By Christina Coleburn | October 25, 2020
An unprecedented election season is in full swing, bringing with it record-shattering turnout and legal controversies as millions of voters cast their ballots in the midst of the Coronavirus pandemic. With the virus disrupting traditional voting methods, cases litigating integral matters of election law have proliferated across the state and federal judicial systems, carrying far-reaching consequences for American voters. Due to the pandemic — the United States has had over 8.5 million cases and nearly 225,000 deaths thus far — changes have been made to election administration policy. These adjustments include counties mailing ballot applications to registered voters, no-excuse absentee voting, and voter registration extensions. Ballot drop-boxes, which have been used by some states in past years, are now widely available. In light of postal service delays, drop-boxes allow voters to submit ballots without using USPS.
Drop-off ballot boxes and their implications for First and Fourteenth Amendment rights are at issue in several lawsuits, most notably in Ohio and Texas. The Ohio Secretary of State and the governor of Texas have pushed to install only one drop-box per county despite huge differences in counties’ geographies and populations. Under this framework, a county with 169 people and a county with 4.7 million people would each have one drop-box. Uniformity in the number of boxes, rather than tailoring the number to the needs of each county, is unreasonable and antithetical to speech and equal protection rights, guaranteed by the First and Fourteenth Amendments respectively. This scheme also contradicts guidance from the U.S. Election Assistance Commission, which recommends having one drop-box for every 15,000 to 20,000 registered voters.
As battleground states, the impact of this litigation in Ohio and Texas is outsized and could influence close races for the White House and Senate control. In these states, some officials have restricted the placement and distribution of drop-off ballot boxes, claiming that such restrictions promote election integrity and prevent illegal voting despite overwhelming evidence to the contrary. In refusing to acknowledge the fallacious nature of these officials’ justifications for limiting access to ballot drop boxes, certain judges have provided cover for these officials, permitting their implementation of potentially harmful election administration policies. Rulings from the latest phases of the Ohio and Texas lawsuits have not only made it harder for residents to safely and securely exercise their constitutional right to vote, but have also permitted threats to speech, expression, and due process to go unchecked.
In A. Philip Randolph Institute of Ohio v. LaRose, the Sixth Circuit Court of Appeals upheld Ohio Secretary of State Frank LaRose’s directive to provide only one absentee drop box per county. Ohio civic groups sued LaRose after he issued this order and forbade county election boards from implementing more ballot boxes at their discretion. The Northern District of Ohio initially granted plaintiffs a preliminary injunction against LaRose’s directive, but the Sixth Circuit stayed the case pending appeal, effectively reinstating the drop box limit. Two of the three judges on the Sixth Circuit panel claimed LaRose would likely win on appeal when the case is decided, and lauded the directive to issue one box per county as fostering “uniformity, which in turn promotes the fair administration of elections.” They argued that “the absence of off-site drop boxes does not impose a material harm” because voters have many other ways by which to cast their ballots.
In dissent, Judge Helene White countered her colleagues’ flawed reasoning and inappropriate prediction. While the majority attempted to frame LaRose’s directive as a political issue and cautioned that courts should avoid “micromanag[ing]” election administration, Judge White correctly assessed that judicial overreach and the authority of the Secretary of State were not at issue in the case. The crux of the matter was the constitutionality of LaRose’s last-minute directive, which oversteps the authority of county boards that were tasked by the Ohio legislature to control local aspects of the election. Judge White dismantled the notion that uniformity in drop boxes is a necessary component of fair elections in light of differences among counties in population and geography. She underscored that the “[p]laintiffs presented considerable evidence that voters in the largest counties will suffer significant burdens as a result of the Secretary’s directive limiting the ability of the county boards to implement bipartisan plans tailored to best administer efficient, safe, and secure voting in their counties …The Secretary’s asserted interest in uniformity ignores that each county has its own bipartisan election commission with knowledge of the county’s needs.”
LaRose’s argument that a one-box-per-county directive furthers fairness is unsupported by evidence and destructive to voting rights. For example, Cuyahoga County has roughly 850,000 eligible voters, as Judge White noted in her dissent. Noble County, in a different part of Ohio, has fewer than 10,000. Contrary to LaRose’ claims, providing only one box for each county when Cuyahoga serves 85 times as many voters as Noble does not advance equity — it is an affront to it. All three judges should have been united in noting the worrisome impact this directive could have on Ohioans’ First and Fourteenth Amendment rights. The majority’s argument that the directive did not create “material harm” also distorts the proverbial elephant in the room. Even if an Ohioan could vote in person or mail a ballot, the directive nonetheless erodes accessibility in more populous counties. Further, LaRose and the Sixth Circuit’s argument that voter enthusiasm debunks allegations of voter suppression is based in faulty causal reasoning. Voters are excited not because the electoral process works as intended — they are eager to vote due to frustration that it does not.
False narratives that drop-box uniformity prevents fraud and protects election integrity were also echoed in the Texas government’s response to Texas League of United Latin American Citizens v. Abbott, in which Latino voters alleged that a similar Texas one-per-county ballot drop-off policy amounted to voter suppression. Like the Ohio civic groups, these plaintiffs seek voting options that mitigate coronavirus risks for voters who are disproportionately impacted by the pandemic. In this case, a panel of Fifth Circuit Court of Appeals judges similarly reinstated the governor’s single ballot box restrictions, under the guise of preventing “illegal voting.” Similar to the Sixth Circuit’s weak “material harm” contention in the LaRose case, the panel held that Abbott’s order “does nothing to prevent Texans from mailing in their absentee ballots, as they have done in the past in election after election.”
The panel’s decision, however, conveniently omits – or ignores – several relevant details. Voter fraud, as countless studies have shown, is extremely, exceedingly, and extraordinarily rare to the point of virtual nonexistence. A comprehensive investigation by an election law expert found only 31 credible instances of voter fraud among one billion ballots cast between 2000 and 2014. That is lower than the likelihood of being struck by lightning, which is 1 in 500,000 per the Centers for Disease Control. It also fails to mention that the United States Postal Service has been so overburdened during the pandemic that it explicitly cautioned that election mail would be delayed in Texas. As one 82-year-old plaintiff explained in a lawsuit challenging the policy, the single ballot box directive places an unfair burden on voters. He claims it would take him nearly 90 minutes to drive roundtrip to his nearest drop box. Bipartisan election commissions have issued recommendations in recent years advising that voters should not have to wait longer than 30 minutes to cast a ballot.
The litigation thus far in Texas and Ohio has been troubling from both a legislative and judicial standpoint. State actors have implemented duplicitous policies that may negatively impact voter turnout, and ideologically-aligned judges have uncritically defended such directives. With Election Day approaching in less than two weeks, enabling citizens to cast their ballots is all the more important, but it seems likely that this litigation will remain stalled in the courts until it is too late. Given that the timeframe for further litigation would have extended beyond Election Day, the Ohio plaintiffs have since dropped their lawsuit. And at the state level in Texas, where similar litigation is underway arguing the governor’s drop-box policy violates state law, a lower court’s order enabling counties to reopen drop-off locations that had been shuttered has been stayed pending the government’s appeal to the Texas Supreme Court.
Perhaps now more than ever, voting needs to be as accessible as possible. The Sixth and Fifth Circuit rulings unfortunately make the ballot box all the more out of reach for citizens who want to make their voices heard in this election. This is a shame, because voters should be able to exercise their right to vote without state governments, or courts, infringing upon their speech, expression, and due process rights.
Christina Coleburn is a 1L at Harvard Law School. Follow her on Twitter: @C_Coleburn.