Will COVID-19 Have a Lasting Impact on Campaigns and Voting?
What Practitioners Can Learn from Recent Challenges

By Brett W. Johnson and Tracy A. Olson

The prevalence of COVID-19 has impacted every American and compelled individuals to rethink everyday processes. Campaigns and voting are no exception. Over the past three months, courts have seen challenges to relax or eliminate typical voting procedures such as petition circulation, mail-in voting and holding elections altogether. These cases may provide guidance regarding whether public health concerns could have a lasting impact on the way Americans exercise their fundamental right to vote. Political committees, at either the state or federal levels, should continue to review the changing COVID-19 landscape and how the pandemic’s impact on the 2020 campaign season may shift legal strategies.

Relaxing Petition Signature Gathering Requirements

In Arizona, both federal and state courts have seen challenges to the state’s initiative petition signature-gathering process. The Arizona Constitution sets forth a process for an initiative to gain access to the ballot. Under those provisions, proponents of a ballot initiative must submit petition sheets with enough signatures of qualified electors, each of which must be accompanied by a certification from the petition circulator. However, some ballot initiative committees argued “that the COVID-19 pandemic has effectively eliminated their ability to comply with Arizona’s rules requiring in-person signature gathering for initiative petitions.”¹ Those committees argue that, given the health concerns presented by the COVID-19 pandemic, they should be able to use the online signature-gathering system available to candidates (the E-Qual system) to gather signatures instead of the in-person signature gathering process required under law.

In a 30-page order, a district court dismissed the request reasoning in part that “Plaintiffs’ request raises significant federalism and separation-of-powers concerns. ... The people of Arizona, through their elected representatives (or, perhaps through the initiative process), should be the ones making policy choices about how to draw signature samples and whether to treat signatures generated through the E-Qual system as presumptively valid... [A] federal judge should not be making those choices on the fly as part of a TRO proceeding.”²

A similar lawsuit was brought as a special action to the Arizona Supreme Court. Although we do not know its reasoning, the Arizona Supreme Court has also denied the request to allow ballot initiative committees to use the E-Qual system during the COVID-19 pandemic.³

Relaxing Mail-In Voting

In April, Wisconsin was set to hold an election for the presidential primary and several judicial, school board and other seats. Due to the increased requests for absentee ballots, Wisconsin extended the deadline for clerks to receive ballots from election day, April 7, to April 13, allowing voters several additional days to utilize mail-in ballots. In a challenge eventually led by the Democratic National Committee, courts considered whether absentee ballots must be mailed and post-marked by election day or whether the extension meant that ballots could be sent after April 7, so long as they were received by April 13.⁴

On appeal, the United States Supreme Court held that all ballots must be mailed by election day, reasoning that “[e]xtending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters—for an additional six days after the scheduled election day fundamentally alters the nature of the election.”

Canceling Elections

In New York, a former candidate for the Democratic presidential nomination challenged the State Board of Elections’ decision to cancel the Democratic presidential primary election.⁵ Prior to the Board’s decision to cancel the election, all candidates for the Democratic presidential nomination (except Joe Biden) had withdrawn their candidacy or suspended their campaign. Challengers argue, however, that former candidates “Andrew Yang and Bernie Sanders deserve a chance to gain delegates to the August Democratic convention.”⁶ In ordering the primary election must take place, the District Court reasoned that even though New York law was amended in April 2020 to allow the Board of Elections to cancel elections under these circumstances, the challengers were likely to suffer irreparable harm to their First and Fourteenth Amendment rights and the balance of equities favored holding the election.

On appeal, the Second Circuit affirmed the District Court’s opinion in a summary order for “substantially the reasons given by the District Court” with a full reasoning to follow.⁷ In its opinion, issued June 1, 2020, the Second Circuit emphasized that “in light of the importance of the right to political participation in a primary election and the pivotal role that delegates play within the structure of the Democratic Party, [the delegates of former candidates] have shown that, absent injunctive relief, their First Amendment rights likely would be forever extinguished.” Further, the Second Circuit agreed with the District Court that it was significant the new election law authorizing the Board to cancel the election was passed in “the eleventh hour” and “upended the candidates’ settled expectation that they would stay on the ballot...”⁸

Final Thoughts

What can be learned from these examples is that courts may be unwilling to alter written laws that are fundamental to the election processes, even under unprecedented circumstances presented by COVID-19. These decisions further underscore the value of election procedures designed to safeguard their integrity and vigilance in election safeguards in these changing times. Nevertheless, the New York case also indicates that simply changing the law to alter election procedures in light of COVID-19 is not enough; if a law burdens fundamental rights more severely than it benefits state interests, that law will likely not be upheld.

As political committees continue to evaluate election officials’ decisions to adapt to the COVID-19 environment, ensuring compliance with applicable constitutional and statutory requirements can be pivotal. In addition to raising issues as soon as possible with election administrators, political committees and other non-governmental election advocacy groups may want to consider seeking injunctive relief from the judiciary.