SEASON 2

Absentee Balloting: Preparing for the November Election

In its April 2020 primary election, Wisconsin experienced serious problems in its absentee balloting processes, which led to a federal court case (RNC v. DNC) that the U.S. Supreme Court ultimately resolved on election eve. The problem was that in the face of the current pandemic, the number of voters who requested an absentee ballot overwhelmed the election officials’ ability to get the ballots to the voters in time to cast them. The result was the disenfranchisement of tens of thousands of Wisconsin voters, controversy over the federal courts’ ability to remedy this disenfranchisement, and confusion of the voters. But that Supreme Court decision has done little to solve the problem or to reduce the possibility of an analogous controversy in the future. Indeed, this podcast will consider whether the risk of a similar problem in November is every bit as great. For instance, consider the challenge that would confront Pennsylvania – already taxed by having to administer a new mail-in voting law that for the first time will allow any voter to request an absentee ballot – if an outbreak or resurgence of COVID-19 occurs in Philadelphia in the weeks prior to Election Day.

In the face of a surge in requests for absentee ballots that completely overwhelms state election officials, how should our legal system respond? Should a state court order Pennsylvania election officials instead to accept write-in absentee ballots from these voters? Or to accept ballots that arrive up to seven days after Election Day? Or would such an order violate the Due Process Clause? And could a controversy over this scenario result in Pennsylvania submitting two competing slates of presidential electors to Congress?

SUPPLEMENTARY RESOURCES

 

The full episode transcript is available here. Please excuse typos due to inaudible passages or transcription errors.

Part I, Early In-Person Voting and Open Absentee Voting of Principles of Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes

Reporter: Edward B. Foley; Associate Reporter: Steven F. Huefner (2019)

Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management

Foley, Edward B., Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management (August 31, 2019). 51 Loyola University Chicago Law Journal 309 (2019); Ohio State Public Law Working Paper No. 501.

Assessing the Validity of an Election’s Result: History, Theory, and Present Threats

Foley, Edward B., Assessing the Validity of an Election’s Result: History, Theory, and Present Threats (February 9, 2020).

Winnowing and Endorsing: Separating the Two Distinct Functions of Party Primaries

Foley, Edward B., Winnowing and Endorsing: Separating the Two Distinct Functions of Party Primaries (February 1, 2020).

The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project

Huefner, Steven and Foley, Edward B., The Judicialization of Politics: The Challenge of the ALI Principles of Election Law Project (May 7, 2014). Brooklyn Law Review , Vol. 79, No. 2, 2014; Ohio State Public Law Working Paper No. 249.

Race, Redistricting, and the Manufactured Conundrum

Levitt, Justin, Race, Redistricting, and the Manufactured Conundrum (May 1, 2018). 50 Loy. L.A. L. Rev. 555 (2017); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2018-02.

Testimony Before the Subcommittee on the Constitution, Civil Rights and Civil Liberties, of the U.S. House Committee on the Judiciary: Congressional Authority to Protect Voting Rights After Shelby County v. Holder

Levitt, Justin, Testimony Before the Subcommittee on the Constitution, Civil Rights and Civil Liberties, of the U.S. House Committee on the Judiciary: Congressional Authority to Protect Voting Rights After Shelby County v. Holder (September 24, 2019). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2019-32.

Elephant in the Room: Intentional Voter Suppression

Manheim, Lisa Marshall and Porter, Elizabeth G., The Elephant in the Room: Intentional Voter Suppression (March 5, 2019). Supreme Court Review (2019, Forthcoming).