Primary Election Postponements: Where Things Stand and What to Expect

The recent spread of the novel coronavirus (COVID-19) has taught us to all review our preparedness, which includes evaluating and adjusting the nation’s and individual state’s voting systems. In the wake of the spreading COVID-19 virus, various states have had to address concerns with their elections, including Georgia, Kentucky, Louisiana, Maryland and Ohio. Meanwhile, others have held their elections; but with major modifications as in Arizona, Florida and Illinois. The questions to consider are what does voter and election preparedness look like and how will it be accomplished in the remainder of 2020?  These are questions especially pertinent to state and municipal entities as they prepare to conduct their elections in November 2020, or even earlier.

COVID-19 Voting

The last nationwide election in 2018 saw one of the highest voter turnouts in the last 40 years at 53.4%, according to the U.S. Census Bureau.¹ In the 2018 midterm elections, more than 116,000,000 ballots were cast nationwide.² When analyzing the last three Presidential elections, we see that an average number of voters casting ballots in each election has increased by an average of nearly 1.40% or nearly 1,800,000 voters.³ Overall, this is encouraging news as Americans are more involved in the electoral process. But, as is shown in large-scale disaster preparedness, unpredictable issues and catastrophic incidents can and will impact the electorate. COVID-19 is another significant impact. How can we effectively campaign and, most importantly, fulfill our civic duty to vote in the age of social distancing?

Social Distancing = New Voting Methods

The Centers for Disease Control (“CDC”) and the President have stressed that Americans must engage in social distancing. This has meant not assembling in large groups, closing public gathering places, shuttering shopping malls, school system closures and even buildings holding religious services have ceased operations, especially for the elderly. With the prohibition of large gatherings and the shuttering of common voting and polling places, like schools and houses of worship, what does this mean for the anticipated nearly 1,800,000 new voters for 2020 and the anticipated more than 128,000,000 nationwide voters in November 2020?

This is where we will benefit greatly from working through these challenges early and with deliberate speed. One of the best ways to prepare is to look at how to adjust people’s already natural tendencies. The most positive indicator in this scenario is that in 2018, nearly 40% of voters cast ballots using alternative methods.⁴ According to the U.S. Census Bureau, these alternative methods included early voting and mail-in ballots.⁵ With the arrival of COVID-19, the time has come for the nation and the states to permit alternate methods that allow Americans to participate in the electoral process.

Hope is Not a Plan

According to the old adage, State and Municipal Governments must prepare for the worst and hope for the best. With elections and the electoral process, we certainly can plan for how to allow civic participation. With a greater number of young and technologically savvy voters, the time is now to implement technological options and different solutions. Although no idea is without challenges, we must begin discussing and raising these issues. Some possible ideas for the federal, state and municipal governments to consider are:

Technology

• Adopting larger scale mail-based operations, similar to Colorado, Hawaii, Oregon, Washington and Utah; Maryland is now holding a federal “special election” entirely by mail – despite not conducting such an election before in this manner
• Use of tablets and two-step verifications for voting
• Use of “pocket printing” and mobile voting systems (i.e., mobile printing, similar to rental car returns or parking tickets)
• ATM style voting – use of widely deployed kiosks and smaller voting monitoring teams

National changes

• Adopting a national voting period beyond a single day
• Providing for nationwide “mail-in” balloting
• Creating a national holiday for Election Day to allow for greater dispersal of voters over different times of the day.
• Providing federal grants to fund greater ballot distribution and mandate certain waiting time limits to encourage frequent and greater investment in workers and capital assets to provide a faster throughput of voters
• Using AmeriCorps to staff election facilities to help establish an ongoing and constantly replenishing cadre of election poll workers
• Amending “The Help America Vote Act” to include federal funding to guarantee a paper receipt for all ballots cast allowing voters to have more surety in the electoral process

As State and local governments contend with elections in a pandemic world, we all must prepare for the next phase of global pandemics, natural disasters and catastrophic incidents. We must always be committed to bold and creative ideas to evaluate and constantly evolve our preparation. Election contingencies should be part of any state’s or municipality’s disaster preparedness plan, as the COVID-19 pandemic has shown.  

Nossaman is a leader in election law and campaign finance law matters as well as legal matters relating to disaster preparedness and response. We continuously monitor and identify developments of interest to our clients, which include governmental entities as well as corporations, trade associations and labor unions. If your Secretary of State, Board of Elections, or other election authority needs help navigating these and other complex issues in an uncertain time, please contact Nossaman for assistance. 

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¹ https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html (visited on Mar 19, 2020).

² https://www.vox.com/policy-and-politics/2018/11/19/18103110/2018-midterm-elections-turnout (Nov. 19, 2019)

³ See https://www.cnn.com/election/2016/results (visited Mar. 19, 2020), https://www.cnn.com/election/2012/results/race/president/ (Dec 10, 2012), https://www.cnn.com/ELECTION/2008/results/president/ (Nov. 17, 2008).

⁴ See https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html (Apr. 23, 2019).

⁵ See https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html (Apr. 23, 2019).