Update 435 – Democracy in the Era of Corona:
U.S. to Have a Legitimate Election in November?
Canceled primary elections, depressed turnout in elections held, the prospect of virtual conventions, massive small donor withdrawals, physical risks of in-person voting, and skewed outcomes make ballot access and democratic participation urgent matters this year. To enact even temporary reforms may require Congress to reform its own procedural rules.
The election of 2020 may end up like the 1864 election, where, despite a full-scale Civil War, Americans made it to the polls and re-elected President Lincoln in an election of unchallenged legitimacy. What are the obstacles before us today? We examine below.
Good weekends, all …
For the last month, Congress has operated almost exclusively through leadership. Committee activity and substantive deliberation for the vast majority of Members is curtailed or eliminated. The circumstances call for two democratic reforms: measures to allow Americans to cast ballots safely this year and remote voting for Members of Congress.
Congressional Voting and Procedural Reform
Right now, leadership is negotiating legislation behind closed doors, and introducing the products of those negotiations as “emergency bills.” Members are pressured to fall in line. Regular order and committee activity is non-existent. But we should not be passing unprecedented levels of spending by unanimous consent.
Longstanding tradition (and explicit rules) require physical presence to vote in both the House and Senate. Voting is just one aspect of a representative’s job. If virtual voting is put in place and works as intended, opponents argue, it would truncate legislative work periods, lengthen campaign seasons, and physically separate Democrats from Republicans. Technical challenges and cyber security concerns should also not be dismissed out of hand — e.g. how will amendments be offered?
But the necessary constraints imposed by the current crisis require a temporary period of virtual legislating. Seven members of Congress have either tested positive for COVID-19, recovered from the virus, or are presumed to be infected. There is no need to risk the lives of representatives and their family members, especially when alternatives abound.
On March 19, Sens. Dick Durbin (D-IL) and Rob Portman (R-OH) recommended a change to Senate rules to allow remote voting. On April 7, Reps. Josh Gottheimer (D-NJ) and Tom Reed (R-NY) proposed a similar rule change. A House vote on the matter was scheduled for April 23. But Speaker Pelosi jettisoned the vote amid opposition from Republican leadership. House Minority Leader McCarthy feigns concern about remote voting, while criticizing the Speaker for inaction. Now, Democrats may be poised to push through remote voting procedural reform without Republican support.
The economy is in freefall, the public health crisis continues, and it’s a presidential election year. States, municipalities, public health facilities, and businesses large and small are going bankrupt and are in need of federal aid. Congress must quickly appropriate funds and/or enact policy changes to address these emergencies. Americans also need a system in place to vote in November. Allowing legislators to vote remotely is the necessary first step.
Registration and Election Procedure
The recent Wisconsin primary debacle showed the potential for COVID-19 to cause chaos in elections. When Republicans in the state legislature refused to postpone the election, state officials closed polling places due to public health concerns, leaving mail-in voting as the only choice for many Wisconsinites. A flood of applications for mail-in ballots overwhelmed state election infrastructure. Thousands of eligible voters did not receive ballots in time for their votes to count (if they received a ballot at all). Still, more than one million Wisconsin voters cast absentee ballots last month — up from just 140,000 in the 2016 primary.
Wisconsin is one of just 17 states that allows for no-excuse absentee voting, as well as both same-day and online registration. Even the best-equipped state election systems are unprepared for COVID-19. States administer elections but lack the resources needed to upgrade infrastructure and protect our democratic process. Congress must act swiftly. If states do not receive election funds soon, they will be unable to implement the changes necessary by November.
- Same-Day, Online Voter Registration
Increasing access to the ballot box this November starts with making sure that all Americans are registered to vote. Both same-day registration (SDR) and online voter registration (OVR) systems — already in place in numerous states — must be bolstered.
Twenty-one states plus the District of Columbia allow residents to register to vote and cast a ballot on election day. But strict voter registration deadlines disenfranchise citizens who did not — or could not — register in time. States that enact SDR have seen about a five percent increase in election day turnout. There is no evidence that SDR influences partisan outcomes or benefits certain populations at the expense of others.
OVR systems are in place in 42 states plus the District of Columbia. While SDR only benefits people who show up in-person, OVR allows more citizens to register to vote without leaving their homes, which will be essential should a second wave of the pandemic occur during the colder months. These systems need to be adequately funded and scaled up.
To accommodate inevitable voter confusion, Congress should also consider relaxing voter registration deadlines. Currently, voters have until 30 days before the presidential election to register. The Natural Disaster and Emergency Ballot Act, introduced by Sens. Ron Wyden and Amy Klobuchar, would allow registration up to 21 days before the election.
- Vote by Mail (VBM)
Voting by mail allows citizens to vote while avoiding the increased health risk of showing up to a polling station in person. Five states — Hawaii, Colorado, Oregon, Utah, and Washington — already conduct their elections primarily by mail, and there is no evidence of an inherent partisan advantage or voter fraud.
VBM is popular. An April Reuters poll found that 72 percent of Americans, including 65 percent of Republicans, want a mail-in ballot option for November’s election. While we should continue to focus on ensuring that all Americans are registered to vote, an option to vote by mail this November is an effective tool to allow more people to participate.
Congress’ Role in Democracy Reform
Congress will play a role in whether we have a legitimate election this fall. Many state election funds were already lacking, and state budget shortfalls are now projected to exceed $110 billion through FY2020. The CARES Act provided $400 million in grants to help states run their elections, but this is nowhere near enough.
Per the Brennan Center, at least $4 billion is needed to ensure that this year’s elections are free, fair, and accessible. Senator Kamala Harris’s VoteSafe Act authorizes $5 billion in spending to expand voting options and improve the safety and accessibility of polling locations across the country.
States that do not currently have same-day voter registration, online voter registration, or vote-by-mail policies are unlikely to enact them before November and stand to disenfranchise millions of Americans. If Congress does not act, the fiasco that unfolded in Wisconsin could repeat itself on a national level. Legislation is on the table that would mitigate some of the worst concerns, but for progress to occur, Congress has to figure out how to get back to work.