Voting Amid COVID-19 - FindLaw
Created by FindLaw's team of legal writers and editors | Last reviewed October 20, 2020
For the first month or two of 2020, the first stages of the election season occupied a big chunk of everyone's attention. But then another topic began to make its way toward center stage. How will the COVID-19 pandemic affect the general election?
In early 2020, we'd already heard about this thing called coronavirus in China — but something thousands of miles away across a vast ocean seemed like someone else's problem. On Jan. 26, the U.S. recorded its first confirmed case. Since then, the number of confirmed cases and deaths in the U.S. have been skyrocketing at a dizzying rate, schools and businesses have closed, sports seasons canceled, entire states put on lockdown.
Although the coronavirus is dramatically changing the nation in countless ways, it's still an election year. So, how will COVID-19 affect the way Americans vote?
Much, of course, remains to be seen. We still don't know what impact the quarantines and lockdowns will have on transmission rates; we still don't know whether warmer weather or anti-malarial drugs like choloroquine might reduce the numbers. Maybe life will revert to something resembling normalcy by summer. And maybe not.
Can the General Election Be Delayed? Or Even Canceled?
So much about COVID-19 remains guesswork, including the impact it may have on this year's general election. Given the uncertainty, probably the biggest question on everyone's mind is: Might the November general election be delayed — or even canceled?
The answer is: Highly unlikely. Things would have to be really, really bad.
If, for instance, President Trump would declare a national emergency, it wouldn't give him the power to postpone an election on his own. A national emergency would only provide him powers that are specified in federal law, and none of those would give him the power to change when we vote.
The date of the general election and the date when the Electoral College casts its votes are specifically identified in federal law — this year those dates are Nov. 3 and Dec. 14 — and it would require an act of Congress to move those dates.
If the date is pushed back, there is another fixed-in-stone date not far down the road that would be even more difficult to move. The U.S. Constitution states that at noon on Jan. 20, the term of the current president must end. Getting around that requirement would require a constitutional amendment, which requires a two-thirds majority of both the House and Senate. Clearly, this is extremely unlikely.
Looking to the Spanish Flu of 1918 as a Guide
It is entirely possible, though, that the coronavirus pandemic really will be a major emergency as Election Day nears. In trying to predict how the country would deal with that, it might help to look at history to see how Americans have handled elections in similar dire circumstances.
In 1918, the Spanish flu swept through the U.S. during the mid-term elections, killing a half million people (the equivalent today would be more than 1.5 million), and the elections that November were held on their normal dates. Then, as now, wide-scale quarantines were in place, but were lifted for the election.
Many polling places required the wearing of face masks and measures to keep voters separated from each other, but the voting went on as normal. In the end, voter turnout that year was 20% below the two previous midterm elections, but part of that decline can be attributed to the fact that about 2 million American men were fighting overseas in World War I.
A Push for Absentee Voting
One big difference between 1918 and 2020, however, is in how Americans can cast ballots. In 1918, voting had to be on-site; now, however, most Americans are able to cast absentee ballots by mail.
While most can cast mail ballots, however, not all can. Sixteen states place restrictions on mail voting by requiring people to provide a reason for their request. The emergence of COVID-19 has prompted a movement to expand absentee voting to all 50 states. On March 18, Democratic senators Amy Klobuchar of Minnesota and Ron Wyden of Oregon introduced a bill that would allow voters in every state to either mail in or drop off paper ballots if at least 25% of all states have declared an emergency.
The Brennan Center for Justice, an independent think tank, recently issued a report on how to make the elections this year safe for everyone and broadening absentee voting was part of their recommendation. Congress would need to allocate $2 billion to provide this broad safety, the report said.
The Role of the States
One of the peculiarities of American election law is that it is the states that administer elections — not the federal government. So, what the states might end up doing in the face of the coronavirus is also an unknown. As of March 20, seven states had postponed their primaries, and more appeared certain to follow.
States are not even necessarily bound to have their elections on General Election Day. The Dec. 14 date for the Electoral College votes, however, is an important one for all states to meet. If there is a loophole for a president or political party to step through to cancel an election and hold on to power, this is it.
Attorney Mark Joseph Stern, writing in Slate, describes a dire scenario: "The election is approaching, and the coronavirus remains rampant in our communities. States are unsure whether they have the personnel and resources to hold an election. Congress has failed to mandate no-excuse absentee balloting, and many states have declined to implement it. Or the postal service is so hard hit that it cannot reliably carry ballots to and from voters' residences."
In that scenario, he writes, the president could legally ask Republican-controlled legislatures to assign their electoral votes to him, despite the fact that citizens cast no ballots. "Put simply," Stern wrote, "it is perfectly constitutional for a state legislature to scrap statewide elections for president and appoint electors itself."
In another scenario, widespread mail-in voting occurs, but it takes longer to count those ballots, causing a delay that could lead to false claims of victory by one candidate or one side. If this happens, the situation could take any number of complicated turns that are described by MapLight, a nonpartisan educational organization. For instance, delayed counts in a close election could result in a state naming two different sets of presidential electors by the Dec. 8 deadline. "In the current political climate, it's entirely possible ... that time-consuming legal challenges by losers could spur different states to take different approaches to naming electors, which then would also be likely subject to legal challenges."
After the general election, presidential electors must be named by Dec. 8 -- six days before the Electoral College meets. In a close election, delays and recounts could mean that a state could name two different slates of electors
There's a long way to go and there's no telling how big a toll COVID-19 will take. What happens when states can't hold primaries? Or when parties can't hold conventions? Or when America is too sick to vote?
We don't really know.