There’s no right to vote by mail. New lawsuits could change that

My latest appeared in the Washington Post's Monkey Cage on May 27, 2020.

Do Americans have a right to vote by mail in a pandemic? Yes and no.

Last week, President Donald Trump attacked voting by mail, threatening to withhold federal funds from Michigan and Nevada if they expand such voting to help slow the pandemic – arguing, without evidence, that doing so increases fraud. Meanwhile, Senators Amy Klobuchar and Ron Wyden have introduced a bill to expand such voting in federal elections so that, as they wrote in the Washington Post, no one should “have to choose between casting a ballot and protecting their health.” Meanwhile, older Minnesota voters and Texas citizens lacking immunity or otherwise fearing covid-19 infections have filed lawsuits asserting that since voting in person is dangerous, they should have a right to mail voting.

Is there a right to vote by mail?  So far, no – but that could change. Here is what law says now.

Is there a right to vote? Yes and no.

This is a complicated question. Nowhere does the original Constitution or Bill of Rights expressly state that there’s a right to vote. Originally, state legislatures chose senators and members of the electoral college, who chose a president. The states were left to decide who had a right to cast a ballot.

Over time, court decisions and constitutional amendments have changed that, expanding the right to vote. In 1941, the Supreme Court found that the Constitution’s Article I, section 2 gives citizens a right to vote for members of the House of Representatives. In 1966, the Court declared the First Amendment protects a right to vote in state and local elections.  The 15^th, 19^th and 26^th Amendments made it unconstitutional to deny the right to vote on the basis of race (1870), sex (1920), or age (1971). The 17^th and 24^th Amendments have given people the right to vote for their U.S. Senators (1913) and banned poll taxes (1964). And the 1965 Voting Rights Act expanded voting rights for people of color.

The right to vote can be regulated.

However, the right to vote is not absolute. The Supreme Court has ruled that states can deny the vote to individuals such as ex-felons. States can require photo identifications to prevent voter fraud, and can ban write-ins voting for candidates not listed on the ballot. Further, states can impose routine administrative limits such as the time, manner, place, or means of voting. Unless the regulation imposes a severe burden on voting rights, some regulation is permitted.

Further, citizens still have no individual right to vote for president. State legislatures have the discretion to allow citizens to vote to select the electors who will then select the president of the United States. And as the Supreme Court reminded us in 2000’s Bush v. Gore, when it ruled that Florida’s method of counting disputed presidential ballots was unconstitutional, states also have the authority to take that right away.

Given all these qualifications, U.S. citizens’ right to vote is strongest for in-person election day voting. This is where right is the most protected but even there it can be restricted. For example, states can ban write-in votes.

Absentee and early voting are merely privileges, not rights.

So far the courts have not ruled that there is a fundamental right to vote absentee, early, or by mail. All these are privileges subject to strict compliance with states’ regulations, including such requirements as valid signatures or submission deadlines.

Now, various groups across the country are arguing that there is a right to vote by mail. In lawsuits, they claim that the threat of coronavirus infection if they must vote in person imposes a severe burden on their right to vote, thereby violating their 1st, 14th or 24th Amendment rights.

While the Constitution lets the states determine the time, place and manner for holding elections, Congress may alter these regulations. But the Supreme Court has said that Congress may only regulate federal, not state, elections -- and so Congress could not force states to allow voting by mail for those states’ own elections. It could only require  vote by mail in federal elections.

But state constitutions may require voting by mail.

Nearly all states have explicit constitutional clauses that grant a right to vote. In some cases, states supreme courts have used these clauses to protect voting rights beyond what federal law or the Constitution requires. Some states, like Oregon, already conduct all elections by mail; other states or courts could change their laws to allow that.  A North Carolina group is suing under its state constitutions for this.   There are similar suits in Minnesota, Tennessee, and Missouri, among other states.

Some opponents of vote-by-mail say they’re worried it will increase voter fraud. Numerous studies have found little evidence of voter fraud  in U.S. elections, especially for in person voting. While some studies suggest a bit more risk of fraud with absentee or mail-in ballots, little evidence suggests such voting would lead to widespread fraud. Studies of states currently voting by mail find very little fraud.

What does this mean for the pandemic and the 2020 election?

Overall, there is no right to vote by mail. But a lawsuit might be able to establish that right under either federal or state law -- if the parties can prove to judges that the covid-19 pandemic has severely limited the right to vote.