Why We Need Postal Democracy

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David Cole, New York Review of Books: Nothing symbolizes democracy like long lines at the polls on election day. They represent a collective act of faith, as chances are virtually nil that any one of the votes we cast over our lifetime will determine the outcome of an election. They remind us that many of our fellow citizens have had to fight to stand in such lines. And because long lines are also often a sign that election officials have failed to provide sufficient voting opportunities, they illustrate the tenacity of citizens who insist on casting their ballots even when the government seems more interested in obstructing than in facilitating the franchise.

Not since the civil rights era, when African-Americans in the South braved death threats to exercise their right to vote, has a voting line embodied this commitment more profoundly than on April 7 in Milwaukee. People lined up around the block, trying to maintain six-foot social-distancing intervals, to vote in what was a relatively unimportant election. At issue were only the all-but-concluded Democratic presidential primary, a single state supreme court seat, and a small number of lower state and local offices. At a time when their governor and mayor—both Democrats—had instructed them to shelter in place, these Milwaukee citizens had come out to stand in public for hours in order to exercise their constitutional right. The city, which ordinarily operates 180 polling places, opened only five, as poll workers balked at showing up. At least forty voters and poll workers may have contracted the coronavirus as a result.

It was government officials who compelled them to risk their health, and possibly their lives, to vote: specifically, the Wisconsin state legislature, the justices of the Wisconsin Supreme Court, and the justices of the United States Supreme Court—or more accurately, the Republican members of those institutions. The Republican-gerrymandered state legislature blocked Governor Tony Evers’s efforts to delay the election until June or to conduct an all-mail election. When the governor invoked his emergency powers to unilaterally suspend in-person voting until June, the Wisconsin Supreme Court, on a party-line 4–2 vote, nullified his order, proclaiming that he lacked the authority to take such action. For their part, all of the court’s justices voted absentee; they weren’t risking a trip to the polls.

The night before the election, the US Supreme Court stepped in to stay a federal district court ruling that had merely extended by six days the deadline for the state to receive absentee ballots, including those postmarked after election day. The district court imposed this modest extension when it became clear that thousands of voters would not receive their absentee ballots until after the election, because an unprecedented surge in requests for such ballots overwhelmed the Wisconsin electoral system. The US Supreme Court’s Republican-appointed majority declared that the district court’s order violated the principle that courts “ordinarily” should not alter the rules for elections shortly before election day. The majority also noted, repeatedly, that the plaintiffs—who included Wisconsin voters, voting rights organizations, and the Democratic National Committee—had not specifically requested this particular relief.

But as Linda Greenhouse commented in The New York Times, there was nothing “ordinary” about this election, which came in what President Trump had predicted would be the worst week of the pandemic. And as Justice Ruth Bader Ginsburg pointed out in her dissent, joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, the plaintiffs had in fact requested that relief at the preliminary injunction hearing—a correction the majority did not even acknowledge, much less dispute. As a result, thousands of Wisconsin residents had to put their health at risk to vote—a risk the US Supreme Court justices, who voted on the case remotely, were unwilling to take themselves. (If you think there’s a pattern here, there is.)

Why was there so much drama over such a minor election? And what does it portend for the momentous election coming in November? The answer is disturbing: in the coronavirus pandemic, Republicans may have discovered the ultimate voter suppression tactic. For years they have sought to erect obstacles to voting, imposing strict voter identification requirements, limiting registration opportunities, purging voter rolls, and opposing early voting—all ostensibly in the name of fighting in-person “voter fraud,” even though there is virtually no evidence that anyone unlawfully impersonates a voter at the polls. Many Republicans believe that low voter turnout favors them, because older and wealthier citizens, disproportionately Republican, vote more regularly than younger and poorer citizens, who tend to favor Democrats. But the suppression tactics the party has previously pursued pale in comparison to fear of contracting a deadly disease, which is certain to deter many people from going to the polls. And that’s apparently how some Republicans like it.

The obvious answer to the problem of how to preserve democracy in a pandemic is to expand voting by mail. Failing to make absentee voting in these circumstances available to all is an impermissible burden on the constitutional right to vote—just as providing only a single polling place for a large district would be. The Supreme Court has declared the right to vote “of the most fundamental significance under our constitutional structure.”1 States must provide adequate opportunities to vote, and when they do not, even if the immediate cause is beyond their control, they violate the Constitution. For example, when a hurricane hit Florida during the last week of voter registration in 2016, the state was constitutionally required to extend the registration deadline.2 The usual deadline was permissible under ordinary circumstances but became unduly onerous in the emergency conditions created by the hurricane. The same rationale holds with respect to rules that restrict voting by mail. They might be reasonable in ordinary times, but not when the alternative is to risk contagion in order to exercise one’s right.

At the moment, five states—Washington, Oregon, Utah, Colorado, and Hawaii—conduct their elections almost entirely by mail. Another twenty-eight states and the District of Columbia permit “no-excuse” absentee voting, while the remaining seventeen states and Puerto Rico permit absentee voting only for specific causes, such as being out of state on election day. During the pandemic, absentee voting should be available to all registered voters, without requiring an “excuse.” The coronavirus is, after all, a universal excuse. States should send absentee ballot applications to all registered voters, with prepaid return envelopes, to ensure the maximum opportunity to vote. On April 24, New York governor Andrew Cuomo announced that New York would do just that.

Yet President Trump has opposed such public health–promoting suggestions. He claims that if we were to adopt voting by mail, “you’d never have another Republican elected in this country again.” The Republican Speaker of the Georgia House of Representatives agreed, predicting that voting by mail would be “extremely devastating to Republicans.” That would be the case only if, when more voters’ preferences are counted, there are more votes for Democrats than for Republicans. But that’s precisely how democracy is supposed to work: it’s called “majority rule.” If the only way a party can prevail is by suppressing votes, it shouldn’t win.

In fact, there’s little evidence to back Trump’s assertion that voting by mail favors Democrats. Studies of voting by mail in practice reveal no systemic advantage for either party.3 In the disputed Wisconsin election, The New York Times found that mailed ballots gave a significant advantage to the unexpectedly victorious Democratic candidate for the Wisconsin Supreme Court, Jill Karofsky. But some experts believe that may have been because the Democratic Party did a better job in this election of urging its voters to cast ballots by mail.4 Voting by mail may be especially attractive to rural and older voters who have difficulty getting to polling stations—both demographics that tend to skew Republican.5 Trump himself votes by mail, and Republicans have long aggressively urged their voters to do so where it is allowed. In Pennsylvania, for example, the Republican National Committee is calling it “easy, convenient, and secure.”6

It’s not clear at this point how much Trump’s opposition to voting by mail will affect the November election. The most likely swing states—Florida, Pennsylvania, North Carolina, Michigan, Wisconsin, and Arizona—all permit no-excuse absentee voting already. And many “red” states are already taking steps to make voting by mail easier. Alabama, Indiana, and West Virginia have announced that all voters will be permitted to vote by mail in their upcoming primary elections. West Virginia and Georgia are mailing absentee ballot applications to registered voters. In New Hampshire, which ordinarily limits absentee ballots to those with specific excuses, the Republican governor issued an order permitting anyone to vote by mail not just in the primary but also in November, becoming the first “no-excuse” state to relax its excuse requirements for the general election.  Read more.

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