Trump, however, has spent the past several months lying about mail voting by making baseless claims that it leads to voter fraud. Meanwhile, a rushed census exacerbates the already heightened risk of undercounts of certain populations, such as those who lack internet access or live in remote areas, due to the pandemic. These populations are disproportionately communities of color.
Combined, these two moves represent a twin attack on American democracy by making it perilous for voters to vote safely from home this fall, and by undermining the foundations of political representation through a whitewashed redistricting and reapportionment process.
Trump has repeatedly disparaged mail voting by claiming without evidence that it’s rife with fraud, even though Trump himself and many of his top officials have voted by mail repeatedly and say they will do so again in November. He also recently appointed a new postmaster general, Louis DeJoy, who is a major fundraiser for Republican candidates and is the first person to hold the job in two decades who is not a career postal worker.
Reports soon emerged of unexpected mail delivery delays thanks to policy changes DeJoy has implemented. DeJoy has claimed that these measures are necessary for cutting costs, but in truth, he is almost certainly acting on Trump’s orders to slow down delivery times so much so that voters either won’t receive their ballots on time or won’t be able to mail them back in time to meet their state’s deadlines.
Voting experts and advocates have widely recommended voters switch to voting by mail this year to avoid risking their health and further spreading the coronavirus, but Trump’s sabotage now has those experts offering additional warnings. Voters should still strongly consider voting by mail, they say, but if they do, they must make sure to mail back their ballots at least one week before their state’s deadline to return their ballots, and preferably earlier. If local officials allow voters to return mail ballots at secure drop boxes or local election offices, voters should use that option to avoid relying on mail delivery.
It’s unclear just how disruptive Trump’s attack on mail voting will prove to be, but voters should also consider whether it is less risky to vote in-person if their jurisdictions are taking proper steps to prevent spreading the virus. Many states offer in-person early voting, which can alleviate the likelihood of long lines on Election Day. Those voting in-person should take precautions such as wearing a mask, using hand sanitizer, and bringing their own pens to avoid reuse.
Trump’s demagoguery against mail voting has also had an effect on Republican voters, with poll after poll showing that a much higher proportion of Democrats plan to vote by mail than Republicans. That potential for a partisan disparity in how people cast votes is unprecedented at this scale and could have catastrophic consequences if Trump gets his way. Most alarmingly, it is enabling Trump to execute a strategy of delegitimizing Democratic votes by casting doubt on the integrity of mail voting.
Because many states either accept ballots that are postmarked by Election Day but aren’t received until a few days later, or don’t let election workers begin processing mail ballots until after the polls close on Election Day, potentially millions of valid mail ballots won’t be counted on election night. With Democrats much more likely to vote by mail, there is a high chance that Trump will be ahead on election night in key states based solely on a partial tally of the vote, even though mail ballots may change the outcome once they are all counted.
Trump has effectively signaled that he plans to claim victory based only on partial returns and will contend that mail ballots counted afterward are somehow fraudulent. Trump did this very thing in the 2018 midterms in Florida and elsewhere, and his hardcore backers are primed to be receptive: YouGov poll released on Friday found that most Trump supporters would not accept a close Biden victory that was decided by mail voting.
Further worsening matters, Trump suggested delaying the election this past week— despite having no constitutional authority to do so whatsoever—and claimed the election would be rigged. While Trump’s tweet on the subject was met with widespread condemnation and opposition, even from many Republican elected officials, that he would even propose a delay is further indication that he simply will not accept the election result if he loses, something that he recently refused to rule out. During the 2016 election season, Trump implied he would do that very same thing if he lost that year, and after he lost the popular vote, he claimed without a shred of evidence that his loss was due to fraud.
Even if the country avoids a November catastrophe of mass voter disenfranchisement, a contested election, and widespread civil unrest that would likely follow, Trump’s interference with the census by ending in-person counting early threatens fair elections for the next decade and even beyond.
Trump has long tried to weaponize the census against Latinos and Democrats, something that explosive documents from a top GOP redistricting expert revealed last year. While the Supreme Court effectively stopped him from adding a citizenship question to the 2020 census, Trump issued an executive order in July to exclude undocumented immigrants from the reapportionment of congressional seats and Electoral College votes among the states. Now, the census is moving up its timeline for finishing in-person counting, a move that is also likely intended to undermine the representation of Latinos and other communities of color.
There are now at least seven different federal lawsuits challenging Trump’s reapportionment order, which should stand a good chance of success given Supreme Court precedents and the Constitution’s mandate to count the “whole number of persons” for reapportionment—if the Supreme Court doesn’t suddenly find a way to take Trump’s side. However, it’s unclear what can be done to ensure an accurate census count if the Census Bureau can’t reach respondents in disadvantaged communities.
The 2020 census took years of planning, and there’s no contingency in place for a do-over if there’s a fundamentally failed count. If Trump gets away with undercounting millions of Americans, the consequences would reverberate for years to come because it would not only distort redistricting after the 2020 census but after the 2030 census as well. We can know this because in many states, the lawmakers elected under districts drawn after 2020 will themselves be the ones drawing districts after 2030.
Donald Trump may finally be realizing that he is losing badly in the polls and stands little chance of convincing enough voters to support him after his mishandling of the greatest crisis to affect the country in 75 years. But instead of trying to win over voters, he is doing everything he can to prevent Democrats from voting, and to discredit the legitimacy of the election if he nevertheless still loses. These attacks on fair elections are the biggest threat to democracy in America since the Civil War, and even if Trump is no longer president come Jan. 20 next year, he has already done serious long-term damage to our political system.
Voter Registration and Voting Access
● New York: Voting rights advocates have filed a motion asking a state court to require that New York shorten its registration deadline from 25 days before Election Day, which is one of the earliest deadlines in the country, to just 10 days before Election Day, which is the latest allowed by the state constitution. This lawsuit was originally filed two years ago but has yet to be resolved.
● Kansas: A state court has dismissed a Democratic-backed lawsuit seeking to require that Republican Secretary of State Scott Schwab implement a law passed with bipartisan support in 2019 to let counties decide whether to switch to a system of “vote centers,” locations where any voter within a county may cast their ballots, instead of using traditional polling places. Schwab has claimed that he wouldn’t be able to devise regulations and procedures for implementing the law in time for 2020.
However, the ruling may not represent a loss for the plaintiffs, since the court determined that county officials have “complete discretion” over implementing the law, regardless of whether Schwab issues regulations or guidelines for county officials. There’s no indication yet if either party will appeal.
● Minnesota: A state court judge has issued a ruling temporarily blocking Minnesota from enforcing certain limitations on who can assist voters with completing or submitting absentee ballots while the case awaits final adjudication. State law prohibits a person from aiding more than three voters with these tasks, which Democrats argued violated both the state constitution and federal law by discriminating against people with disabilities and naturalized citizens in need of translation assistance.
● California: A state Court of Appeals panel has overturned a lower court ruling that found that the city of Santa Monica had violated both the California Voting Rights Act (CVRA) and state constitution by electing its City Council in a way that intentionally discriminated against Latinos. Election expert Rick Hasen deemed this ruling a major blow to the CVRA and predicted that it would lead to a wave of localities resisting lawsuits challenging their electoral systems under the law if the decision survives.
Democrats passed the CVRA in 2002 as a way to make it easier for jurisdictions with sizable Latino and Asian populations to be able to elect their preferred candidates in certain districts. The CVRA does this by making it easier to bring lawsuits challenging the use of at-large districts, where all seats are elected jurisdiction-wide, and have courts order the use of district-based elections instead. Under such a system, some districts can be drawn to elect Latino or Asian candidates if those communities are geographically concentrated.
While the CVRA was modeled on the federal Voting Rights Act, it goes further than the federal law. Under the CVRA, plaintiffs need only show the potential dilution of minority groups’ votes, whereas the federal equivalent requires (among other things) a demonstration of actual vote dilution. This latest ruling, however, rejected the lower court’s command that Santa Monica must hold district-based elections by determining that the CVRA does in fact require a demonstration of vote dilution just like the federal law.
The appeals court also rejected the lower court’s findings of fact that white Santa Monica officials had intentionally discriminated against Latino voters. The plaintiffs have not yet indicated whether they will appeal.
Since the passage of the CVRA, a wave of litigation has prompted local governments around the state to switch to district-based elections. Hasen predicted that this ruling would turn the tide against such plaintiffs if it’s upheld, but it might also prompt Democratic state legislators to pass new legislation or even a constitutional amendment to strengthen the protections intended by the existing law.
● New Jersey: New Jersey Democrats have passed a constitutional amendment along party lines that would delay legislative redistricting from 2021 until 2023 if the Census Bureau doesn’t provide the necessary data to draw new lines by Feb. 15 of next year, an approach that would also apply to all future decades. But while it might appear that Democrats are responding to a potential delay in the release of census data due to the coronavirus pandemic, the move would instead chiefly protect current incumbents from having to face new voters for an extra two years.
New Jersey is one of two states (alongside Virginia) that is set to hold legislative elections next year, but to draw new maps in a timely fashion, the state will need granular population data from the Census Bureau, which is normally delivered by March 31. In past decades, the bureau has provided this data to New Jersey and Virginia before its usual deadline—in 2011, it delivered the data on Feb. 3—but because of the pandemic, the bureau has requested that Congress authorize a four-month delay.
While a delay might disrupt New Jersey’s current timeline, which calls for an early June primary and likely an early April candidate filing deadline, redistricting reformers have said the Feb. 15 deadline is too early. They note that the state could receive the necessary data weeks or even a few months later and still be able to redistrict in time to hold elections next year, particularly if officials postpone the primary, as they did in 2001 (and as they did this year due to the coronavirus).
If, however, redistricting is delayed, the state’s current legislative maps would remain in place through 2023, giving lawmakers the chance to run once more in their familiar districts, and making it less likely they’d face primary challengers. But the biggest adverse impact would be borne by New Jersey’s growing Asian and Latino populations, who would see their political power diluted because the districts in their areas would not be adjusted to reflect that population growth for an additional two years.
Redistricting reformers are urging voters to reject this amendment at the ballot box in November. If the amendment fails, New Jersey would likely see litigation if the census is unable to deliver the needed data on time. Congressional redistricting, however, would be unaffected since the next federal elections after the census won’t take place until 2022.
Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.
● District of Columbia: The D.C. Board of Elections has announced that it will double the number of polling places it had planned to open in November from 40 to 80. While D.C. announced in June that it would mail every registered voter a ballot for November, in-person voting will still be important for those who can’t easily vote by mail, and especially so if postal delivery delays continue to be a problem. D.C. operated only 20 polling places during the June primary, many of which experienced extremely long lines as a result.
● Florida, North Carolina, Texas, Virginia: Florida’s GOP Secretary of State Laurel Lee has reached an agreement with advocates for blind voters in a federal lawsuit that will require Miami-Dade, Nassau, Orange, Pinellas, and Volusia Counties, which are home to one-fourth of Florida’s registered voters, to protect visually impaired voters’ right to vote a secret ballot. Such voters will be able to obtain their ballots electronically and fill them out using special software before printing them out and mailing them in, a system that is already available to military and overseas voters. Florida also agreed to implement the same system statewide by 2022.
Meanwhile, blind voters have also filed federal lawsuits in North Carolina, Texas, and Virginia challenging absentee voting inaccessibility in those states and seeking remedies similar to the one agreed to in Florida. Advocates for blind voters have met success in court in several other states since the start of the pandemic.
● Idaho, Michigan: The Supreme Court has stayed a lower court ruling that had ordered Idaho officials to allow proponents of an education-funding initiative to gather signatures electronically in an effort to get onto November’s ballot. This ruling is the first of the pandemic to see the Supreme Court weigh in on a case involving the loosening of rules for ballot measure access, and it’s an indication that the justices are likely to block similar rulings in other states where proponents are trying to place electoral reforms on the ballot.
Supporters of a criminal justice reform ballot initiative in Michigan were also poised to go before the Supreme Court after Democratic officials appealed a ruling easing the state’s signature requirements. However, that case ultimately short-circuited after initiative proponents said they discovered that they had mistakenly obtained far fewer signatures than they had originally told the court. Backers moved to dismiss their own case, leading Democratic state Attorney General Dana Nessel to withdraw Michigan’s petition for the Supreme Court to step in.
● Michigan: County lawmakers from both parties in Oakland County, a suburban county north of Detroit whose 1.3 million residents make it the second-largest in the state, voted unanimously to prepay the postage on absentee mail ballots for the November elections, making it the first in the state to do so.
● Missouri: St. Louis County, a suburb of St. Louis whose 1 million residents make it the most populous in Missouri, will let voters vote at any polling place within the county and offer curbside voting at polling places. Given the difficulty that election officials around the country have had in finding enough poll workers, switching to this system could allow officials to reallocate poll workers and resources to where they are likely to be most needed.
● Nevada: Redistricting reformers have announced that they are giving up on an effort to put an initiative on November’s ballot to create a bipartisan redistricting commission after they only obtained 12,000 of the nearly 100,000 signatures that were needed. A court had extended the deadline to submit signatures but had declined to allow electronic signature gathering. Democratic Gov. Steve Sisolak refused to heed reformers’ demands to allow electronic signatures via executive action.
As we’ve previously explained, this proposed constitutional amendment would have established a bipartisan redistricting commission appointed by legislative leaders, with commissioners drawing maps in compliance with several nonpartisan criteria. However, the amendment wouldn’t have taken effect in time for the next regularly scheduled round of redistricting after 2020, since amendments have to pass in two consecutive elections to become law. As a result, Democrats elected this year will now have the opportunity to gerrymander Nevada’s districts for at least the 2022 and 2024 elections, if not beyond.
Supporters of this failed effort vowed to try again starting in 2021, meaning a new commission could eventually draw new lines for the 2026 elections. However, reformers now have the opportunity to fix some flaws in their initial proposal, including making the commission truly independent of the legislature by altering a provision that would allow lawmakers to select members, and by ensuring an independent source of funding for the panel.
● Ohio: Civil rights advocates have filed a federal lawsuit challenging Ohio’s process for rejecting absentee mail ballots and applications over voter signatures that supposedly do not match the ones on file. The plaintiffs want to require officials to notify such voters of problems that could cause their ballot or application to be rejected and to give them a chance to fix it in a timely manner.
● Oregon: Democratic state Attorney General Ellen Rosenblum has asked the Supreme Court to block a lower court ruling that ordered state officials to lower the number of signatures required and extend the deadline to submit them for a ballot initiative that would create an independent redistricting commission. Federal courts in other states have generally ruled against relaxing the requirements for measures to get on the ballot, and there’s a strong risk that the Supreme Court will block the ruling (see our Idaho item just above).
● Pennsylvania: Democratic Secretary of State Kathy Boockvar has announced that Pennsylvania will prepay the cost of postage to return mail ballots this fall, a move that comes in response to an ongoing lawsuit by national Democrats that is currently pending before the state Supreme Court. While the decision is a victory for plaintiffs, election expert Michael McDonald warns that some ballots may be rejected because some post offices aren’t postmarking prepaid mail despite an official policy to do so for mail ballots.
The plaintiffs in that case are also seeking to count ballots that are postmarked by Election Day and received within a few days afterward; ensure ballots aren’t rejected for non-matching signatures without voters having a chance to fix any problems; and allow campaigns or community groups to collect and submit completed mail ballots on behalf of voters.
● Rhode Island: A federal district court has approved a consent decree under which Democratic state officials have agreed to waive a requirement that absentee voters have their mail ballots signed by two witnesses or a notary. The court rejected GOP officials’ attempt to intervene and block the agreement, although Republicans filed an appeal with the 1st Circuit Court of Appeals.
Separately, Democratic Gov. Gina Raimondo has signed a law that allows voters to cast so-called “emergency ballots” in-person at their local town hall instead of using the more cumbersome process currently available for such ballots within the last 20 days before an election. Rhode Island lacks traditional in-person early voting, so this measure makes it easier for voters to vote in-person ahead of Election Day.
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