Steve Fedder Comments on Law Day Voting Rights Theme, The Daily Record, April 30, 2020
Law Day 2020: Voting in a time of pandemic
By: Special to The Daily Record Steven K. Fedder April 30, 2020
This year the ABA celebrates May 1 — Law Day — with the theme of “Your Vote, Your Voice, Your Democracy.” The 19th Amendment turns 100, guaranteeing the right of all citizens — women too — to vote. This timely topic was selected in interesting times.
The state of Wisconsin is so far the only state to conduct an election with in-person voting during the stay-at-home order of its governor. According to WUWM Milwaukee, at this juncture 40 coronavirus cases have been linked to voters who went to the polls on April 7. How many victims of the pandemic will be traced back to those 40 may never be known.
Wisconsin Gov. Tony Evers, who defeated GOP darling Scott Walker by a narrow margin in the 2018 general election, issued an executive order postponing in-person voting and extending the deadline for mailing absentee ballots. Recognizing that many would-be voters would have to make a choice between voting and potentially being exposed to the virus and not voting, Gov. Evers acted.
The Wisconsin legislature, dominated as a result of gerrymandering by Republicans, sued to block the governor’s order. Both the Wisconsin Supreme Court and the U.S. Supreme Court ruled, along partisan lines, to overturn the executive order. The next day the election was held, and after all of the ballots were counted, the Democratic candidate for a seat on the state Supreme Court, the Democratic challenger Jill Karofsky, outpolled the Republican incumbent by more than 120,000 votes – more than four times the margin enjoyed by Evers two years before.
Republicans had taken over the governorship and a majority in the State Assembly in 2011 and redrew the legislative map to ensure the party would dominate. It worked. In the 2018 election, Democratic candidates drew 190,000 votes for Assembly seats, but Republicans gained a 64-35 advantage in the chamber.
Meanwhile, the U.S. Supreme Court, again aligned by party, voted 5-4 to dismiss two cases challenging partisan gerrymandering by North Carolina (by Republicans) and Maryland (by Democrats). Writing for the majority, Chief Justice John Roberts said, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” At that time, a challenge to Wisconsin’s gerrymandering, perhaps the most egregious in the nation, was working its way through the lower courts. It too was doomed.
The Karofsky victory came as a shock to both parties – not just because of the margin of victory itself but because the newly elected justice enjoyed a greater margin of victory from mail-in ballots than from in-person voting. Common wisdom has always been that Republicans perform better than Democrats with absentee and mail-in ballots. Not this time, and the shock waves went all the way up to the White House.
President Donald Trump candidly acknowledged that if the United States switched to all-mail voting “you’d never have a Republican elected in this country again.” He has also said, “I think a lot of people cheat with mail-in voting.” So which is it? Is he worried about voter fraud or is he worried about reelection?
In 2013, the Supreme Court, again by a 5-4 ideological majority, gutted the Voting Rights Act in Shelby County v. Holder. The Voting Rights Act targeted states and jurisdictions with a history of discriminatory voting practices by requiring them to “preclear” any new election laws. Writing for the majority, the chief justice said, “A statute’s ‘current burdens’ must be justified by ‘current needs,’ and any ‘disparate geographic coverage’ must be ‘sufficiently related to the problem that it targets.’”
Republican legislatures were quick to act. The North Carolina legislature enacted legislation that cut back early voting, eliminated same-day voter registration and imposed strict voter ID laws. The new law was challenged and struck down by the U.S. Court of Appeals for the Fourth Circuit, which noted that “in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race – specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”
But what of the claim that easier access to voting leads to voter fraud? The 2016 presidential election had close to 138 million votes cast. Next to no incidents of voter fraud were reported in a survey of all 50 states.
With social distancing the rule for now, the answer to the question of whether mail-in voting should be discontinued has an obvious answer. Given that there is no evidence that expanding voting opportunities contributes to voter fraud and the evidence that in-person voting has caused many to suffer from exposure to the coronavirus, mail-in voting should be extended to give more people access to their constitutionally guaranteed right to vote.
Steven K. Fedder, an attorney with Fedder and Janofsky, can be reached at sfedder@mdcounsel.com.
