Case may persuade state Dems to nix restrictions on Nov. mail-in voting...
By Ernest A. Canning on 7/17/2020, 11:35am PT  

As recently observed in a Hartford Current editorial by Shari Cantor, the Mayor of West Hartford, Connecticut, her state's residents face some of the most restrictive Vote-by-Mail (VBM) requirements in the nation. She notes, in her op-ed calling for an expansion of absentee voting in the Constitution State, that voters "may not obtain an absentee ballot unless they are a poll worker, an active member of the military, sick, out of town during all hours of voting, physically disabled or prevented by their religion."

In response to the restrictions, attorneys from the American Civil Liberties Union (ACLU), on behalf of an individual voter and the Connecticut branches of the NAACP and League of Women Voters, have now filed a federal complaint [PDF] seeking to compel the state to allow every lawfully registered voter to cast a VBM ballot during the November 3rd general election.

CT's extraordinarily restrictive "Excuse Requirement" for voting via absentee, according to the complaint, combined with the fact that state election law does not provide for early in-person voting, forces the electorate to choose this year between exercising the franchise and the very real risk of contracting (and subsequently spreading) the deadly COVID-19 virus.

Because the restrictions on mail-in voting forces the electorate to choose between voting and a risk of death --- a choice CT's Democratic Secretary of State Denise Merrill, the only named Defendant in the case, conceded voters should "never" have to make --- the complaint alleges CT's Excuse Requirement, if applied during the Nov. 3rd general election, would impose an unreasonable burden on the right to vote in violation of the 1st and 14th Amendments to the U.S. Constitution.

The complaint separately alleges that CT's restrictive VBM Excuse Requirement denies or abridges the right to vote on account of race because the combination of greater obstacles to in-person voting and COVID-19's disparate impact on the African-American community "interacts with social and historical conditions to cause inequality in the opportunities enjoyed by Black and White voters to elect their preferred representatives. [Appellate court citation]." This, the complaint alleges, violates Section 2 of the Voting Rights Act.

The 42-page federal complaint is replete with references to scientific facts and law that make it a compelling legal pleading. There's a very good chance, however, that a federal judge will never have to render a decision on the merits of the case. CT's Democratic leaders, including its Governor, Ned Lamont, may find those arguments persuasive and act accordingly...

Need to avoid "superspreading" events

Throughout the complaint, the ACLU attorneys refer to scientific sources. Those sources include the U.S. Centers for Disease Control and Prevention (CDC)'s prognostication that the dangers posed by COVID-19 will remain throughout the Fall and that in-person voting, especially in states like CT that do not provide for early in-person voting, can become "superspreading events". As the complaint argues...

The CDC has issued specific guidelines concerning voting during the COVID-19 pandemic. Among other things, it notes that states like Connecticut "with only in-person voting on a single day are higher risks for COVID-19 because there will be larger crowds and longer wait times".

The plaintiffs point out that the risk of contracting COVID-19 associated with in-person voting in CT are not limited to close contact. The risk of infection can also be occasioned by repeated "touching [of] shared equipment", e.g., computer touchscreens for disabled voters and writing instruments used to hand-mark paper ballots. The complaint notes the absence of evidence that anyone has contracted COVID-19 by casting a VBM ballot. Plaintiffs also point to COVID-19 infections incurred by poll workers as well as voters during the Wisconsin and Florida primaries this year --- evidence that confirms in-person voting can serve as an infectious event.

Plaintiffs also note that, while the COVID-19 risk of serious complications and death is especially acute for the elderly and immune-compromised individuals with certain disabilities or pre-existing conditions, people of all ages have died as a result of contracting the disease. Moreover, under the science of community spread, those who are infected at a superspreading event can then pass the virus on to other people they come into contact with. Young, otherwise healthy voters who contract the virus while voting in-person become an infection risk for elderly populations, e.g. by coming into close contact with parents and grandparents after the election. Plaintiff-cited research reveals that between 10% and 20% of those infected at a superspreading event are responsible for 80% of COVID-19 community spread.

Unreasonable burden

Boiled down to its most basic component, the plaintiffs argue that CT's Excuse Requirement, in the context of COVID-19, unreasonably burdens the right to vote because it forces the electorate to choose between exercising their fundamental right to vote and the risk of contracting a deadly disease. They estimate that continued reliance on the Excuse Requirement during the Nov. 3rd general election will cause the disenfranchisement of somewhere between tens of thousands and hundreds of thousands of CT voters. This, plaintiffs argue, violates the 1st and 14th Amendments.

Disparate impact

Moreover, the complaint details, the risks posed by in-person voting disparately impacts CT's African-American population, as well as other minorities.

As of June 29, African-American residents had "tested positive for COVID-19 at well over twice the rate of white Connecticut residents," plaintiffs allege, citing a CDC newsletter detailing "a disproportionate burden of illness and death among racial and ethic minority groups" from the coronavirus.

According to a cited Harvard study, African-Americans and Latinos "between the ages 24 and 54 are far more likely to die of COVID-19 than whites, with COVID-19 morality rates ranging from five-to-nine fold higher among racial minorities than whites." (Emphasis in original text).

The disparate impact of COVID-19 on communities of color is not coincidental. Instead, according to several cited academic studies, it is directly linked to historical, race-based socioeconomic differences that disadvantage African-Americans in terms of "higher rates of unemployment, disability, poverty, and inadequate health insurance." As observed by the CT Health Foundation, the "differences are not accidental, nor are they the result of biological differences between people of different races. Instead," the cited study added, "they reflect differences of opportunities and barriers to being healthy --- differences that are rooted in structural racism and bias."

The specific conditions of in-person voting, in the face of the COVID-19 threat, disparately impacts the African-American community as well, according to plaintiffs...

Black voters are disproportionately burdened by long lines at the polls. A recent study...found that residents of entirely-Black neighborhoods waited 29% longer to vote and were 74% more likely to spend more than 30 minutes at their polling place than residents of all white neighborhoods. This disproportionate wait-time problem means the risks of voting in-person during community transmission of COVID-19 will fall more heavily on Black voters.

Thus, in addition to the undue burden on the right to vote that plaintiffs assert with respect to all voters, the complaint alleges that African-Americans, based on race and historical socio-economic differences, will be deprived of an equal voting opportunities in violation of the Voting Rights Act.

Mail-in Voting Safeguards

The plaintiffs devote several pages to list the many safeguards that CT already has in place for absentee voting. There is a mandate that individual voters sign a form, under penalty of perjury, on an inner envelope. There are secure methods for casting the vote, including drop boxes for in-person submission that allows voters to maintain social distancing. The state has inspection and rejection procedures in place, along with severe criminal penalties for anyone who commits voter fraud.

Insofar as it relates to CT's Democratic leadership, the recitation of those safeguards hardly seems necessary. In a May 20 Executive Order declaring that all state voters will have the right to vote with a mail-in ballots during the state's August primary elections due to the pandemic, CT's Democratic Governor Ned Lamont wrote that "absentee voting offers a proven method of secure voting that reduces the risk of COVID-19 transmission by allowing individuals to vote by mail and by reducing the density of in-person voting at [the] polling place."

One suspects the accomplished ACLU attorneys devoted a portion of their complaint to safeguards to counter the GOP's and President Trump's "Big Lie" about absentee ballot fraud. Indeed, four Republican candidates who are part of a group called "Fight Voter Fraud" filed a separate lawsuit which seeks to challenge Gov. Lamont's Executive Order permitting universal VBM balloting during the state's August primary.

As set forth in a Motion to Intervene [PDF], in response to a dubious GOP legal challenge to VBM in California, the attorneys representing several voting rights organizations noted:

[Republican] allegations echo long-debunked claims that associate mail-in ballots with voter fraud. In reality, mail vote fraud is virtually non-existent. Millions of Americans vote by mail --- one in four voters did so in the last two federal elections. Yet an exhaustive investigation found only 491 instances of mail vote fraud committed between 2000 and 2012, a period in which billions of votes were cast.

Prospects for an amicable settlement

Given the science and Sec. of State Merrill's own admission that no one should be forced to chose between casting a vote and the risk of contracting a deadly virus, there's a very good chance that this litigation can be quickly resolved.

In response to an email inquiry, on July 14, Gabe Rosenberg, Communications Director for the CT Secretary of State, wrote that Merrill "has been very vocal" in supporting a change in the Constitution State's election law governing VBM with respect to the Nov. 3 election, but that change will have to be made by "either by the Governor" via another Executive Order, "or by the legislature when they meet in special session," which is expected to take place later this month.

Rosenberg is confident that the state will have the necessary financial resources and manpower to move to all VBM general election before November, if either the Governor or state legislature mandates it, noting that the Sec. of State "has been working on this issue for years," and has been publicly calling for such a change "since March."

Citing a plan [PDF] issued by Merrill for voting safely during the COVID crisis, Rosenberg told us: "We started preparing for potential COVID scenarios at the end of February/beginning of March, and we think that the [federal] CARES Act funding gives us the resources to help the towns manage all of the absentee ballots."

Lamont's May 20th Executive Order, issued pursuant to the broad executive discretion afforded by CT statutes in the event of a "public health emergency", authorized all CT voters to cast a VBM ballot during the Aug. 11 primary "if, at the time he or she applies for or casts an absentee ballot...there is no federally approved and widely available vaccine for prevention of COVID-19."

Between May 20 and July 2, 2020, when the complaint was filed, the U.S. experienced an exponential surge in confirmed COVID-19 cases, culminating with a single-day record of 55,220 new confirmed cases. That record was later "shattered" on July 10 when the single-day record soared to 68,000 new confirmed cases.

The CDC's prognostication that the pandemic will still be with us in the Fall, together with the fact that it is unlikely that a vaccine will be fully developed, let alone widely available before 2021, together with Dr. Anthony Fauci's dire warning that the U.S. could experience 100,000 new COVID-19 cases per day if the current trajectory is not altered, mandates that Lamont extend his emergency Executive Order to the November 3rd general election.

The new federal lawsuit filed against the state may help to encourage such a mandate sooner rather than later.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing