Voting During a Pandemic

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.

Eugene D. Mazo, Voting During a Pandemic, SSRN Papers, 2020.