Archives for October 2020

The Fifth Circuit Got it Wrong: Last-Second Burdens on Voting Should be Prohibited

Election Law Society · October 21, 2020 ·

The conjunction of the COVID-19 pandemic and the 2020 election has wrecked legal and electoral chaos in the state of Texas. In July, in order to accommodate the large amount of individuals filing for mail-in-ballots, Governor Abbott issued several proclamations, permitting voters to turn in their mail-in-ballots in person not only on election day but for the entire early voting period.

In response, several of Texas’s most populous and geographically dispersed counties set up multiple drop-off locations where voters could turn in their mail-in-ballots. This allowed voters to turn in their mail-in-ballots without having to travel far, wait in long lines, and risk exposure to COVID-19. In effect, the counties sought to realize the whole purpose of allowing mail-in-ballots: to avoid exposure to COVID-19.

Schrödinger’s Citizens: The Trouble with Territorial Disenfranchisement

Election Law Society · October 19, 2020 ·

By Scott Meyer

According to a 2017 poll, nearly half of Americans were unaware Puerto Ricans were U.S. citizens. This discrepancy seems to bely the fact that U.S. territories, of which Puerto Rico is the largest, constitute over three and a half million U.S. citizens, have some of the highest military enlistments per capita, and even pay some federal taxes. However, despite over a century of combined history as U.S. territories, their citizens still lack one of the foundations of American democracy: the right to vote in presidential elections.

The reasoning for territories’ disparate treatment comes from Supreme Court rulings from the early nineteen-hundreds, which became known as the Insular Cases. As Justice Kennedy succinctly explained in Boumediene v. Bush: “[i]n a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State.” The Court then noted the delicate balance between imputing constitutional rights to territories versus respecting their existing laws, a tension which could result in confusion and instability. To this end, the Insular Cases Court came up with “…the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”

No No-Excuse Absentee Voting in the Magnolia State

Election Law Society · October 19, 2020 ·

By Catrina Curtis

While the entire country will vote in an important presidential election in November, Mississippians will also vote on significant state ballot measures, such as legalizing medical marijuana, approving a newly designed state flag, and repealing a Jim Crow-era election law. However, because Mississippi has not fully relaxed its mail-in voting requirements, despite the ongoing COVID-19 pandemic, there is fear that not enough has been done to protect Mississippians’ ability to vote in such a crucial election.

One driving force behind the fear of strict absentee voting in Mississippi is the state’s large black population. Mississippi has the highest black population in the country, at 37.8%, and COVID-19 disproportionately affects minorities. Some believe the state is particularly failing to protect both its minorities’ health and voice in this year’s critical election. Late this summer, the Lawyers’ Committee for Civil Rights Under Law along with the Southern Poverty Law Center and the American Civil Liberties Union of Mississippi, along with the Mississippi Center for Justice, filed separate lawsuits on behalf of Mississippi plaintiffs. Both suits, one at the state level and one at the federal level, allege that the state is failing to adequately protect Mississippians’ constitutional right to vote during the current pandemic.

2020 Forces “SeaChange” in Maryland’s Election Administration

Election Law Society · October 19, 2020 ·

When your state electorate increases its number of mail-in ballots cast by something like 1556% cycle-over-cycle, you might run into some problems. Take it from Maryland, where nearly 1.5 million voters cast their ballots by mail in this year’s presidential primary, compared with just over 80,000 combined votes by absentee/provisional ballot in the 2016 primary. Maryland is not Oregon or Washington, states experienced in administering largely vote-by-mail elections, in which mailed ballots account for some 97% of those cast. Pre-Covid Maryland required no excuse from voters who wished to vote by mail, but the practice was rare. Historically, in-person voting accounts for 90% of Maryland’s ballots cast. The 2016 general election set the previous record for “ballots sent” to requesting voters: Marylanders requested approximately 226,000 ballots and returned roughly 177,000. By contrast, the State mailed nearly 3.6 million ballots for the June 2^nd primary, and voters returned almost 1.5 million of them. [Read more…] about 2020 Forces “SeaChange” in Maryland’s Election Administration

Learning from Lawsuits: How Kentucky’s top officials adapted to satisfy voter complaints

Election Law Society · October 16, 2020 ·

By Cameron Newton

When the dust settled following the contentious 2019 elections in Kentucky, each of the commonwealth’s major executive offices—save for the governorship—was won by the Republican candidate. While the election of Andy Beshear brought control of the Governor’s Mansion back into Democratic hands, perhaps the night’s most shocking result came as Michael Adams, an election lawyer with a history in Republican politics, upset former Miss America Heather French Henry in the race for Secretary of State. No thinking observer would have anticipated emerging election policy to be anything but crafted and contested along rigid ideological boundaries.