April 23, 2020
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COVID-19 began to spread in the U.S. as many states prepared to hold primary elections. Some states, fearing the spread of disease at crowded polling places, made emergency changes regarding how their citizens would exercise the right to vote, alarming those who feared democracy to be in danger. Other states proceeded according to plan, potentially putting voters’ lives at risk. How can we safeguard both public health and the health of our democracy during a global pandemic?
In the United States, state law determines voting methods. Ohio, plus 15 other states and Puerto Rico, all pushed back their primaries or switched to mail-in voting. From a health perspective this was wise, but did it undermine the rule of law?
In Ohio, a judge rejected the governor’s request to postpone the election, arguing that a late change in the election process would set a “terrible precedent.” In response, the governor used administrative powers to close the polls as a matter of public health. Later, the legislature enacted a law to authorize extended mail-in voting. If changing the rules of the game at the last moment sets a worrisome precedent, obtaining legislative permission for the change, albeit post facto, restored the rule of law.
On balance, I think Ohio’s leaders served the interests of democracy. Although any decision to change the date and means of an election will affect which voters actually cast a vote and who they favor at the moment of casting their vote, the change in rules did not appear to bias the results to favor any candidate or party. The Ohio decision balanced public health and voters’ access to the ballot box in a way that seems to have maximized both.
In contrast, Wisconsin voters had to choose either health or civic duty. Their governor’s effort to administratively postpone the election was challenged by the other party. The case arrived in the U.S. Supreme Court, where a narrow majority refused to give voters an additional week to cast absentee ballots — which could have allowed more Wisconsin residents to vote by mail rather than stand in line and risk contagion. The Court stood against last-minute changes to the electoral rules of the game, noting that “this Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Democracy only works if everyone knows the rules, follows the rules and believes the rules are fair. Last-minute changes undermine those conditions, so the Court’s precedent makes excellent sense — except that there is nothing ordinary about life in a pandemic. Ohio’s leaders recognized this, while Wisconsin stuck with the formal rules of the game, even though the conditions under which voters would want to go to their local polling place had changed dramatically.
Particularly in extraordinary times, we need intransigence in our commitment to democratic principles. In a polarized era, we need especially to make a priority of the principle that “my side will accept the results if we lose.” The COVID-19 pandemic, however, makes clear that we will need to adapt our methods of political contestation and participation. The danger lies in a temptation to be flexible in our commitments to democratic principles, or narrowly inflexible in our insistence on keeping old rules.
Assistant Professor of Political Science Nancy Powers ’83 is an expert in comparative politics who focuses on immigration, global poverty and Latin American politics. She is also the assistant director of Kenyon’s Center for the Study of American Democracy.