ELECTION LAW / VOTING

Akuamoah, Ernest, 'The Year 2020, COVID-19 and Elections in Africa' (SSRN Scholarly Paper ID 3596662, 5 May 2020)
Abstract: Across the continent, millions of people will be going to the polls to exercise their democratic rights this year. In theory, elections will provide avenues for citizens to hold their leaders accountable through either endorsing their legitimacy or replacing them if they have performed abysmally. In this regard, you would expect citizens to be enthusiastic and excited for the opportunity to vote, but this is not always the case. For the most part, election periods in many African countries are characterized by fear and panic because electoral contests are considered a 'do-or-die' affair . Even when incumbents are defeated, it is uncertain whether they will leave office. Moreover, the COVID-19 pandemic presents manifold challenges to democracy in Africa. This paper highlights some of these challenges and identify countries at high risk of contentious elections.

Ananingsih, Sri Wahyu and Ratna Dewi Pettalolo, 'Medical and Legal Constraints for Organizing 2020 Regional Head Election in the Covid-19 Pandemic in Indonesia' (2021) 21(1) Medico Legal Update 990-994
Abstract: In 2020, Indonesia will hold regional head elections simultaneously in 270 regions covering 9 provinces, 224 districts and 37 cities, voting on 9 December 2020. This study aims to analyse the potential for general elections in the midst of Covid-19 pandemic in Indonesia..Descriptive qualitative research method are used in which the data is obtained through interactive discussions, interviews and document searches. The results of our analysis conclude that there are 4 potential vulnerabilities in the 2020 elections, namely the availability of the budget, the readiness of election organizers, the number of alleged violations and the level of community participation. Recommendations for this study are the efforts to collaborate, coordinate and communicate well between the government and the election organizer and increase public participation.

Becker, David J, 'Conducting Elections During a Pandemic' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 47-53
Abstract: At the beginning of 2020, many believed that the biggest threat to our elections was foreign interference, consistent with disinformation campaigns launched by our adversaries. But even with this lingering threat, it was expected that voter turnout in the 2020 presidential election would break records - perhaps even reaching the highest level of turnout since the nation saw more than 65% of eligible voters participate in the election of 1908, over a century ago (USEP, 2020). The onset of the pandemic brought much uncertainty, as election officials faced unprecedented challenges, unsettled law, and diminishing resources, while voters were torn between concern about our democracy and fear of contracting COVID-19. Widespread shortages of poll workers and safe polling locations, rushed transitions to mail voting, and insufficient funding could not diminish the democratic spirit, however, and we've seen primary turnout break records in some states. Most experts in the field believe that we should plan for the highest turnout in generations this fall, even as we expect that restrictions and fears due to the pandemic will be in full force. What's also apparent, however, is that law, policy, and perhaps most importantly, administrative and informational practices in our highly decentralized administration of elections are not yet fully equipped to facilitate safe, secure, and convenient voting for 150 million Americans in the midst of a global health crisis. And while solutions like expanding mail voting will be necessary, no one solution will solve this problem, nor will all states find themselves able to offer the same options to all voters. We will need a multifaceted approach including easy mail voting, a massive recruitment of new poll workers to allow for safe and convenient inperson voting, and an unparalleled voter education effort to meet this challenge.

Benkler, Yochai et al, 'Mail-In Voter Fraud: Anatomy of a Disinformation Campaign' (Berkman Center Research Publication No No 2020-6, 2 October 2020)
Abstract: The claim that election fraud is a major concern with mail-in ballots has become the central threat to election participation during the COVID-19 pandemic and to the legitimacy of the outcome of the election across the political spectrum. President Trump has repeatedly cited his concerns over voter fraud associated with mail-in ballots as a reason that he may not abide by an adverse electoral outcome. Polling conducted in September 2020 suggests that nearly half of Republicans agree with the president that election fraud is a major concern associated with expanded mail-in voting during the pandemic. Few Democrats share that belief. Despite the consensus among independent academic and journalistic investigations that voter fraud is rare and extremely unlikely to determine a national election, tens of millions of Americans believe the opposite. This is a study of the disinformation campaign that led to widespread acceptance of this apparently false belief and to its partisan distribution pattern. Contrary to the focus of most contemporary work on disinformation, our findings suggest that this highly effective disinformation campaign, with potentially profound effects for both participation in and the legitimacy of the 2020 election, was an elite-driven, mass-media led process. Social media played only a secondary and supportive role.Our results are based on analyzing over fifty-five thousand online media stories, five million tweets, and seventy-five thousand posts on public Facebook pages garnering millions of engagements. They are consistent with our findings about the American political media ecosystem from 2015-2018, published in Network Propaganda , in which we found that Fox News and Donald Trump's own campaign were far more influential in spreading false beliefs than Russian trolls or Facebook clickbait artists. This dynamic appears to be even more pronounced in this election cycle, likely because Donald Trump's position as president and his leadership of the Republican Party allow him to operate directly through political and media elites, rather than relying on online media as he did when he sought to advance his then-still-insurgent positions in 2015 and the first half of 2016.Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it's news); headline seeking (if it bleeds, it leads); and balance , neutrality, or the avoidance of the appearance of taking a side. He uses the first two in combination to summon coverage at will, and has used them continuously to set the agenda surrounding mail-in voting through a combination of tweets, press conferences, and television interviews on Fox News. He relies on the latter professional practice to keep audiences that are not politically pre-committed and have relatively low political knowledge confused, because it limits the degree to which professional journalists in mass media organizations are willing or able to directly call the voter fraud frame disinformation. The president is, however, not acting alone. Throughout the first six months of the disinformation campaign, the Republican National Committee (RNC) and staff from the Trump campaign appear repeatedly and consistently on message at the same moments, suggesting an institutionalized rather than individual disinformation campaign. The efforts of the president and the Republican Party are supported by the right-wing media ecosystem, primarily Fox News and talk radio functioning in effect as a party press. These reinforce the message, provide the president a platform, and marginalize or attack those Republican leaders or any conservative media personalities who insist that there is no evidence of widespread voter fraud associated with mail-in voting.The primary cure for the elite-driven, mass media communicated information disorder we observe here is unlikely to be more fact checking on Facebook. Instead, it is likely to require more aggressive policing by traditional professional media, the Associated Press, the television networks, and local TV news editors of whether and how they cover Trump's propaganda efforts, and how they educate their audiences about the disinformation campaign the president and the Republican Party have waged.

Clinton, Joshua David et al, 'Trumped by Trump? Public Support for Vote By Mail Voting in Response to the COVID-19 Pandemic' (SSRN Scholarly Paper ID 3630334, 16 June 2020)
Abstract: How much is support for vote by mail (VBM) impacted by the COVID-19 pandemic, partisanship, and recent efforts by partisan elites to politicize discussions about expanding the use of VBM in November 2020? Using surveys of registered voters conducted in April and May 2020 we characterize how changing concerns about COVID 19 and increased partisan messaging affects public support for VBM. We show that the bipartisan support for VBM in April 2020 falls sharply after just six weeks because: Republicans became less worried about catching COVID-19, and unconcerned Republicans also became more opposed to VBM. The pandemic originally increased public support for expanding VBM to help combat the spread of COVID-19 - creating a relative unique opportunity to examine the public's willingness to reconsider how elections are administered - but decreasing COVID-19 concerns among Republicans and increased opposition among unconcerned Republicans (perhaps due to increased partisan messaging) has combined to increase partisan divisions in otherwise historically high levels of public support for VBM.

Creighton, Tyler, 'A New Start down an Old Road Toward Substantive Voter Equality for People with Disabilities' (SSRN Scholarly Paper ID 3754515, 23 December 2020)

Abstract: As the June 2020 state primary election in Pennsylvania approached, Joseph Drenth, who is legally blind, faced an untenable choice: vote by mail and sacrifice the ability to cast a private and independent vote, or continue to vote privately and independently at a polling location and sacrifice the health and safety of himself and his family due to the COVID-19 pandemic? Fortunately, a preliminary injunction ordering the state to implement a remote accessible vote-by-mail system ultimately made such a choice unnecessary for Mr. Drenth. Unfortunately, voters with disabilities in many other jurisdictions throughout the country were not so lucky. Even as the threat of COVID-19 hopefully moves to our rearview mirrors in the coming year, Mr. Drenth's successful lawsuit highlights a critical but underutilized legal tool for ensuring that voters with disabilities are afforded an equal voting experience--including the ability to cast a private and independent ballot--as compared to other voters.This article proceeds in three parts. Part I summarizes the history and current state of voting with a disability in the United States. In doing so, it outlines the main federal statutory provisions related to voting rights for individuals with disabilities. Part II explains how federal courts initially narrowed the guarantee of the ADA and the Rehabilitation Act to mere technical equality in voting in a way that denied equal dignity and treatment when voting with a disability. It then analyzes a more recent line of cases that backs away from this early case law to expand the reach of the ADA and Rehabilitation Act to also ensure substantive equality and a fuller, more robust right to vote with a disability. Part III then speculates about broader adherence to a mandate of substantive equality throughout the federal judiciary.

Douglas, Joshua A and Michael Zilis, 'Bring the Masks and Sanitizer: The Surprising Bipartisan Consensus About Safety Measures for In-Person Voting During the Coronavirus Pandemic' (SSRN Scholarly Paper ID 3693286, 16 September 2020)
Abstract: Americans overwhelmingly support various safety measures at polling places for the November 2020 election. Issues like face mask requirements, social distancing, and sanitizing polling equipment after each voter have strong support, regardless of party, even if adopting them might mean longer lines or wait times to vote. For instance, 79 percent of Americans support face mask requirements at the polls, with little difference among the views between Democrats and Republicans.That surprising statistic comes from a representative, nationwide survey of Americans we conducted in August 2020 about their views of the election during a pandemic. Although beliefs about expanded vote-by-mail have significant partisan overtones, support for safety measures for in-person voting does not.As of mid-September, five states (Indiana, Louisiana, Mississippi, Tennessee, and Texas) will not allow concerns about COVID-19 to qualify as a valid excuse for absentee voting. These states will therefore likely have a high rate of in-person voting. But the states vary slightly on the safety measures they will employ, with only some requiring poll workers to wear masks and none imposing a mask mandate for voters. Although no voter should be turned away for not wearing a mask, the data in our survey suggests that states can do more to make voters feel more comfortable when voting in person. Given that Americans broadly support some modifications to in-person voting and also express safety concerns about polling places, the failure to adopt them could depress turnout, particularly in states that do not make absentee voting easy.This paper presents the survey data and offers policy recommendations regarding safety measures states should employ to make Americans more comfortable when voting this fall.

Gardner, James A, 'Democratic Legitimacy under Conditions of Severely Depressed Voter Turnout' (University of Buffalo School of Law Legal Studies Research Paper No No 2-0162020, 28 May 2020)
Abstract: Due to the present pandemic, it seems increasingly likely that the 2020 general election in November will be held under conditions of unprecedented downward pressure on voter turnout. The possibility of severely depressed turnout for a highly consequential presidential election raises troubling questions of democratic legitimacy. Although voter turnout in the United States has historically been poor, low turnout is not usually thought to threaten the legitimacy of electoral processes when it results from voluntary abstention and is distributed unsystematically. Conversely, electoral legitimacy is often considered at risk when nonvoting is involuntary, especially when obstacles to voting fall systematically on specific populations. If turnout in November is unusually low but largely voluntary and unsystematic, then the risks to legitimacy should be low. If, however, nonvoting is both widespread and involuntary, and especially if obstacles to voting seem systematically directed at specific groups, conditions will be in place for a significant escalation of the threat. In particular, concerns of electoral legitimacy, which place in doubt only the authority of specific election winners to occupy the offices to which they have purportedly been elected, may ratchet up to much more profound concerns about regime legitimacy. Such concerns cast doubt on the continuing validity of popular consent to the entirety of the existing governmental regime.

Hasen, Richard L, 'Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them' (2020) 19(3) Election Law Journal: Rules, Politics, and Policy 263-288

Abstract: The COVID-19 global pandemic, which already has claimed over 150,000 lives in the United States by the end of July 2020, has revealed cracks in American economic and social infrastructure. The pandemic also has revealed the inadequacy of the American political infrastructure, in particular, the lack of systematic and uniform protection of voting rights in the United States.The pandemic has illuminated three pathologies of American voting rights that existed before the pandemic and are sure to outlast it. First, the United States election system features deep fragmentation of authority over elections. Second, protection of voting rights in the United States is marked by polarized and judicialized decision making. Third, constitutional protections for voting rights remain weak.Despite these three pathologies and the Supreme Court's recent decision in RNC v. DNC concerning Wisconsin ballot receipt deadlines, which sided against expanded voting rights, there is room for some hope that at least some courts will provide a measure of protection for voting rights during the pandemic. In some of the early COVID-19-related election litigation, courts are putting a thumb on the scale favoring voting rights and enfranchisement in both constitutional and statutory cases. Judges have recognized that the balancing required by the Anderson-Burdick test looks radically different when voters cannot easily register and vote in person, and when candidates cannot collect signatures to get on the ballot. In the context of statutory interpretation, some courts seem to be applying without explicit articulation 'the Democracy Canon,' an old canon counseling courts to interpret ambiguous election statutes with a thumb on the scale favoring voting rights. But the picture is mixed, and a number of courts are not adequately accommodating voting rights during the pandemic.More significantly, court intervention can only go so far, and long-term vigorous judicial protection of voting rights is neither likely nor sufficient to cure American voting rights pathologies. Progress will require more radical change, such as a constitutional amendment protecting the right to vote, requiring national nonpartisan administration of federal elections, and setting certain minimal voter-protective standards for the conduct of state and local elections. Movement toward constitutional amendment is a generational project aimed at entrenching strong voting rights protections against political backlash.

Hirczy de Mino, Wolfgang, 'Election Administration in Times of COVID-19: How the Texas Supreme Court Failed Texas Voters'SSRN Scholarly Paper ID 3645607, 27 July 2020)
Abstract: On May 27, 2020, the Supreme Court of Texas (SCOTX) handed down an opinion on mail-in voting in record time, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court's haste, however, was to curtail voting by mail (VBM) in times of pandemic--rather than expand it--and they did so upon an emergency mandamus petition filed by Attorney General Paxton, the state's chief legal officer, rather than in a case brought by advocates for voters.
In a glaring disconnect, the members of the SCOTX voted remotely from their respective homes to deny all Texans the ability to vote remotely from their home under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, _ S.W.3d __, 2020 WL 2759629 (Tex. May 27, 2020).
In construing the absentee voting provision as urged by the Attorney General, the Court held that lack of immunity to COVID-19 does not, without more, constitute a "physical condition" that entitles the voter to vote absentee to avoid the risk of infection at the polling place.
Part I and II of this article will show how the all-Republican state supreme court went out of its way to interpret the Election Code contrary to the best interest of Texas voters when there was no good reason to do so, and will dispel the notion that the state supreme court was merely giving effect to the Legislature's will in a nonpartisan fashion.
In Part III I will argue that the Texas Supreme Court's ruling does not have the force of binding precedent because the question of statutory construction was improperly addressed in an unsuccessful mandamus case against election clerks who had done nothing wrong. No writ of mandamus was issued against them. The Court's interpretation of the "disability" provision to exclude a lack of immunity to COVID-19 as a valid reason to apply for a mail ballot therefore constitutes dictum because it was not essential to the disposition of the case.
In Part IV and V I will explore the partisan political dimension of the dispute over absentee voting in Texas, and describe and assess the conduct of the state supreme court and the major players in the legal wrangling over mail-in voting in Texas.
Integrating the various strands of analysis, I conclude that the Supreme Court did Texans a disservice by thwarting a remedy for the better management of health risks inherent in election administration under pandemic circumstances; - a remedy that was available within the letter and the spirit of the existing absentee voting provision in the Texas Election Code; that the Court ruled contrariwise for extra-jurisprudential reasons; and that the Court's disposition of the case leaves voters and others at the risk of being criminally prosecuted for not "correctly" reading and heeding the Supreme Court's ruling.
I also conclude that the proponents of easier access to mail-in voting (most notably, the Texas Democratic Party) pursued a suboptimal litigation strategy, and should not have capitulated to Attorney General Paxton after being bested by him.
AG Paxton's successful gambit consisted of by-passing a pending state-court appeal (in the case in which he had lost at the trial court level and in the first round on appeal) so as to obtain a favorable ruling against the Democrats on an emergency basis in a separate case against different parties; a mandamus case filed directly in the all-GOP Texas Supreme Court while at the same time excluding his political nemesis from that arena.
In the wake of the Texas Supreme Court's ruling, the Texas Democrats abandoned their state-court litigation in favor of their federal strategy centered on an age-discrimination argument under the Twenty-Sixth Amendment. That bid for a federal remedy, however, does not look promising, given the current jurisprudential climate and ideological complexion of the Fifth Circuit and the U.S. Supreme Court.
In the first salvo, a panel of the Fifth Circuit ruled against the Democrats on the Texas Solicitor General's motion for stay, and the SCOTUS declined to get involved on an emergency basis so early in the game. Justice Sotomayor noted that the articulated concerns were weighty, and the arguments seemingly novel, but concurred in the denial of extraordinary relief. Texas Dem. Party v. Abbott, 2020, 961 F.3d 389 (5th Cir. Jun. 4, 2020) (staying preliminary injunction order) (motion to vacate stay denied by Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020)).

Landman, Todd and Luca Di Gennaro Splendore, 'Pandemic Democracy: Elections and COVID-19' (2020) 23(7-8) Journal of Risk Research 1060-1066
Abstract: This article provides an initial assessment of the many risks posed by the COVID-19 pandemic on the conduct of genuine and transparent elections in the world. It begins with explaining why elections are a vital part of democracy, and then using the notion of the electoral cycle, constructs a risk matrix that assesses the relative impact and likelihood of risks to the cycle, as well as proposes a number of potential mitigations to these risks. The variety and number of elections, dimensions of the electoral cycle that can be disrupted, and the need for solutions raises significant questions about the future of democracy itself.

Lee, Sang-Oun, 'Vote-from-Home? Evaluation Framework for Election Security on Remote Voting in Response to COVID-19' (SSRN Scholarly Paper ID 3685381, 2 September 2020)
Abstract: This article poses a question on whether the remote voting by online or vote-by-mail is trustworthy under the COVID-19 pandemic situation. One of the worldwide efforts to contain the virus was to work-from-home and restriction orders. Besides, because of the human contact is critical in the dissemination of the virus, possibilities of alternative methods of voting such as online voting, blockchain voting, vote-by-mail are proposed. In light of such a situation, the article proposes a framework to evaluate the election security of remote voting methods. Further, the article provides a case of best practice for election administration from the case of the Republic of Korea. Based off of the assessment results from the proposed evaluation framework, the article provides modest suggestions and policy implications to the election administrators.

Martin, John J, 'Mail-In Ballots & The Dormant Presidential Electors Clause' (SSRN Scholarly Paper No ID 3702995, 30 September 2020)
Abstract: Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states have opted to allow voters to use mail-in ballots to vote in the general election. The Trump administration, nevertheless, has been proactively enacting policy changes to hamper the U.S. Postal Service's ('USPS') ability to effectively handle the rise in mail-in voting. Some states have sued the administration in response, raising a variety of claims in their lawsuits. One of the lesser discussed claims, though, is that the Executive's actions violate Article II, SS 1, cl. 2, otherwise known as the 'Presidential Electors Clause.' This clause confers onto the states the exclusive power to appoint their electors 'in such Manner as the Legislature thereof may direct.' Thus, the Presidential Electors Clause is unique in that it provides states one of their few enumerated constitutional powers--it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the Executive's delegated authority over USPS, to undermine a state's chosen manner of appointing its electors, such as popular vote by mail-in ballots, a conflict of powers arises. This Essay attempts to resolve this conflict of power, ultimately concluding that within the Presidential Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state's choice to use mail-in ballots in a Presidential election--what this Essay calls the 'Dormant Presidential Electors Clause'.

Mazo, Eugene D, 'Voting During a Pandemic' (2020) 100 Boston University Law Review Online 283-297
Abstract: Richard Hasen dedicates his book 'Election Meltdown' to illuminating four threats that undermine the trust American voters have in their elections. These include voter suppression, administrative incompetence, dirty tricks that spread false information to voters, and the incendiary rhetoric uttered by public officials. An example of the last threat includes President Trump's repeated statements to the public that American elections are 'rigged' or 'stolen,' when, in fact, no evidence exists to support this claim. Professor Hasen is an astute observer of the American electoral landscape, and his book deserves our attention for its elucidation of these four threats. However, these threats, important as they are, have also recently been overshadowed by an additional threat to American elections: the COVID-19 pandemic. COVID-19 has transformed the way we work, travel, shop, socialize--and, importantly, vote. COVID-19 has changed the playbook for voting dramatically. Prior to March, most voters cast their ballots in person. In November, most voters will be casting their ballots by mail. This fact alone threatens to impede the participation of ordinary citizens in the electoral process to an extent most American voters have rarely witnessed. How states decide to register new voters, how new and existing voters will choose to cast their ballots, and which segments of the population will vote in the presidential election are all questions for which we do not have good answers. This Essay explains how several aspects of the voting process have changed as a result of the pandemic, focusing in particular on voter registration, voting by mail, and voting in person. It also explains how COVID-19 has spawned an unprecedented amount of election-related litigation. As of late-September, more than 260 COVID-19-related election cases have been filed. They seek to determine how candidates will compete and how voters will exercise their voice in November. The challenges posed by COVID-19 for our elections do not render the threats identified by Professor Hasen irrelevant. Rather, this Essay argues that COVID-19 will exacerbate the effects of any incompetence that might be displayed by our state and local election officials. Moreover, those who engage in voter suppression, dirty tricks, or incendiary rhetoric will now be able to use COVID-19 as cover for their wrongdoing. If the past few months have taught us anything, it is that the excuse of a pandemic can be used to block access to the ballot box just as much as the four threats to democracy that Hasen identifies in his book.

de Mino, Wolfgang Hirczy P, 'Coronavirus Election Jurismalprudence' (SSRN Scholarly Paper ID 3684951, 1 September 2020)
Abstract: Judicial Branch of the Texas GOP Showcases Use of Judicial Power to Make Elections Hazardous to Both Liberty and Health Election Law Guru Richard Hasen recently laid out three pathologies in the American way of practicing electoral democracy. Not only is Texas afflicted by all three of them, the Lone Star State merits an in-depth clinical case study of its own to explore the etiology of how democracy itself can suffer a bad health outcome under partisan judicial leadership in times of a raging pandemic. Not only has official voter suppression been given the imprimatur of judicial approval in Texas; the highest court for all matters civil has gone so far as to criminalize voting by mail, leaving the precise definition of the contours of the crime to the prosecutorial discretion of the Republican Attorney General, along with the ability to select absentee voters for prosecution after the fact for wrongful voting. See, relatedly, Mason v. State, No. 02-18-00138-CR, 598 S.W.3d 755 (Tex.App. - Fort Worth, Mar. 19, 2020, motion for reh'g denied Aug. 27, 2020) (holding that State did not have to prove mens rea to obtain conviction for second-degree felony illegal voting involving the casting of a provisional ballot, Tex. Elec. Code Ann. SS 64.012(a)(1), (b)). The Supreme Court of Texas (SCOTX) -- composed solely of Republicans -- set the new low in partisan jurisprudence in an opinion handed down on May 27, 2020, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court's haste wasn't motivated by the exigencies of the COVID-19 crisis. The perceived imperative was instead to curtail voting by mail (VBM) in times of pandemic. The supreme jurists did so at the behest of fellow-Republican Attorney General Ken Paxton in an original proceeding brought for the purposes of securing a favorable ruling, rather than in a declaratory judgment case brought by advocates for voters that was making its way through the regular appeals process. Under the motto SAFETY FOR ME, BUT NOT FOR THEE, the nine Supreme Court Republicans voted remotely from their respective homes to deny all Texas citizens the ability to vote remotely from their homes under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, 2020 WL 2759629, 602 S.W.3d 549 (Tex. May 27, 2020). Construing the absentee voting provision of the Texas Election Code as urged by the Attorney General, the High Court proclaimed that lack of immunity to COVID-19 does not, without more, constitute a physical condition that entitles the voter to vote absentee to avoid the risk of infection at the polling place. This paper recounts the course of the litigation, and presents a critique of the actors and the outcome.

Morley, Michael, 'Postponing Federal Elections Due to Election Emergencies' (SSRN Scholarly Paper No ID 3619213, 4 June 2020)
Abstract: Federal Election Day didn't just happen. Instead, it reflects the culmination of a series of federal laws enacted over the course of nearly a century that each set a uniform time for a different type of federal election. These laws grant states flexibility to hold federal elections at a later date if there is a 'failure to elect' on Election Day. Earlier commentators have argued that these 'failure to elect' provisions are narrow, and only authorize runoff elections in states that require candidates to receive a majority (rather than plurality) of the vote to win. Based on a detailed examination of these provisions' text, legislative history, and history of judicial application, this Essay argues that federal Election Day laws, including their 'failure to elect' provisions, empower states to postpone or extend federal elections when an unexpected emergency prevents them from conducting or concluding a federal election on Election Day. A court may also order the postponement or extension of a federal election when necessary to prevent a constitutional or statutory violation. The Supreme Court has emphasized that courts generally should not grant such relief at the last minute, however, although unexpected emergencies may sometimes render it necessary. And a court may not order an election postponement or extension unless other, less extensive changes to the rules governing the electoral process are insufficient to remedy the constitutional or statutory violation. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy--particularly in the unique context of presidential elections--that should be employed only when other alternative would be ineffective.

Rubin, Nathaniel, 'The Electors Clause and the Governor's Veto' Cornell Law Review Online (forthcoming)
Abstract: This Essay examines whether the United States Constitution allows a governor to veto a state legislature's bill governing presidential elections. The Constitution does not support this seemingly intuitive proposition directly, and on its face appears to vest control over presidential elections solely in the hands of state legislatures: while Article II of the Constitution explicitly provides for the 'Legislature' of each state to control the 'manner' in which electors are chosen, it makes no mention of state governors. This vagary in the Constitution's text takes on particular import in light of political polarization over election administration in recent years. Moreover, the COVID-19 pandemic has prompted numerous states to make emergency modifications to their election systems, including delaying elections or attempting to cancel marginally competitive presidential primaries. Commentators have even expressed fear that a state legislature may eventually attempt to exercise its plenary authority to determine how presidential electors are appointed under Article II, Section 1 of the Constitution to choose electors without holding a popular vote. This Essay answers these concerns by arguing that a state governor can veto state legislatures' bills governing presidential elections on the same terms as any other legislation. Although the Constitution may not explicitly provide for a state governor's role, the Supreme Court's precedents and longstanding practice strongly suggest that a state governor has the same powers over bills governing presidential elections as over other state legislation. This conclusion has further implications for other potential conflicts between state legislatures and governors over presidential elections, including rules for absentee balloting, awarding electors by congressional district, using ranked-choice voting, or entering the National Popular Vote Interstate Compact.

Shapiro, Ilya and James Knight, 'Election Regulation during the COVID-19 Pandemic' (CATO Institute Legal Policy Bulletin No 5, 2020)
Introduction: The ongoing pandemic has necessitated dramatic changes to nearly every aspect of American life. The ways we work, shop, eat, and socialize have been radically restructured to protect our own health and that of our communities. This November, that radical restructuring will extend to the way we vote. Changes to our voting systems to safeguard public health, such as by allowing mail-in voting, are sorely needed, particularly if fears of another COVID-19 wave in the fall come true. At the same time, hastily switching from in-person voting to more-anonymized systems with which the states lack experience creates the potential for chaos, errors, and decreased electoral legitimacy in the eyes of voters. With little more than two months until the election, states must finalize decisions on what they are doing and communicate those plans to their citizens and the country as a whole.

Wald, Ezekiel, 'Election Law's Efficiency-Convergence Dilemma' (SSRN Scholarly Paper No ID 3678254, 24 September 2020)
Abstract: We are facing a moment of unique reflection in American democracy. Data suggests that marginalized communities feel persistently ignored by political actors--on a bipartisan basis. The scale of wealth inequality is soaring to unprecedented heights. Domestic indifference to foreign interference in our elections has poisoned public confidence in the political process. Mass reckonings with institutionalized racism and police violence have rocked major cities, facing deep and violent resistance from the President and the federal government. A global pandemic disproportionately devastated Black and Brown communities, and the federal government's response prioritized economic liberty over health and safety. Americans are reconsidering the nature of our relationship to the federal government, and the pressure for reform may now exceed any moment since the New Deal. In this setting, Iowa's dramatic failure to efficiently administer the Democratic Presidential Caucus hardly seems worthy of a footnote in the history of 2020. Yet, at the time, it became a national story. Iowa's failure to administer an efficient election was new--but election law's marriage to economic efficiency is much older. Understanding the depth of efficiency's roots in the law of democracy requires turning back to that same New Deal era. The conflict between the American Legal Realists and the laissez faire Lochnerism of the Supreme Court laid the groundwork for efficiency's lasting role in law--and for the century of criticism that sprung up to contest it. Efficiency--and specifically, the conceptions of efficiency proffered by Chicago School Law and Economics and Virginia School Public Choice Theory--emerged victorious from those contests. But, we are facing a moment of unique reflection, and in such a moment, an opportunity arises. By looking back through efficiency's rise, we can chart a course forward. This article offers a framework with which to do so: the efficiency-convergence dilemma. Part I builds the efficiency-convergence, outlining the intellectual history of efficiency's role in election law. Part II builds the dilemma, highlighting critical legal theory and heterodox economics traditions that contour the normative concerns with the efficiency-convergence. Part III presents the framework. I develop a typology of efficiency arguments within election law, derived from novel primary source analysis of the legislative history for the Voting Rights Act and the National Voter Registration Act, along with case law and scholarship across election law. I theorize that this typology demonstrates an efficiency-convergence dilemma, functioning to institutionalize racial subordination as a neutral principle undergirding legal thought in the law of democracy. I offer a series of critiques for this efficiency-convergence, built from the critical theories discussed. Finally, Part IV offers two normative implications of the efficiency convergence. The first is to look outside the law, developing an operationalized definition of equity based on similar research in public health and public policy. The second is to highlight election law scholarship that bucks the efficiency convergence, charting a path forward. I present one such path: reimagining the right to vote as a constructive right implemented through constitutional conventions and norms and protected as an instrumental right.

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