Pandemic Elections | The University of Chicago Law Review

A Part of the series

TABLE OF CONTENTS

The year 2020 will go down in U.S. history as a year of myriad unprecedented events that transformed American life. Just this year, the United States has grappled with the devastating effects of a pandemic that has caused the loss of hundreds of thousands of lives and livelihoods. It has seen widespread mass uprisings in response to the continued racial violence and discrimination inflicted upon African Americans. But one event of tremendous importance for U.S. economic, political, and social development is still yet to occur: the 2020 general election.

The 2020 general election will take place during a period of extreme political polarization in the United States. This election will decide who will carry our country through the challenges of the next few years and beyond. It will determine which issues the nation prioritizes and what policy changes are instituted to pursue those priorities. It is no overstatement to say that the results of the 2020 general election could change the course of American history.

As the articles in this series indicate, this year, more than ever, participation in the electoral process is critical. Yet, participation in the electoral process will face greater impediments than ever witnessed in modern times, due to the COVID-19 pandemic. These articles emphasize the crucial roles that state and local governments, election officials, the private sector, and the courts can play during this pandemic to protect our republic in 2020 and the years to come.

The series begins with Professor James Gardner’s article, Democratic Legitimacy Under Conditions of Severely Depressed Voter Turnout, which suggests that lower-than-usual voter turnout due to the pandemic will pose severe risks to the legitimacy of our democratic regime. Professor Gardner explains the importance of democratic legitimacy to the health of our republic and forewarns of the potential negative consequences of a perceived loss of legitimacy. His article suggests the importance of taking measures to prevent involuntary and systematic voter abstention.

Next, Voter Registration in a Pandemic by Professor Daniel Tokaji discusses the negative effects the pandemic may have on the first step of the voting process—voter registration. To preempt these negative effects, Professor Tokaji suggests four actions that can be taken to increase registration rates: (1) expand online registration; (2) expand same day registration; (3) count the votes of eligible citizens who have moved or been removed from the rolls; and (4) involve the private sector in helping voters register or update their registration. These efforts, Professor Tokaji argues, will increase voter registration and voter participation in the 2020 general election.

Third in the series is Professor Richard Pildes’s article, How to Accommodate a Massive Surge in Absentee Voting. The pandemic is expected to increase absentee voting dramatically, placing unprecedented pressure on voting officials and the democratic process. To relieve this pressure, Professor Pildes offers five recommendations: (1) move back the dates for completing canvassing and certification of the vote; (2) move up the deadline for requesting absentee ballots; (3) move back the date by which absentee ballots must be returned; (4) move up the date on which returned absentee ballots can be prepared for counting; and (5) move back the date by which the Electoral College must vote, as well as the date by which a state must choose its electors. Professor Pildes argues these changes are crucial to address the oncoming crush of absentee ballots and preserve the accuracy and legitimacy of the general election.

In Election Law Localism in the Time of COVID-19, Professor Richard Briffault draws attention to the role that local election officials play in increasing voter participation during the pandemic. Professor Briffault cites examples of local election officials in Arizona and Texas who have read state election provisions broadly in order to facilitate greater access to voting for those affected by the pandemic. He also discusses other instances in which local election officials have treated state election law “as a floor and not a ceiling.” Local election officials, Professor Briffault contends, have a powerful role to play in protecting the right to vote from encroachment during the pandemic.

Professor Rick Hasen’s article, Direct Democracy Denied: The Right to Initiative in a Pandemic, shifts the focus away from voting; instead, Professor Hasen sheds light on the ways in which the pandemic has made it more difficult to qualify ballot initiatives. In response, he suggests easing ballot measure qualification requirements during the pandemic. But he notes the importance of striking a balance between protecting the First Amendment rights of direct democracy participants and respecting principles of election administration, federalism, and separation of powers.

The series concludes with Professor Nicholas Stephanopoulos’s article, Election Litigation in the Time of the Pandemic, which emphasizes the role of the courts in preserving democratic legitimacy. The article explains the burden-shifting framework that courts are applying in pandemic-related election law cases, as well as how the framework should be applied. In accordance with lower court rulings, and contrary to the Supreme Court’s position, Professor Stephanopoulos argues that courts must consider the ways in which the pandemic makes existing election requirements more burdensome when adjudicating pandemic-related election law cases.

The articles in this series expose the unsuitability of our current system of election administration for pandemic times, and they warn of the dangers to democratic legitimacy if these flaws are not corrected in time. But the series also makes clear that it is not too late to properly prepare for the 2020 general election. Many different institutional, private, and individual actors can take steps to expand access to voting and ballot initiatives and to ensure every vote is counted. Such preparations will strengthen the legitimacy of the 2020 general election. And legitimacy is immensely important in times as perilous and polarized as these.