COVID-19 Must Not Be Allowed To Interfere With Our Right To Vote

The purpose of Law Day is to celebrate the rule of law and rededicate ourselves to upholding it. The importance of that exercise has never been greater than at this moment, as the global pandemic upending our lives has placed unprecedented strain on the courts and other institutions upon which our freedom and prosperity depend.

It is fitting that this year’s Law Day’s theme is Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100. That transformative constitutional amendment, ratified in 1920, guaranteed all women the right to vote. It was then, and remains today, the largest simultaneous enfranchisement in our nation’s history.

The journey to this watershed moment began right here in New York at the Seneca Falls Convention of 1848. In fact, New York women secured the franchise three years before it became a federal constitutional right.

New Yorkers understand that the right to vote forms the very basis of our democracy. It is our most precious right because it is preservative of all other rights. Without the right to vote, even the most fundamental rights would be illusory. When constituents elect their representatives, they affirm principles of self-governance and freedom.

The right to vote is held dear in New York, but that is unfortunately not the case in a growing number of states that are experiencing a voter suppression crisis. The assault on access to the ballot box has manifested itself in a variety of ways, including voter identification laws, reducing voting opportunities, and gerrymandering. The cumulative impact of these measures is the disenfranchisement of eligible voters, especially the poor and racial minorities.

The greatest, current threat to voting rights is not manmade, however; it is the pandemic. If we are still cloistered in our homes this November, it raises questions about whether we can safely and securely conduct elections for a wide range of positions—from local school board members to the President of the United States. It remains fundamentally unclear whether our voting laws and election systems can meet the challenge presented by this unprecedented public health crisis.

As we struggle to determine the right way forward, we can take lessons from the past. In 1864, the nation was deep in the throes of the Civil War, yet incumbent President Abraham Lincoln was determined to go forward with the scheduled election that would decide his fate in the White House.

“The election was a necessity,” Lincoln later said, though he had feared defeat as the young nation engaged in the bloodiest conflict in its history. He explained: “We cannot have free government without elections; and if the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us.”

That moment in history—at a time when America was so deeply divided—arguably provided as compelling case as any for postponing the election. But our 16th President would not allow it. He understood that elections are America’s foundational concept: the means by which we freely govern ourselves.

Today, we face another war, this time against an invisible foe. And the resultant disruptions to the electoral process are already underway. Fifteen states have postponed their primary elections as they enforce social distancing to slow the transmission of COVID-19, and a growing number are moving to reduce health risks to both voters and poll workers by expanding vote-by-mail options.

Gov. Andrew Cuomo has delayed the presidential primary in New York from April 28 to June 23, to coincide with the congressional and state legislative primaries. Village and school board and library elections were also postponed and will not take place until at least early June.

Even as our efforts to flatten the coronavirus curve bear fruit, in-person voting continues to pose not only public health but also logistical challenges. One is whether a sufficient number of workers will be available to monitor polling sites. Another is that traditional polling sites are buildings that are now closed or restricted for use—such as schools, houses of worship and nursing homes.

Voters themselves have expressed concern about the health risks created by in-person voting. According to one survey, nearly 70 percent of registered voters said they are in favor of postponing primary elections due to COVID-19, and a majority expressed discomfort with the idea of heading to the polls in person.

Polls show that these feelings are shared across the political spectrum. Rightly so. The virus does not discriminate based upon party affiliation. Voters must not have to choose between risking their health or exercising a civic duty.

Wisconsin just provided a cautionary tale of what not to do. The nation watched in horror as the state conducted an in-person election at the height of the pandemic. Those who wished to cast a ballot were forced to wait on long lines, in some cases greeted by poll workers wearing hazmat suits.

Predictably, many poll workers did not report to their stations. In Milwaukee—the state’s largest city with a population of nearly 600,000—lack of available workers necessitated a reduction in the number of polling sites from 180 to just five.

In New York, after several of their colleagues tested positive for the coronavirus, state lawmakers changed their own rules to allow for remote voting on the recently passed budget. They similarly could formally change the rules to make it easier and safer for New Yorkers to cast their own ballots. The state has in recent years enacted measures such as early voting intended to make the process more accessible. But there is still more to be done, including allowing for online and same-day voter registration.

Some election officials have suggested that switching to an all-mail voting system in time for the fall elections would be impossible, because to do so would take years—not mere months. There is no question that there are significant practical and technical hurdles. But if our state’s response to the coronavirus has proven anything, it is that we are strong, innovative and determined in the face of adversity.

As we struggle with fear and great unpredictability, one thing is clear: Giving up on democracy is not an option. If in-person voting remains untenable for the foreseeable future—perhaps all the way into the November general elections—we must find a way to ensure every American who is eligible to do so can cast a ballot safely and securely.

Henry M. Greenberg is a shareholder of Greenberg Traurig.