- The Washington Times - Wednesday, March 25, 2020

Election officials across the country are scrambling to craft contingency plans for elections amid the coronavirus outbreak, seeking to balance public health and citizens’ constitutional rights.

Some are pushing for increased vote-by-mail and absentee opportunities, though the unprecedented situation means most are flying somewhat blind ahead of upcoming primaries and the November general election.

“It’s tough right now,” said Derek Muller, a professor at Pepperdine University’s Caruso School of Law. “This is not the time to create a new election regime in seven months. This is a time to figure out how we can make do in November, and then maybe you can think about what 2024 might look like.”

Without finding a proper balance ahead of November, the country faces the prospect of effectively disenfranchising people who fear they’ll contract the virus if they trek to the polls or putting the public in danger, particularly the elderly, if there aren’t enough alternatives and proper safeguards.

There could even be questions surrounding the legitimacy of the results if turnout is substantially depressed and voters feel they weren’t offered enough safe options other than voting on Election Day.

This week, Georgia Secretary of State Brad Raffensperger announced that he was mailing absentee ballot request forms to every one of the estimated 6.9 million voters in the state.

His office said people who want to vote in-person will still be able to do so, but that poll workers will get additional resources to clean equipment properly and that he is trying to help counties hire younger poll workers to avoid the need for elderly people to risk their health.

“Georgia has faced challenges before and overcome them, and we can do so again through the grit and ingenuity that has made America a shining example for democracies around the world,” he said.

Georgia postponed its March 24 presidential primary to May 19 in light of the COVID-19 outbreak.

Nevada Secretary of State Barbara Cegavske announced similar plans this week to conduct an all-mail election for the June 9 primary in the state.

Her office said all active registered voters in the state will be mailed an absentee ballot, but that there will still be at least one in-person polling location in every county.

Iowa Secretary of State Paul Pate issued a directive extending the absentee voting period to 40 days for people voting by mail in his state’s June primary.

“We still plan on having polls open on June 2 for voters who prefer to cast ballots in-person, but this effort will help reduce the risk of infecting others,” Mr. Pate said.

Ohio Secretary of State Frank LaRose is pushing a “postage-paid vote-by-mail” election for people who haven’t yet voted. Under that plan, the state would mail an absentee ballot request to every registered voter in the state who hasn’t yet voted, while keeping limited in-person locations open for the planned June 2 election.

Ohio Gov. Mike DeWine had blown past a judge’s ruling to invoke a public health emergency and delay in-person voting in his state’s March 17 presidential primary due to public health concerns over COVID-19.

The action comes after Arizona, Illinois, and Florida pressed forward with their March 17 presidential primary contests despite the escalating outbreak.

Voters were greeted with polling locations that were closed or had delayed openings as workers were wary of venturing out in public after President Trump announced federal guidance a day earlier saying people should avoid crowds of more than 10 people.

A day after the Arizona primary, Secretary of State Katie Hobbs called on the state legislature to grant local boards the authority to conduct an “all-mail” election for the 2020 primary and general elections in August and November respectively.

“Under these circumstances and the current uncertainty we face, allowing for all-mail elections would enable counties to conduct fair and secure elections and ensure that voters can safely vote despite an ongoing public health emergency,” Ms. Hobbs said in a letter to state legislative leaders.

Rick Hasen, a law professor at the University of California, Irvine, said a good idea in the short term would be to expand no-excuse absentee voting, saying a complete shift to all-mail elections isn’t necessarily a perfect solution.

“They’re generally run well,” he said. “I would not want to try something new, so radical, in a high-stakes election like a presidential election for the first time.”

Five states had already switched to holding elections almost entirely by mail: Colorado, Hawaii, Oregon, Utah, and Washington.

Mr. Muller said vote-by-mail isn’t best for everyone. For example, he pointed out the frequent difficulties for those living on American Indian reservations — a concern Ms. Hobbs acknowledged in her letter — or some voters with disabilities.

“You still have to have some kind of in-person opportunities,” he said. “Somebody spoils the ballot or doesn’t [get] the ballot, they’re going to have to physically show up, too. It can reduce some of the strain, I think, by having no-excuse absentee voting or opportunities where you don’t have lots of people standing in lines.”

Senate Democrats on Wednesday said they secured $400 million in the emerging $2 trillion economic rescue package that could go toward helping states expand vote-by-mail and early voting efforts ahead of November.

Democratic Sens. Amy Klobuchar of Minnesota and Ron Wyden of Oregon are pushing legislation that would prod states to expand early voting and vote-by-mail.

“While this funding is a step in the right direction, we must enact election reforms across the country as well as secure more resources to guarantee safe and secure elections,” Ms. Klobuchar and Mr. Wyden said in a joint statement.

Sen. Sherrod Brown, an Ohio Democrat and a co-sponsor of the bill, expressed concern earlier this month that other governors - or even President Trump - could look to the precedent Mr. DeWine set and potentially invoke a health emergency to try to delay November’s election.

Mr. Trump doesn’t have the power to cancel the election, said Samuel Issacharoff, a constitutional law professor at the NYU School of Law.

“The pattern that elections can be postponed or can be suspended, especially in a presidential year, is a very dangerous one,” Mr. Issacharoff said. “If Lincoln could hold elections during the Civil War, it’s really hard to see why President Trump can’t hold elections during a public health emergency.”

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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