As the nation has been roiled by the COVID-19 pandemic, Americans are grappling with how to prepare for and move forward with the 2020 elections and safeguard voting rights, while also ensuring public safety. Our constitutional history teaches us that we do not have to choose between our democracy and public health.
Our Constitution is the bedrock of our democracy. It broadly guarantees the right to vote, empowers Congress to set the date for electing a new president and our federal representatives, and gives our nation’s elected representatives—both in Congress and in the states—the authority to protect voting rights. It provides for the orderly transfer of power from one government to the next. For centuries, its framework has allowed us to protect our democracy even in the midst of deadly crises.
For more than 200 years, we have held federal elections in the midst of wars and bouts with serious diseases. Whatever the crisis, we have found ways to protect democracy, while maintaining our public safety and security. Rather than postpone or delay crucial elections in which the people sought to select their national leaders, our nation has been committed to ensuring free and fair elections even under periods of great national strain.
On Aug. 24, 1814, as voters were getting ready to elect members of Congress, Washington was burning. During the War of 1812, British forces stormed the city, burned the White House, the Capitol, and other important government buildings. President James Madison was forced to flee the city. But as the fighting continued, elections went forward. Through August, and into the fall, individuals cast their ballots for their federal representatives.
The attack on Washington proved short-lived, and a heavy storm helped put out the fires that ravaged the city. Half a century later, in the midst of the Civil War, the nation faced an even greater threat: a bloody civil war that claimed hundreds of thousands of lives.
After three years of fighting, and even as full-scale warfare continued, the American people had to elect a president to serve for the next four years. As professor Francis Lieber, famous for his Civil War code of war, commented, “[i]f we come triumphantly out of this war, with a presidential election in the midst of it, I shall call it the greatest miracle in all the historic course of events.” That is what happened. In November 1864, as the battles raged, voters went to the polls, choosing to elect President Abraham Lincoln to a second term. This allowed him to complete the task of winning the war and eradicating chattel slavery. Those who predicted that Lincoln would cancel elections to keep power were proved wrong.
As Lincoln argued, our Constitution’s promise of democracy was at stake. In the Gettysburg Address Lincoln insisted that the war had to be fought so “that government of the people, by the people, for the people, shall not perish from the earth.” Thus, “the election was a necessity,” even though “the present rebellion brought our republic to a severe test; and a presidential election occurring in regular course during the rebellion added not a little to strain.” To help make democratic participation a reality, Northern states allowed soldiers to cast a vote away from home, ensuring that soldiers could still exercise their fundamental right to vote.
Lincoln’s words remind us that we cannot forsake our fundamental democratic principles in times of strain: “We cannot have free government without elections; and if the rebellion could force us to forego or postpone a national election, it might fairly claim to have already conquered and ruined us.” The election proved that “a people’s government can sustain a national election, in the midst of a great civil war.” Until that point, Lincoln stressed, “it has not been known to the world that this was a possibility.”
The precedent Lincoln set has loomed large in the years since. In 1944, President Franklin Delano Roosevelt quashed rumors that the upcoming presidential election might be postponed because of World War II. “All these people around town haven’t read the Constitution. I have,” he said. FDR recognized our constitutional commitment to ensuring free and fair elections, even in the midst of worldwide warfare. In 2004, even with memories of the horrors of the attack of 9/11 still fresh, the Bush administration rejected the idea that we should postpone our national elections in the event of a terrorist attack. President George W. Bush’s national security advisor, Condoleeza Rice, invoked Lincoln’s example. “We’ve had elections in this country when we were at war, even when we were in civil war,” she said. “And we should have the elections on time.”
We have held federal elections before even in the face of pandemics. In 1918, a midterm election year, Americans went to the polls to exercise their fundamental right to vote, even as the Spanish flu resulted in the death of millions worldwide. Governments devised ways of protecting the public, while maintaining our fundamental constitutional commitment to democratic self-rule. In some places, voters had to disperse and wait at the polls single file; in others, voters and poll workers had to wear masks. Campaigning and election year rallies were undoubtedly affected, but, as one study concluded, “in most places the election was held with relatively few complications.” The 1918 election, all but forgotten until recent events, shows how we have kept our commitment to our fundamental democratic principles even when battling life-threatening crises.
Ensuring public health and safety in the wake of the outbreak of COVID-19 present new and difficult challenges—without parallel in our lifetime—but, throughout our history, we have refused to give up on our fundamental constitutional commitment to voting rights and democracy when faced with crisis and hardship. Lincoln’s words still ring true: holding free and fair elections open to all is a “necessity” because we cannot have “free government without elections.”
It won’t be easy, but we have to act now to ensure that, come November, all citizens can exercise their constitutional right to vote, even as we take precautions to limit the spread of the COVID-19 virus. That means all citizens should have a right to vote by mail. Our election systems will have to work hard over the next eight months to be ready for an election in which millions of voters cast their votes by mail, not in person. But thanks to a slew of reforms—no-excuse absentee voting, early voting, and others—we have a menu of options to increase voting opportunities that were not available during the Spanish flu pandemic.
Mail-in voting is already a reality in many states across the country. Prominent election law scholars, activists, and litigators, including Richard Hasen, Dale Ho, and Marc Elias, have demonstrated that we need reforms that nationalize voting by mail and permit any registered voter to cast and have counted an absentee ballot without having to provide an excuse. We also need widespread public education to let all citizens know they have the right to vote by mail and that their vote will be counted just as if they voted at the polls on Election Day. At the same time, those who wish to vote at the polls must be able to do so safely and effectively, which, at a minimum, may require that polling places be properly sanitized and be configured to comport with strict social distancing protocols. Congress, like the states, has clear constitutional authority over the mechanics of federal elections and has broad powers to protect voting rights.
Our Constitution’s bedrock promise of democracy has been tested by war, disease, and other crises throughout history. Whatever the crisis, our nation has maintained its fundamental commitment to protecting the right to vote. We have done it before, and we must do it again.