Voting During COVID-19: Election Operations Continuity
Ensuring the right to vote and protecting the integrity of our elections are two important functions of state government. In an emergency situation, contingent plans are necessary to ensure the orderly administration of elections. These plans need to allow for the continued safe operation of physical polling locations (if the emergency permits) and provide for convenient access to the ballot through remote means (when emergencies preclude travel or operation of normal polling locations). South Carolina's current emergency plans are lacking in their progress towards these goals. The state needs new procedures to allow for easier registration and voting during emergencies.
While South Carolina has faced a number of emergency situations over the last few years, many have been geographically limited in scope. The current pandemic is the first long-term, statewide emergency the state has faced in recent years. It seems inevitable that the epidemic will affect this summer's statewide primaries and increasingly likely that a resurgence in fall illnesses may have an impact on the 2020 presidential election.
Currently, election administration receives little attention in state emergency planning. The only substantial documents are three election emergency statutes: S.C. Code Ann. § 7-7-910(b), which gives local election operatives the authority to change polling locations; S.C. Code Ann. § 7-13-351, which provides for a five-day extension for candidates to file for office in the case that the governor declares a state of emergency; S.C. Code ANN § 7-13-1170, which allows the governor to postpone elections or relocate polling places in the case of an emergency.
Unfortunately, the efficacy of these powers is questionable in the current environment for two reasons. First, while a postponement of a non-presidential election such as a statewide primary may be a viable option, it is not clear that a postponement of a presidential general election would be possible given the constitutional requirements for the operation of the Electoral College. Federal law requires a very specific timeline for the certification of election results and voting of electors. State postponement of these processes would put state and federal processes in conflict. Second, while a postponement of an election could ameliorate issues arising from an acute crisis, the measure might be ineffective during a long-term emergency. The current COVID-19 pandemic has made it clear that our election infrastructure is woefully unprepared for a long-term emergency situation.
A second extant emergency procedure is South Carolina’s absentee voting process. While the state does allow absentee balloting, it requires its citizens to provide an acceptable excuse with their request (such as travel, work, or religious considerations). The state accepts illness as an excuse, but during a situation like the COVID-19 epidemic, when many healthy individuals are sheltering in place, it is not clear that this excuse would allow them to vote absentee. Further, the state may be unprepared to process absentee ballot applications on the scale required in a long-term statewide emergency.
There are two potential remedies to these challenges. The first is to simply move to a system of ‘no-excuse’ absentee balloting, meaning any individual may request an absentee ballot without offering a reason. This is practice is utilized by 28 states, regardless of any potential state of emergency. The second practice is all-mail voting, in which elections are conducted entirely via mail. Colorado, Oregon, and Washington currently utilize such a system. The primary difference between adopting ‘no-excuse’ absentee voting and vote-by-mail is the latter eliminates the option of in-person voting. In the case of an emergency, a ‘no-excuse’ absentee system would alleviate barriers to voting for those affected by the emergency, while still providing for in-person voting in unaffected areas. However, in the case of a state-wide emergency, an all-mail system could be used to further unburden voters.
This institute recommends that the state of South Carolina moves swiftly to develop a continuity of operations plan for elections, which includes the following:
- Procedures for hygienic operation of polling places during a health crisis that does not warrant social distancing or ‘stay-at-home’ orders. Such operation would include guidance for preventing the spread of germs at polling locations with the following measures.
- Increasing social distances between voters
- Providing disposable covers and sanitizing wipes for automatic ballot marking devices
- Providing tissues and hand sanitizer for polling workers and voters
- Posting notices to promote best practices for preventing the spread of germs
- Revision of existing absentee ballot laws to permit ‘no-excuse’ absentee balloting.
- Providing an online system for voters to request ballots
- Preparing procedures to expedite absentee ballot requests
- Setting lenient deadlines to facilitate absentee ballot requests
- Governor authority to request absentee ballots for all voters during a state-of-emergency, effectively moving an election to vote-by-mail.
- Allowing governor to move elections to an all-mail system by automatically sending absentee ballots to all registered voters in the event of a long-term, statewide emergency
- Making voter registration procedures available online in the event of an emergency that makes in-person registration impossible
- Adoption of an online voter registration system.