From the Desk of Trevor Potter

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From the Desk of Trevor Potter


Dear John,

I hope this message finds you safe during these difficult times. During this challenging period, we at Campaign Legal Center are continuing our work to advance democracy through law, and I wanted to share with you what’s been on my mind lately. I plan to write more often in the coming weeks and months, and I invite you to keep an eye out for my letters.

We’ve been thinking a lot at CLC about the coronavirus’s impact on our democracy as well as what needs to happen in order for our elections to proceed smoothly and safely this year.

The coronavirus has already caused disruptions, delays and challenges to ongoing primary elections. Wisconsin’s primary election last Tuesday is the latest case in point. Due to health concerns, and a battle between the governor and legislature over whether to close all polling places, an unprecedented number of Wisconsin voters tried to turn to voting absentee. This put a strain on election clerks who needed to send out ballots, creating a backlog and overwhelming the post office ([link removed]) . Almost ten times as many Wisconsin voters attempted to vote absentee ballots than in the previous election (over one million vs 140,000). News reports indicated tens of thousands of voters did not receive absentee ballots in time to mail them back.

At the last minute, a chaotic legal struggle broke out over the Wisconsin election in both state and federal courts, culminating in the U.S. Supreme Court declining to extend the deadline for absentee voting. The struggle over the Wisconsin primary sent an urgent message ([link removed]) that states must take action now (not six months from now; now!) in order to make sure people can vote in November.

What happened in Wisconsin on Tuesday simply cannot be allowed to happen in November. The date of the November election cannot be changed—it is determined by law and based on constitutionally mandated term start dates for Congress and the president. We do not have an opportunity for a do-over. We have to plan ahead and take action now.

There are some key lessons to consider. For one, states need to allow and expand no-excuse absentee voting. Some have already taken action on this. West Virginia, for example, is sending absentee ballot applications ([link removed]) to all registered voters this month for its June primary. States and the U.S. Postal Service need to prepare for, and have the resources to handle, a deluge of mail-in votes, and states need to send out ballots well before Election Day so voters have time to send them back.

While vote-by-mail should be expanded this year, in-person voting options should remain available for those who need them, and voting should be spread out over a number of days. Many states with a large percentage of absentee voters provide drop-off locations for completed ballots, which lessens the reliance on the postal service. Importantly, whatever arrangements are made, they need to be clearly explained to voters. To keep up with states’ quickly changing policies, The National Conference of State Legislatures's website has published helpful ([link removed]) materials ([link removed]) .

CLC is continuing to monitor the coronavirus crisis and provide recommendations for how to protect our elections this year ([link removed]) . ([link removed]) Additionally, we're among the leaders of a bipartisan, blue-ribbon National Task Force on Election Crises ([link removed]) . I have been working as a member of the steering committee for this task force, which has issued some very useful COVID-19 election guidance ([link removed]) .

One last thought for today: on the topic of vote-by-mail, some (but certainly not all) Republicans are resisting an expansion of vote-by-mail and other measures that can make voting safer. As I’m sure you’ve seen, President Trump has cast this as a partisan issue—that Republicans would “never ([link removed]) ” be elected again if voting was made easier and safer. The assumption seems to be that widespread mail-in voting would result in higher turnouts, and that Republicans are generally higher-propensity voters than Democrats.

I really find fault with these guesses that Republicans would be uniquely hurt by an expansion of mail-in voting. President Trump won ([link removed]) the majority of voters 65 and older in the 2016 election. Older Americans are one of the key targets of the medical warnings about the coronavirus right now, and they could benefit greatly from the safety of mail-in voting. In other words, wider vote-by-mail could help turn out the GOP's base this year. I’m not the only one thinking this; the conservative National Review has raised similar points ([link removed]) , too. Furthermore, the majority of poll workers are older as well, and as a result it may be very difficult to staff in person voting locations on Election Day.

Many Republicans and conservatives already support vote-by-mail. On Thursday, The Hill published an op-ed I co-authored with Paul Rosenzweig ([link removed]) , a former Homeland Security official under President George W. Bush, arguing that voters should be allowed to vote-by-mail. Additionally, a couple weeks ago, I moderated a webinar with Eli Lehrer, president of the conservative R Street Institute, who wrote an op-ed ([link removed]) with former RNC Chairman Michael Steele on the need for conservatives to get behind greater opportunities to vote-by-mail.

Republican voters already support vote-by-mail options, too: a Reuters/Ipsos poll released last week found that 65% of Republicans across the U.S. ([link removed]) support a requirement that states provide mail-in ballots as an option to protect voters in case of a continued spread of coronavirus later this year. And it’s worth remembering that Utah is an example of a deep red state that already conducts statewide vote-by-mail; the Republican Party doesn’t seem to be hurting there.

One way to bridge this particular partisan divide may be to mail absentee ballot applications to all registered voters and let voters decide whether vote-by-mail is best for themselves this year—this is something I believe Republicans are moving towards now because Republicans already prefer the idea that voters should apply for a mail-in ballot before receiving one (as opposed to having states simply mail a ballot to every registered voter, regardless of whether they submitted an application). I expect that we’ll end up with a patchwork of these procedures across the country—but without adequate funding none of this will work. States are already facing yawning budget deficits, so federal financial assistance is clearly necessary to make this federal election work.

I look forward to keeping you updated on these matters and the work of CLC in the coming weeks.

Sincerely,

Trevor Potter
President, Campaign Legal Center
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