On April 7, Wisconsin held an in-person election over the protests of public health experts and the state’s own governor. The consequences were grimly predictable: At least seven voters have gotten infected with the coronavirus because the state held in-person elections. A city health commissioner believes it’s just “the tip of the iceberg.” Wisconsin was a preview for November, when the entire country will likely hold a presidential election during the COVID-19 pandemic. To avoid forcing voters to choose between protecting their health and exercising their constitutional rights, some states are helping every voter obtain and return a free mail-in ballot in November. In other states, however, Republican lawmakers are opposed to universal vote by mail. The U.S. Supreme Court has already demonstrated its hostility to federal lawsuits seeking to facilitate mail-in voting during the coronavirus outbreak. So advocates are turning to a state-by-state approach, relying on an underused tool to salvage the election: state constitutions.
Under Chief Justice John Roberts, SCOTUS has eroded Americans’ ability to participate in elections—even though voting is the most fundamental right protected by the federal Constitution. The night before Wisconsin’s election, the five conservative justices nullified absentee ballots that arrived late due to the pandemic. Their decision was an ominous sign that they will let state officials exploit the coronavirus to suppress voting rights in November.
Access to the ballot box was already under attack before the pandemic, and the Supreme Court has steadily closed off legal avenues to protect elections and challenge voter suppression. But there is one move left for Americans who don’t want to risk their lives to vote. The federal Constitution lacks any explicit guarantee of a fair election. But most state constitutions do. Twenty-eight state constitutions have provisions requiring that elections be “free and equal,” “free and fair,” or “pure,” meaning fair and evenhanded. Forty-nine state constitutions, meanwhile, expressly protect the right to vote; some go further, establishing an “equal right” to vote for all citizens. The outlier, Arizona’s constitution, requires elections to be “free and equal,” which the state judiciary has interpreted to protect the franchise. In short, every single state constitution safeguards voting rights. State Supreme Courts are free to interpret these provisions much more broadly than SCOTUS interprets anything in the federal Constitution.
What does it mean to cast an “equal vote,” or to participate in a “free,” “fair,” or “pure” election? In 2018, the Pennsylvania Supreme Court ruled that the state constitution’s free and equal elections clause prohibited partisan gerrymandering. Last year, a North Carolina court ruled that the state constitution’s free elections clause also prohibits partisan gerrymandering, striking down egregiously biased maps. The Supreme Courts of Arkansas and Missouri have interpreted their state constitutions’ election protections to bar draconian voter ID laws. And, as the Pennsylvania Supreme Court observed, courts in at least three of these states—Delaware, Illinois, and Kentucky—have broadly interpreted their free and equal elections clause to provide “an equal right to each citizen, on par with every other citizen, to elect their representatives.”
Now advocates are hoping to persuade state Supreme Courts around the country that, at least during a pandemic, universal vote by mail is necessary to preserve free elections and equal votes. Leading the charge is Democracy Docket, an organization founded by Democratic attorney Marc Elias after SCOTUS gutted the Voting Rights Act in 2013. Lawyers affiliated with Democracy Docket have filed a spate of litigation asking state courts to ensure that every citizen can vote absentee, safely and at no cost, in November. They’ve invoked state constitutional provisions to challenge voting restrictions in Montana, Nevada, North Carolina, South Carolina, and Pennsylvania. Each of these lawsuits cites the respective state constitution’s protections for the right to vote and to participate in a “free” election on equal terms. An election that may expose voters to a deadly virus, they argue, is not free in any real sense: Citizens must imperil their health to exercise the franchise, or else forfeit their constitutional liberties. And there are few heavier burdens on the right to vote than the very real possibility that doing so may kill you.
The North Carolina lawsuit provides a good illustration of the arbitrary rules that could disenfranchise vulnerable voters. In the 2018 midterms, Republican political operative McCrae Dowless collected unfinished ballots from black voters then filled them out in favor of the GOP candidate. Even though Dowless’ actions were illegal under existing law, the state Legislature responded by passing sweeping new restrictions on absentee ballot collections. Oddly, lawmakers cracked down on the absentee ballot application process, barring community organizers and advocacy groups from helping voters request a ballot.
That constraint would not have halted Dowless’ scheme. It also outlaws the long-standing tradition of volunteers helping low-income residents with limited access to mail and internet obtain their ballots. And so, ironically, the new law could disenfranchise the same communities that Dowless targeted. Voting rights advocates have sued to block the measure in state court, alleging violations of the state constitution.
Not all of these suits will be successful. While the state supreme courts of Montana, North Carolina, and Pennsylvania are relatively liberal, most states’ high courts are more centrist (Nevada) or conservative (South Carolina). As the Wisconsin Supreme Court’s decision reinstating the April 7 election indicates, state judiciaries can be disastrously antagonistic toward suffrage. Moreover, voting rights advocates will face disproportionately right-leaning judiciaries, since red states tend to have more restrictive voting laws. There are 16 states that require an excuse to vote absentee, and in those controlled by Democrats, lawmakers are working to change the law or interpret it broadly so everyone can mail in their ballots. By contrast, red state lawmakers have rejected calls to amend the law and declared that fear of coronavirus infection is not a legal excuse to vote absentee. (A Texas judge has ruled otherwise, but the state is appealing.)
This state-by-state battle is inefficient and incapable of providing uniform voting rights to all Americans. In an ideal world, the U.S. Supreme Court would enforce the fundamental right to suffrage in every state. And in that world, access to the franchise would not be a partisan issue. But the GOP’s current electoral strategy rests on the relentless suppression of votes for its opponents. If state Supreme Courts do not step in to fill the void left by SCOTUS, we will see the Wisconsin catastrophe play out across the country in November.