October 13, 2016

Private: The Hurricane Canon for Election Law

Joshua A. Douglas, Joshua Douglas

by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)

The federal court’s ruling in Florida, then, follows similar decisions to favor voters who face an unexpected disaster that makes it harder for them to participate in the election. Call it the “Hurricane Canon”: election officials and courts should favor voter access when disaster strikes. Voting, as the most fundamental right to our democracy, must be as open as possible to all.

Moving forward, election officials should do what they can to mitigate these kinds of disruptions to the voting process. Online voter registration, for example, is an easy fix. Florida’s online voter registration system will begin in 2017. Those states without online voter registration – about 12 states according to the National Conference of State Legislators – must act now to expand voter registration rules. (Of course, online voter registration in Florida may not have avoided a lawsuit, but it would have made the voter registration problem from the hurricane a lot less severe.)  Even better would be to adopt automatic voter registration, as California, Connecticut, Oregon, Vermont, and West Virginia have done, putting the onus on the state to register voters unless the voter affirmatively opts-out. (Both the Illinois and New Jersey legislatures passed automatic voter registration for those states, but the Governors vetoed the bills.)

Further, states and the federal government desperately need to allocate more money to election administration. Many voter hassles are avoidable if we simply harness existing technology to improve the voting process. For example, online voter registration, coupled with Facebook’s persistent reminders, vastly improved voter registration numbers for groups that typically have low turnout, such as young voters. Technology can also help make voting itself easier. For instance, in Doña Ana County, New Mexico, voters can use any of the vote centers in the county (such as near work), as opposed to having to go to their home precinct, greatly improving the convenience factor to vote. This change was possible only because Doña Ana County has electronic voting machines that facilitate vote centers. This is not to say that we should eliminate a paper trail to assist in ballot counting disputes and ward off fraud. We can couple voting technology, like online voter registration and enhanced voting machines, with the best practices for election administration. But states need the resources to do it.

Finally, courts should continue to serve as the prime protectors of voting rights, especially when voters face last-minute, unexpected obstacles. Although, as Professor Ned Foley points out, hurricanes themselves are not unconstitutional, the denial of the right to vote because of a hurricane is – even if the state is formally treating everyone the same. This is because the substantive constitutional protection of the right to vote should require a baseline level of access for everyone, separate from typical equal protection principles. In this way, we can think of the right to vote as really emanating from substantive due process, particularly in the wake of what amounts to a denial of this fundamental right through no fault of the voter. The U.S. Constitution does not explicitly confer the right to vote and U.S. Supreme Court jurisprudence looks at voting through the lens of the Equal Protection Clause. But it may make more sense to consider the right to vote as part of the core aspects of substantive due process. A “Hurricane Canon” for the constitutional right to vote puts us closer to an ideal of robust protection for the right to vote within the U.S. Constitution, at least for emergency situations.