We’ve all been a little preoccupied recently with the pandemic, trying to stay safe and keep our practices alive. While we all shelter in place much has been happening that affect our civil rights and I want to bring some attention to these erosions.
The biggest ones are once again in the realm of voting rights. Let’s look at them chronologically.
To start, some positive news. In November 2019, South Carolina Democrats sued the state which was one of only four states that required a voter’s entire social security number to register to vote.[i] In January they reached an agreement to require only the last four digits.[ii] The argument was that this requirement would have a chilling effect on registration for those who were wary of sharing their full social security number and contributed to the overall burden of voting as to inhibit the activity altogether.
Next, a mixed experience. Wisconsin was looking at a massive voter purge. I wrote about this in December.[iii] The case has been appealed to the Wisconsin Supreme Court. The Court has not decided whether they will take the case yet. Wisconsin continues to fight voter registration. The state had an election scheduled for April 7, 2020.
This election was critical since a seat on the Wisconsin Supreme Court was up for grabs. Republican Justice Daniel Kelly’s ten year term was up and he was seeking re-election. Since the election was happening during the Corona crisis, election officials feared being overwhelmed by absentee ballots and were having trouble finding people to work polling locations. Governor Evers used the National Guard to staff the election sites.
The Democratic Governor proposed to mail absentee ballot applications to all registered voters. The republican controlled legislature refused. Evers also tried to postpone the election but the State Supreme Court struck this down as well.
Absentee ballots were to be received by the election board by 8pm on April 7. Considering the late onset of the pandemic, there was a concern that voters might not get their ballots in time to return them. A judge issued an order protecting absentee voters who might get their ballots, extending the deadline to April 13. The Republican National Committee went to Justice Kavanagh on the US Supreme Court seeking to restrict the time frame to ballots postmarked by April 7. The Supreme Court in a 5-4 decision granted the change.[iv] So the Republicans forced in-person voting during a pandemic.
Despite all this effort to restrict voting, the results were disappointing for Republicans. Liberal Judge Jill Karofsky defeated Justice Kelly 55% - 45%. This will bring the Republican majority from 5-2 down to 4-3. However, Karofsky doesn’t take office until August. The voter purge appeal has not been approved or scheduled yet. Initially Kelly indicated that he would recuse himself from the appeal due to his loss. Recently though he has reversed and said he might participate.[v]
The end result is that the Republicans used many different strategies to try to restrict voting and they were largely able to effect those strategies, but they didn’t work. The story of the Wisconsin election is well described in an article on Vox.com[vi]
Next, Kentucky. In April, the state legislature passed a voter ID law that requires voters to present a government issued photo ID to vote. Democratic Governor Andy Bashear vetoed the bill and the heavily republican legislature overrode the veto. I’ve discussed the discriminatory nature of voter ID requirements, and their uselessness previously.[vii] One big issue is the difficulty marginalized people have in obtaining valid ID. Somewhat not surprisingly, Kentucky ID issuing offices are closed due to the pandemic.[viii]
How about Texas? The language of their absentee ballot law says that it is available for senior citizens and the disabled. The election code includes the language “if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on Election Day.” On April 15, 2020 the Texas Attorney General issued guidance that fear of contracting a disease is not a valid reason for an absentee ballot.[ix]
He goes so far as to state that third parties that advise voters to apply based on fear of COVID-19 could be subject to criminal sanctions.[x] There’s a potential First Amendment issue here as well as the prevention of attorneys best advising their clients.
There was an immediate lawsuit and on April 17, 2020 Travis County District Judge Tim Sulak issued a temporary injunction directing the County of Travis and State of Texas accept applications based on COVID-19 fears.[xi] The Attorney General appealed the order and issued another statement restating his position that the COVID-19 basis is still invalid.[xii] The ACLU points out that this latest letter is non-binding and is a misstatement of the law.[xiii] So we have an Attorney General in Texas who is ignoring a judge’s ruling that he doesn’t like and is determined to prevent voters from voting safely from home during a pandemic.
That’s all for now. No doubt there will be more.
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.