WASHINGTON — State officials nationwide are scrambling to adjust to stay-at-home and social distancing orders as they plan the 2020 voting calendar, and many experts warn that the pandemic threatens to be highly disruptive to this year’s elections.
“There’s a real possibility that people will be afraid to vote on Election Day and won’t have alternatives,” said Trevor Potter, a former chairman of the Federal Elections Commission who now heads the Campaign Legal Center in Washington. “That’s just unacceptable for the world’s leading democracy.”
Fourteen states and Puerto Rico have already postponed their primary elections or caucuses for choosing presidential candidates.
Voting rights advocates in Ohio filed a lawsuit to challenge the legislature’s plan for delaying the March 17 primary by extending absentee voting through April 28. The challengers argue that it is likely to overwhelm the system for handling absentee votes. They also said the plan cuts off voter registration too early.
In Wisconsin, several groups have sued to postpone their state’s Tuesday primary or at least make it easier for voters to register and vote by mail, arguing that the virus combined with the state’s current requirements essentially disenfranchise thousands of voters. But Federal District Court Judge William Conley suggested at a hearing Wednesday that he did not believe he had the authority to postpone the voting.
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“I don’t think there’s any question that voters will be discouraged from getting an absentee ballot, much less showing up in person in voting,” he said. “But for a statewide election to be suspended by a federal judge would require some real evidence that the election itself has been wholly undermined. And I don’t think you’re going to have that until election day.”
Whichever side fails to prevail in the state lawsuits could try to appeal the ruling, even to the Supreme Court. But the justices are typically reluctant to get involved at such a late date in the process.
“The court is unlikely to see it in their core competency to supervise a state’s judgment in a primary election,” said Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the Supreme Court. “I would be quite surprised, unless a judge makes some clear legal mistake.”
Congress included $400 million in the just-passed $2 trillion economic stimulus bill to help states prepare for elections during the pandemic and its aftermath. But many experts say that figure is far too low.
“State and local officials need at least $2 billion to prepare, an amount that would cover the equipment, supplies, staffing, training and the other costs of adapting our voting processes to withstand the coronavirus,” said Michael Waldman of the Brennan Center for Justice at New York University.
Among suggestions for adjusting to the pandemic are more voting by mail, easier online or same-day voter registration, and extending time for early voting to reduce congestion on election day. Three states — Colorado, Oregon and Washington — conduct their elections entirely by mail. In 33 other states, no-excuse absentee voting is allowed, meaning ballots can be cast absentee without needing to justify doing to.
Republicans typically oppose these changes in the belief that they tend to favor Democrats.
“You can push some of these changes, especially voting by mail in particular states to the point where it will look like a Democratic grab for votes. So we need to be sensitive to that,” said Charles Stewart, a political science professor at MIT. “I might be at some point you don’t quite push as hard on the mail balloting as you might in order to stay within state norms.”
Neither the Constitution nor federal law restricts state authority to have complete control over the timing and the conduct of primary elections. But the date for the general election, Nov. 3, is set by Congress.
“We don’t know where things are going to be in November,” Potter said. “But we could be experiencing a second wave of the virus, and state election officials need to be preparing for that right now.”
Among the challenges — far greater demand for printing, distributing, and counting mail-in ballots as well as finding enough people to act as poll workers on Election Day.
“The question is, will they have the resources to do what needs to be done, and will they get the authority they need from their state legislatures,” Potter said.
