By Marc Elias

April 2020

When the history of voting rights in 2020 is written, there will be what happened before the Wisconsin primary and what happened afterwards. On April 6, in order to try to win a state judicial election, Republicans forced voters in Wisconsin to go to the polls and vote in the middle of a pandemic. Despite efforts by the Governor and the pleas of the public, Republicans believed that their best hope to win that election was low voter turn-out in Milwaukee and across other urban centers in the state.

The Wisconsin election was a wake-up call on a number of fronts. First, we saw what the pandemic can do to our fragile election processes – with only five of more than 180 polling locations in Milwaukee open and voters having not even received their mail ballots before the election. Second, it vividly illustrates how far Republicans will go to win an election. As I said on election night to Chris Hayes, “if this is what the Republicans will do for a judicial election in Wisconsin…just imagine what Donald Trump and the Republicans will do in November.”

Perhaps, most importantly, the Wisconsin primary underscored the vital role that the judicial process will play in this election. In the days leading up to the election, we sued Wisconsin on behalf of the DNC and the Wisconsin Democratic Party to protect Wisconsinites’ voting rights. Over the course of several days, we won several important victories—extending deadlines for absentee ballot applications and online registration. We lost on a key issue of whether a witness requirement could be waived. Most notably, we went to the U.S. Supreme Court on the issue of when absentee ballots would be due in order to count in the election. When the conservative justices ruled 5-4 and reversed the lower court’s ruling, it was widely reported that we lost.

However, overlooked by much of the press was that in that “loss” was a key victory—the Court adopted the “postmarked by” Election Day standard that we have advocated for nationally. This ruling will substantially support the other vote by mail cases we are filing in other states. As the Washington Post subsequently wrote, “A Democratic lawsuit challenging Arizona’s absentee ballot deadline is citing the Supreme Court’s recent ruling about the Wisconsin primary to support its case, arguing that the decision to allow absentee ballots to count in Wisconsin if they were postmarked on or by Election Day should also apply in Arizona.”

The take-away from Wisconsin is clear: voting rights and the rules of voting are going to matter more in 2020 than ever before and the Republicans are going to take unprecedented steps to fight against access to voting. After initially saying that the RNC would spend $10M in court to fight against voting rights, they recently said they will spend whatever it takes. If you want a good overview of the legal significance of Wisconsin’s election, listen to my discussion with Dahlia Lithwick on the podcast, Amicus.

Finally, there has been a great deal of debate over how America should vote in 2020. On one side are those who argue that we need to move to an entirely vote by mail election; on the other side are those who want to keep all voting in-person. As I discuss below, the answer must be all of the above.


 

New Vote by Mail Litigation

As described above, Wisconsin’s April primary— held in the middle of stay-at-home orders— was a disastrous example of how unprepared most states are to move to vote by mail, while still providing safe in-person voting options this election cycle. After releasing my four pillars of vote by mail safeguards last month, and seeing exactly what can go wrong without these protections in place, we filed four lawsuits specifically addressing these issues, with many more to come in May. As of today, we have filed vote by mail lawsuits in Nevada, South Carolina and Pennsylvania.

We are also bringing litigation to force states that only allow no-excuse absentee voting for those over 65 to adopt it for all voters. The 26th Amendment prohibits age-based discrimination in voting for those over 18-years of age. Yesterday we sued Texas on behalf of a group of young voters who wish to vote absentee this fall.

Most states are vastly unprepared for moving to vote by mail before summer primaries and the general election in November. Recognizing this reality, we researched how all 50 states held up to our four safeguards and shared our findings in a recently-released report. These insights have been instrumental to informing our litigation efforts and we hope that they will help guide organizing and activism through Election Day.

Read more about these four pillars here.

At the same time, we continue to win major victories. Just last week, we forced Michigan to change their absentee ballot process of rejecting applications and ballots for signature mismatch. Prior to our lawsuit, Michigan lacked uniform standards and procedures for reviewing signatures, and election officials lacked training to accurately compare signatures. Most importantly, the law did not require election officials to notify voters that their application or ballot had been rejected. As a result of our lawsuit, the Michigan Secretary of State revised the state’s guidance so that voters are immediately informed of a missing or mismatched signature and election officials are sufficiently trained on how to perform signature verification.

After a multiyear battle, Florida finally settled with us over our case involving early voting sites located on college campuses. In 2018, the court held that the state’s policy banning college campus early vote sites violated the 26th Amendment by discriminating against young voters. Last summer, the Florida legislature again passed a law that effectively prevented early voting sites on college campuses. We immediately sued on behalf of the League of Women Voters of Florida and the Andrew Goodman Foundation. A few weeks ago, the state settled and issued a new directive that interpreted the law to allow colleges to have early vote sites—a huge victory for student voters in Florida.

We also won another student voting case this month: our case in New Hampshire overturned a Senate Bill requiring people to submit proof of domicile when registering to vote or face criminal penalties. Under the bill, a new voter, who was fully eligible to vote in New Hampshire, could have been fined $5,000 and/or faced a sentence of up to a year in prison if they failed to return the confusing and lengthy paperwork required by the bill. The court struck down the bill as unconstitutional and found that the law specifically inhibited young voters, college students, mobile voters, low-income voters, and Democrats from registering and voting in New Hampshire. As a result of this victory, young voters will now have an equal opportunity to register to vote and cast their ballot. This victory will also help reduce long lines on election day—a major concern facing all states providing in-person voting this November.

Regardless of whether we are social distancing or not, there will still be many people who will wish to vote in-person, even if voting by mail is an option. States must make sure these voters are not further disenfranchised by coronavirus. We created five requirements for safeguarding in-person voting that states should adopt in tandem with our vote by mail pillars. The five rules are:

  1. States must grantee staffing at polls by turning to staff at state agencies and to students
  2. States should expand curbside voting for voters of all ages
  3. States must expand early voting to include weekend voting
  4. States should adopt vote-anywhere or vote center rules, allowing voters to cast their ballot in any polling place in their jurisdiction
  5. States should develop systems that allow voters to sign up to reserve a time to vote during off-peak hours

You can read more about these rules and how they will protect voters in November in my article in the Atlantic.


 

April Spotlight: Stand Up for Vote by Mail

This month, we are highlighting the work of the non-profit, Stand Up America. Stand Up America is a progressive community of activists focused on “standing up to corruption and strengthening our democracy across the country.” Their organizing team has driven over a million calls to lawmakers on local and national issues. Recently, they’ve shifted their focus to vote by mail, organizing communities to demand that Congress funds vote by mail efforts across the country. You can call your representatives using Stand Up America’s action tool here.

We want to hear from you! If you want us to highlight what you or your organization is doing to fight voter suppression, please tell us here.

 

What I’m Reading

A new paper, “Voting by Mail and Ballot Rejection: Lessons from Florida for Elections in the Age of the Coronavirus,” showed the existing problems with voting by mail that will likely be exacerbated by coronavirus. The study examined over 8.2 million ballots cast in the 2018 Florida General Election. 2.6 million voters voted by mail, of which 1.2 percent were rejected by local election officials. The researchers found that younger voters, voters with disabilities and Hispanics were disproportionately more likely to have their ballot rejected. For example, the rejection rate of mail ballots cast by 18-21-year-olds was 5.4%, while 65+ voters had only a .6% rejection rate. “The findings suggest that a wholesale transformation in the United States away from in-person voting must be promulgated carefully if those implementing this transformation want to ensure that ballot rejection rates do not disproportionately affect some voters more than others.

The New York Times analyzed the outcome of the controversial Wisconsin primary and showed how a large shift from in-person to mail voting can affect a 2020 election. Their reporting found that the liberal candidate in Wisconsin’s State Supreme Court race performed 10 percentage points better than her opponent in votes cast by mail, “upending years of study showing little advantage to either party when a state transitions from in-person to mail voting.” This data shows the results of a huge organizing effort by Democrats around vote by mail, and one that we can hopefully replicate in future elections. “The Democrats proved they can mobilize their voters to vote by mail.”


 

What Bode’s Barking About

“States need billions to ensure safe elections.” CNN

“Trump campaign declares war on Dems over voting rules for November.” Politico

“From Nevada to Pennsylvania, voting rights battles erupt in key swing states.” Ms. Magazine

“As mail voting pushed, some fear loss of in-person option.” AP News

“Can Trump Cancel or Postpone Election Day?” NowThis

NEWS: Dem Super PAC @prioritiesUSA is backing a new lawsuit seeking to expand Pennsylvania’s vote by mail laws: https://t.co/nWf9qX79Ia

— Jonathan Tamari (@JonathanTamari) April 22, 2020

 

Safety should be top-of-mind for the November election. My VoteSafe Act would do just that and give grants for states to:

Expand curbside voting
Publish current wait times for voters
Provide pre-paid postage for mail-in ballots

— Kamala Harris (@KamalaHarris) April 17, 2020