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COVID-19 and the 2020 Election

a man wearing a face mask is putting an envelope that says vote by mail on it into a mailbox

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This year’s presidential election will take place under unprecedented conditions, as the entire country will vote during a public health crisis. The primaries provided a preview of the potential successes and chaos that may be associated with various approaches to voting. In some states, like Iowa, voters who had concerns about contacting the virus by voting in person could vote by absentee ballot. In other states, like Texas and Wisconsin, there was litigation that had mixed results, with some residents permitted to vote by mail and others required to choose between exercising their right to vote and risking exposure to the coronavirus. In the Wisconsin case, the Court declined to extend the deadline for absentee voting, noting that the “wisdom of that decision is not the question before the Court.” Republican Nat'l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1206 (2020). In a dissent joined by Justices Breyer, Sotomayor, and Kagen, Justice Ginsburg expressed fear that the Court’s order, “will result in massive disenfranchisement.” Id. at 1211.

States like Kentucky closed many voting locations, leading to very long voting lines for many people who chose to vote in person. Some states that used mail-in ballots or a combination of in-person and mail-in ballots did not have the election results until several days later. As voters tried to navigate the election rules, one message was clear: voters want to vote safely, and they want their vote to count.

The Supreme Court has already weighed in on several emergency voting challenges during the primaries. In April, as described above, the Supreme Court granted a request by the Republican National Committee and the Republican Party of Wisconsin to block a lower-court order that had extended the deadline to submit absentee ballots. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020).  In June, the Court turned down a request by the Texas Democratic Party and four individuals to reinstate a district court’s injunction that would have permitted all eligible voters in Texas to vote by mail for the 2020 general election. Texas Democratic Party v. Abbott, 140 S. Ct. 2015 (2020). Six days later, in another 5-4 ruling, the Court stayed a district court’s preliminary injunction that would have made it easier for people in three Alabama counties to vote by absentee ballot. Merrill v. People First of Ala., No. 19A1063, 2020 WL 3604049 (U.S. July 20, 2020). Because they were each heard on an emergency basis, the Court did not hear oral argument in any of these cases and provided little-to-no reasoning in the opinions.

The Supreme Court is likely to decide several cases under emergency review on voting rights issues before the election. Many of these cases are already pending in courts across the country. For example, NAACP Minnesota-Dakotas Area State Conference v. Simon, No. 62-cv-20-3625 (Minn. Dist. Ct., Ramsey Cty.), is one of three challenges to Minnesota’s absentee voting laws. In that case, AARP and AARP Foundation filed an amicus brief supporting the plaintiffs, who include two older voters (ages 77 and 87, respectively) seeking non-enforcement of a State requirement that absentee ballots be witnessed by a registered voter or notary public (Witness Requirement).  They also sought an order directing the Secretary of State to send an absentee ballot to all registered voters statewide because of the dangers posed to voters by the COVID-19 crisis. In this case, the parties agreed to a consent decree whereby the Secretary of State agreed not to enforce the Witness Requirement for the August State primary and to allow absentee ballots to be postmarked by Election Day and to be received within two days of in-person voting. The parties then reached another agreement related to the general election providing for non-enforcement of the Witness Requirement and counting of absentee ballots postmarked by Election Day and received within seven days thereafter. The state Republican Party and the Trump campaign intervened in the two related cases to appeal the district court’s approval of the consent decree for the general election, but then later withdrew that appeal. As a result, the consent decree became final and the Witness Requirement will not be enforced in November.

Minnesota is one of twelve states whose election laws impose a Witness Requirement for casting an absentee ballot. For state primary elections, such laws have been set aside, due to COVID-19, in Virginia and Rhode Island by consent decrees agreed to by state officials and by court order in South Carolina. The Court declined a request by the Republican National Committee to overturn the district court’s approval of the consent decree suspending the Witness Requirement in Rhode Island.

As the coronavirus continues to create challenges to gathering in public settings, more states will have to decide how to ensure that their pandemic election rules do not disenfranchise voters. Any legal challenges will quickly make their way to the Supreme Court.