if the coronavirus pandemic still rages on November 3. And if Donald Trump will try to cancel it altogether.
The Constitution says nothing about the possibility of a president canceling a national election. It’s never happened, not even in 1864, in the middle of our Civil War, when Abraham Lincoln beat George McClellan. (McClellan was Lincoln’s first Union Army commander, and ran as a Democrat against the war. Had Lincoln lost at Gettysburg, he would’ve lost the election.)
But this year, five primaries have already been canceled. When a court told Gov. Mike DeWine to not stop Ohio’s balloting, he got his chief health official to call it off anyway.
Trump already has sweeping national emergency powers. A move to cancel the fall election would ignite bitterly partisan warfare with no legal precedent. At least one petition already asks him not to do it. The fight would end at the U.S. Supreme Court, which has ruled 5-4 for the 1 percent in a long string of critical cases — including Iqbal (2009), Citizens United (2010), Arizona’s Clean Election Act (2011), Janus Capital (2011) and McCutcheon (2014) — since handing the presidency to George W. Bush in 2000.
The prospect of some 138 million Americans (as voted in 2016) converging on about 116,990 polling places amid a national pandemic is inconceivable. Should the coronavirus still be raging in November, the current voting system would be impossible to defend.
A major response has come with The Resilient Elections During Quarantines and Natural Disasters Act of 2020, introduced by Oregon Rep. Earl Blumenauer and cosponsored by U.S. Sen. Ron Wyden, also of Oregon, among others. The proposed legislation centers on mail-in ballots, used locally in Oregon since 1981, and statewide since 1997.
The bill warns that nationwide in 2018, more than 58 percent of all poll workers were over 60 years old, a population that is at heightened risk from COVID-19. The legislation would require all states to devise a plan for conducting their elections should large numbers of poll workers become unavailable.
If a quarter of the states declare an emergency, the bill requires all states to “offer all registered voters the ability to vote by absentee ballot.” Thirty-four states and Washington, D.C., now do that; 16 states don’t.
The Blumenauer bill would let voters request an absentee ballot electronically and receive it as an “electronic print-at-home” ballot, a method currently available to overseas and military voters.
In his draft National Pandemic-Immune Safe and Easy Voting Act, former congressional staffer Joel Segal has also proposed that paper ballots be mailed to all registered citizens by Friday, October 1. Under this plan, by Monday, October 13, all states would open voting centers apportioned by population. Here, ballots could be dropped off, and registration forms picked up. Unregistered citizens, or those who wrongly did not get a ballot, can register or re-register with staff seven days per week through November 3. Machines will be there for those with special needs. The centers will be provided with ample parking, security and expanding staff as Election Day approaches.
In fact, all of the various plans to remake how we vote would face popular and legal challenges.
Nearly all election protection activists advocate hand-marked paper ballots as the “gold standard” of any electoral system. Nearly all strongly oppose any form of internet voting as being too easily hackable.
But election protection expert Steven Rosenfeld and others also warn that voting by mail comes with real problems that would need to be addressed. Ballots can be stolen, lost or destroyed en route. Some states have allowed ballots to be brought into polling places en masse by “helpful volunteers,” a sure recipe for serious fraud.
Mail-in ballots can be useful, says voting rights activist Mimi Kennedy, but using digital scanning devices to tally them could cause problems. Without proper security, they could be hacked to produce false tallies. At the voting centers, she adds, electrical supplies need to be strongly secured to prevent power from being lost. Blackouts and glitches might mean that computers won’t always produce usable ballots on demand, or they may not properly tally the mailed-in ballots.
But even if voting by mail via hand-marked paper ballot is implemented, other forms of voter suppression are still at play.
Researchers and experts like Truthout contributor Greg Palast warn that millions of citizens of color and mostly youth have been stripped from the registration rolls in the lead-up to 2020. And voter ID laws further limit the franchise. In Texas, for example, you can register using a gun license, but not a student ID.
In practical terms, on the federal level, plans like those proposed by Blumenauer and Segal would only reverse some of the effects of these forms of voter suppression, but they could still vastly expand the franchise for youth and voters of color.
The stimulus package now includes a $400 million proviso to be spent toward using paper ballots in the fall election. The prestigious Brennan Center for Justice estimates $2 billion is what’s really needed for a secure paper-based fall election. The battle over exactly how that money would be spent will be fierce.
But except for setting the date of presidential elections (the first Tuesday after the first Monday in November, i.e., November 2-8) the Constitution leaves the conduct of even federal elections almost entirely to the states. The states still have the right to reform their own systems. Many may try to do so along the lines of the Blumenauer or Segal plans. Now that at least some federal money may be forthcoming, debate over hand-marked and counted paper ballots, voting by mail, extended early voting, and more is likely to continue to rage right up to Election Day.
The question of canceling the election altogether will undoubtedly depend on whether Trump believes he can win outright on November 3, or whether he believes he needs to cancel to stay in power. His ability to do so would almost certainly be decided by the Supreme Court.
In the meantime, the coronavirus pandemic has intensified an already hot fight at both the state and federal level as to how to best conduct our national vote in 2020. It’s a battle that will be overshadowed throughout by the question of whether the election will happen at all.
Note: This article has been updated to reflect that the Senate has passed the stimulus package with $400 million in election assistance for states.
Attorney Bob Fitrakis is a professor of political science at Columbus State Community College and an election protection investigator. He edits The Free Press, where his “Fitrakis Files” appear, along with numerous books co-written with Harvey Wasserman.