By Dessie Otachliska
The 2020 Presidential election promises to be unlike any in history. The country is still in the midst of a global pandemic, which has already claimed the lives of more than 220,000 people nationwide and created the worst economic recession in recent history. As of October 25, 2020, forty-six states still have some COVID-related restrictions in place. Despite that, COVID infections are rising in thirty-two states, and a potential vaccine remains months away from viability. But this election is unique for other reasons. A week before November 3, it had already become the most litigated election in American history. In the last six months alone, over 414 COVID-related election law cases have been filed in forty-four states. With a substantial number of cases filed in swing states like Florida, Pennsylvania, and Wisconsin, courts have been called to decide contested and timely questions surrounding polling place procedures, deadlines for absentee ballots, and witness and notarization requirements for absentee ballots, to name just a few. The question that will likely remain unresolved for months, if not years, after the election is to what extent such litigation will shape the results of the 2020 presidential election.
Doctrinally, most COVID-related election litigation falls into one of two categories: (1) as-applied constitutional challenges to existing voting regulation and (2) lawsuits against states easing voting restrictions during the pandemic. The basic premise of the lawsuits in the first category is that, while the challenged regulations do not unconstitutionally burden voting under normal circumstances, the circumstances surrounding the pandemic render the restrictions unduly cumbersome for the average voter. Examples of challenged regulations in this category include restrictions on absentee voting, deadlines for returning ballots, and signature requirements.
In deciding such cases, courts apply what is known as Anderson–Burdick balancing — a unique sliding scale scrutiny approach that combines First Amendment and Fourteenth Amendment doctrine. Under the Anderson–Burdick test, courts can protect the right to vote against challenges that are not specifically provided for by other constitutional amendments, such as the Fifteenth (race), Nineteenth (sex), Twenty-Fourth (wealth), or Twenty-Sixth (age). Courts weight the severity of the burden imposed by a given voting regulation against the magnitude of the protective interest asserted by the state to justify its imposition. The more severe the burden on the right to vote, the heavier the burden on the state to legitimize it. Severe burdens are examined under strict scrutiny, while mild burdens typically receive rational basis review.
A big question facing courts in these cases is whether external circumstances like the pandemic should be taken into account when evaluating the burden on voting. Some courts have refused to consider the impact of COVID-19, reasoning that it would not be fair to blame the government for exigent circumstances that make otherwise benign regulation more burdensome. As such, these courts have confined their analysis to the four corners of the regulation, regardless of any additional burden imposed by the COVID. Most courts, however, have taken the opposite approach, finding that the global pandemic and its associated health risks and logistical complications are an integral part of the analysis.
Still, questions remain. For instance, how should courts evaluate the burden on voting in cases where almost all voters could satisfy a given regulation, but it is likely that many will not? The prime example here is deadlines for returning absentee ballots. While it is true that most, if not all, voters who have received an absentee ballot in time could technically return the ballot before the stated deadline, the reality is that the pandemic has presented a plethora of logistical challenges that makes compliance more difficult. Further complicating this analysis are broader concerns around election administration that may put pressure on courts to avoid both causing further delays and appearing partisan in what is already an extremely divisive election. Similarly, how should courts address regulations that impact various groups of voters in different ways because of the virus? This is the case with high-risk populations. While most voters would likely not be greatly burdened by a requirement to vote in person even during the pandemic, assuming precautions like personal protective equipment and social distancing are in place, the same is not true for voters who have underlying health conditions or are in other high-risk groups.
Even if courts identify a consistent standard for evaluating the severity of the burden on the right to vote in the pandemic, there are additional COVID-related questions presented in the second step of the Anderson–Burdick analysis — the state justification for a proposed regulation. The most commonly used justification for regulations impacting the right to vote is the state’s antifraud interest. Courts have upheld voter identification laws, restrictions on absentee voting, and signature requirements based on the government’s stated interest of minimizing the potential for voter fraud. However, even in such cases, there has been no empirical showing that this alleged voter fraud exists in practice. So the question remains — given the severe threat of disenfranchisement, is a purely theoretical concern about voter fraud justify enough?
The second category of COVID-related election litigation pertains to lawsuits against states who have changed their election rules to make it affirmatively easier to vote during the pandemic. Examples of these initiatives include sending mail-in ballots to all registered voters, extending deadlines for returning ballots, and setting up ballot drop boxes to encourage voting while minimizing potential health risks. The Trump administration has been a leading proponent of such lawsuits. So far, litigants have raised two types of claims in this category of cases. First, a number of cases present a vote dilution theory. These claims allege that less stringent rules will induce voter fraud, which will, in turn, reduce the impact of non-fraudulent votes. However, it is not clear whether vote dilution due to voter fraud even constitutes a cognizable claim. While the Supreme Court has recognized several types of vote dilution claims, including malapportionment and racial vote dilution, the Court has never recognized fraud-based theories of the type alleged in these lawsuits. In addition, the Court has recently shown willingness to constrain the scope vote dilution theories. In fact, only last year in Rucho v. Common Cause, the Court held that partisan vote dilution — or partisan gerrymandering, as it is more colloquially known — should no longer constitute a cognizable claim, thereby reversing over forty years of precedent. Finally, while the Court has recognized that federal statues prohibit certain types of election fraud, there is a marked difference between upholding a federal statute prohibiting election fraud and striking down state statutes that could increase the risk of voter fraud on constitutional grounds. Such a reading of the Constitution would not only be unprecedented but would also have the potential to strike at the heart of federalism.
In addition to the vote dilution cases, litigants have also brought Bush v. Gore-style, excessive geographic variation claims in this second category of cases. Named after the famous Supreme Court decision in Bush v. Gore, where the Court held that excessive geographic variation in the way votes were counted violated the Equal Protection Clause of the Fourteenth Amendment, these claims challenge voting rules that allow localities to set up as many ballot boxes as they choose above a mandatory minimum. It is unclear whether any Bush v. Gore claim can succeed in situations where variations are allowed only above a reasonable threshold. Prohibiting such local variations would inevitably lead to both the standardization and centralization of the U.S. voting system, which would be a significant break with tradition.
Legal doctrine aside, the most important question left unanswered from these cases is whether and to what extent the pandemic and the associated COVID-related election litigation would impact the outcome of the 2020 presidential election. It is undisputed that the pandemic has had a disparate impact on minority communities — both in terms of health and economic impact. What is more difficult to gauge is how the pandemic will impact the way citizens, and especially minority citizens, cast ballots and the trust they have in the local, state, and federal government. With nine days left until the election, over fifty-six million people have already voted, setting a national record for early voting. While the total number of early ballots so far has already surpassed the total number of early ballots cast in the 2016 election, there is division among states. Some battleground states, such as Texas, Wisconsin, and Minnesota, reflect the national trend where early voting is comparable or has surpassed the 2016 levels. However, in other states, such as Florida, North Carolina, and Ohio, early voting this year trails the 2016 levels.
Further compounding this problem is the phenomenon of “disinformation creep” — or the purposeful use of coronavirus disinformation to engender distrust, resentment, and disillusionment among minority communities, and especially African American communities, with the express goal of reducing minority voter turnout. This is particularly concerning given that the African American voter turnout rate declined by seven points in the 2016 presidential election. This marked the largest decline in African American turnout from a previous presidential election in US history. Even more problematic, despite the increase in African Americans as a percentage of US population, the total number of registered African American voters also decreased in 2016 by approximately 765,000. These trends constitute a stark contrast to the 2012 presidential election, which marked both a record high African American turnout rate and high numbers of African American registered voters across states.
The combined effect of the unprecedented spike in election-related litigation, the associated uncertainty about what courts will deem permissible regarding voting procedures and timelines, the spread of COVID-related misinformation, and the logistical voting challenges on the ground is that tensions are at extraordinary levels just days before the election. Political polarization, a defining feature of American politics in the last twenty-five years, has reached an all-time high. Over 80% of Americans today feel unfavorably towards members of the opposite party, and the proportion of Americans who report strong animus has more than tripled since 1994. What does that mean for the 2020 election? One thing is clear, regardless of who the next President of the United States ends up being, the more fundamental questions about the future of our democracy are certain to be with us for a long time.
Dessie Otachliska graduated from Harvard Law School in May 2021.
This post was originally published on the COVID-19 and the Law blog.
