Until recently, litigation about voting during the COVID-19 crisis followed a predictable pattern. Voters would complain about states’ restrictive regulations, conservatives would rush to the laws’ defense, and courts would referee the disputes. Powerhouse right-wing lawyers, however, have now opened a troubling new front in the voting wars. They now claim that it’s unconstitutional for states to make it easier to vote while the pandemic rages. Relaxations of voting rules supposedly give rise to fraudulent votes that impermissibly dilute the ballots cast by law-abiding citizens. This novel argument should—but probably won’t—be laughed out of court. As it spreads across the country, it threatens to put states in an impossible position: exposed to liability not just if they ignore, but also if they try to alleviate, the pandemic’s effects on the electoral process.
Before this new breed of cases began appearing, most suits about voting during the pandemic had the same setup. Some existing electoral regulation—an eligibility limit for voting absentee, say, or a requirement that mail-in ballots be notarized—would prevent certain people from voting. So they would go to court alleging an excessive burden on their constitutionally protected right to vote. In response, some state official would argue that the policy served an important interest, most often the prevention of fraud. In April, the Supreme Court decided one of the many such cases, involving the rules for absentee voting in Wisconsin’s primary election.
But the new lawsuits flip this script. They target states that have facilitated voting during the pandemic by loosening electoral regulations. So the plaintiffs don’t complain that it’s too hard for them to vote. Instead, their grievance is that, while they can vote without hindrance, their ballots may be diluted by fraudulent votes cast by other people. The prevention of fraud thus becomes a sword in these cases, not a shield—a reason to strike down a state policy, not to uphold it.
Jim Bopp, the lawyer behind Citizens United and other rollbacks of campaign finance laws, launched one of these new suits in April. Why? Because Nevada’s secretary of state chose to send an absentee ballot to each active registered voter. This made it possible for each recipient to participate in the state’s June primary without risking exposure to the coronavirus by voting in person. In May, the Republican National Committee, represented by the elite D.C. law firm Consovoy McCarthy PLLC, filed a similar complaint in California. Again, the impetus was the governor’s decision to send mail-in ballots for the general election to all registered voters. And last week, the Trump campaign itself joined the action, challenging Pennsylvania’s implementation of its new mail-in voting law—a statute passed in 2019 by the state’s Republican-controlled Legislature.
It’s clear, then, that there’s a concerted conservative strategy to sue states that try to ease voting during the pandemic. It’s equally clear that the legal claim advanced in these suits—the “dilution” of legitimately cast votes by fraudulent ballots—doesn’t actually exist. Current constitutional law acknowledges two (or maybe three) kinds of vote dilution. One is malapportionment: the drawing of electoral districts with highly unequal populations. Another is racial vote dilution: the intentional manipulation of electoral rules to disadvantage minority voters. (Until recently, partisan gerrymandering belonged in this recognized group, too. But in a disastrous decision last year, the Supreme Court held that, while potentially unconstitutional, gerrymandering can’t be policed by the federal courts.)
Glaringly absent from the list is the new theory of vote dilution through fraud. And there are good reasons for this omission. No one can know in advance how much—if any—fraud will take place because of an electoral regulation that’s allegedly too lax. So no one can say if the degree of dilution will be severe or mild—or nonexistent. Additionally, American constitutional law generally prohibits only certain types of governmental action. But, at bottom, the new lawsuits object to governmental inaction—specifically, states’ failures to enact additional safeguards against fraud. In our system, this lack of affirmative legislation can’t support a legal claim.
Even if vote dilution through fraud were a viable theory, moreover, the facts wouldn’t substantiate it. The California, Nevada, and Pennsylvania suits all assert that greater availability of mail-in voting will lead to significant fraud. To test this hypothesis, we can look to the states that already send mail-in ballots to all registered voters. In Colorado, Oregon, and Washington, according to a recent study, there were only 372 possible cases of fraud out of 14.6 million mail-in votes in the 2016 and 2018 general elections. This infinitesimal rate of potential fraud—just 0.0025 percent—means that any dilution of lawfully cast ballots is so slight as to be meaningless. It means that even if the law recognized the new claim, it couldn’t get off the ground as an evidentiary matter.
Furthermore, the minuscule amount of fraud that might be prevented by barring states from expanding mail-in voting can’t be considered in isolation. Instead, it has to be weighed against the much larger volume of lawful votes that won’t be cast if people are limited to voting in person. Even in ordinary times, mail-in voting boosts turnout compared with in-person voting. This advantage is even greater in the current era of the pandemic, when in-person voters face unusually long lines and a nontrivial risk of contracting the coronavirus. In legal terms, the higher level of participation made possible by expanded mail-in voting is a compelling state interest for the policy. It’s an interest that more than offsets the smattering of lawful votes that might be diluted by fraudulent mail-in ballots.
Lastly, the hypocrisy of the advocates bringing the new suits is truly galling. The very same lawyers are heavily involved in conventional voting cases, where plaintiffs attack existing electoral regulations as overly burdensome during the pandemic. But in these cases, the lawyers sing a very different tune, extolling the virtues of action by the elected branches and warning the courts not to interfere. “Questions about how to accommodate voters’ interests while also striving to ensure their safety are best left to election officials,” Consovoy McCarthy partner Patrick Strawbridge told the 8th Circuit in an ongoing Arkansas dispute. Courts shouldn’t “utilize the national emergency created by the Covid-19 virus as a guise to usurp the constitutionally delegated authority of the legislature,” Jim Bopp added in a New Mexico case. Apparently, these views apply when states maintain strict voting rules but not when they relax them. When states try to facilitate voting during the pandemic, the advocates demand the judicial intervention they otherwise denounce.
To date, the new theory of vote dilution through fraud hasn’t made much headway in the courts. A Nevada district court twice rejected the claim, and the California and Pennsylvania courts haven’t yet ruled on it. But given the conservative tilt of the federal judiciary—and the conservative legal firepower behind the theory—it may only be a matter of time before it gains a foothold. If the claim does start winning acceptance, then it will become even harder for states to run their elections without running afoul of the law. States will remain subject to liability if their electoral regulations are too onerous. But they will also be vulnerable to legal challenge if their rules are too conducive to voting, too likely to yield a high turnout. And so the voting wars will become still more intense, ensnaring even states trying to stay out of the fight.
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