It is no secret that COVID-19 has made election administrators’ task in 2020 exponentially more difficult. States like Wisconsin and Georgia, where elections took place after COVID took hold in the United States, have struggled to distribute absentee ballots and keep polling places open. The result is a dilemma that recalls some of the most sordid episodes in our nation’s history: Americans—particularly Black and brown citizens, who have both borne the brunt of the COVID epidemic and face disproportionate and discriminatory barriers to voting—were forced to choose between their personal safety and exercising their right to vote. But as a voting rights lawsuit our organization recently filed on behalf of a coalition of organizations and voters in Wisconsin demonstrates, lawyers and judges can find a good solution to the whole mess in Bogalusa, Louisiana.
1960s-era Bogalusa, to be precise.
Bogalusa may seem like an odd place to look for guidance here. Louisiana, after all, was not known at the time for having free and fair elections. And Bogalusa may have been the very worst place in the state on that front: The city had the highest rate of per capita membership in the Ku Klux Klan in the entire United States, and the local Klan was engaged in a widespread campaign of “terror and intimidation.” Klan members attacked civil rights activists and brandished guns at civil rights marches. They defamed and boycotted white moderates who supported desegregation. And they threatened any governmental officials—from the governor to the mayor—who dared to try to get in their way.
Being the target of violence and intimidation by Southern racists was nothing new for members of local civil rights organizations like the Bogalusa Voters League, and they continued marching to obtain their right to vote and organizing to protect themselves against Klan violence. (You can find more about their story here.) But while the Voters League was undeterred, the same cannot be said of city officials. The officials who were not already openly sympathetic to the Klan quickly succumbed to Klan intimidation and abandoned their responsibility to protect residents’ voting rights by, among other things, looking the other way when the Klan tried to intimidate voters and civil rights protesters.
The predictable result was an outbreak of Klan terrorist violence directed at voting rights marchers and advocates. In response, the Voters League and the federal Department of Justice filed lawsuits against the Klan and the city of Bogalusa for violating, among other things, federal civil rights laws. The lawsuits argued that not only was it illegal for the Klan to intimidate voters but that it was also illegal for the city to fail to take reasonable actions to protect those voters. The federal court agreed. It issued orders banning the Klan from continuing its campaign of terror and, importantly, requiring the city to act. It ordered the city to use all reasonable means to protect voting rights groups from violence and, among other things, to publish and commit to a plan for ensuring that the groups would be able to safely exercise their civil rights in Bogalusa.
Fast forward to 2020, when Americans are subject to a force that threatens their physical well-being if they enter the public sphere in order to vote. That force, COVID-19, will systematically and disproportionately disenfranchise Black and brown communities who have to contend with both the highest mortality rates and an uneven, discriminatory distribution of voting infrastructure and resources. Like the Bogalusa officials, election officials may not be responsible for COVID, but they still have a legal obligation to take precautions to ensure that no voter is too scared to register or vote. This year’s voters should borrow the Bogalusa Voters League’s legal strategy and sue election officials who fail to protect voters from COVID.
We’re arguing in court that a failure to take reasonable precautions to protect voters from COVID violates Section 11(b) of the Voting Rights Act, which makes voter intimidation illegal regardless of whether anyone intended for voters to be intimidated. The federal court in the Bogalusa case—along with other federal courts considering similar cases in Terrell County, Georgia, and Dallas County, Alabama—recognized that federal judges can indeed compel local officials to protect voters from intimidating forces that deter voting. In this case, the court would be ordering election officials to provide communities with in-person and absentee voting options that are safe from a virus rather than from the Klan.
There are plenty of ways the courts could ensure voters are safe. As in the Bogalusa Voters League case, federal courts could order election officials to commit to a plan to ensure safe and easy voting in 2020, particularly in those jurisdictions that have historically disenfranchised the very same minority voters who likely face the highest health risks from electoral participation this year. And if that’s not enough, a court could go further and order elections officials to take specific measures such as, for example, setting up polling places to minimize transmission risks, ensuring that poll workers wear masks, and mandating absentee ballot drop boxes. Moreover, to the extent that state law (and not merely bureaucratic inertia) is responsible for unsafe voting conditions—such as is likely the case with many rules requiring in-person witnesses to absentee ballot signatures, as well as rules requiring an excuse before voting absentee—the court could determine that the need to comply with the Voting Rights Act supersedes state law. If done right, such an order would help to ensure that no voter is forced to choose between voting and personal safety in 2020.
Even before COVID, this election was never going to be easy. Our near-historic levels of polarization, when combined with an aging elections infrastructure all too often affected by partisan maneuvering, were always certain to produce a number of hard-fought election law disputes. But in a country founded on the idea that government must derive its powers from the consent of the governed, we owe it ourselves to ensure that United States citizens are not forced to choose between their safety and their vote.