More states are likely to adopt mail-in voting, says legal expert

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Despite the controversy that surrounded the push by the Republican National Committee to deny the extension for mail-in voting in Wisconsin’s primary election and the subsequent 5-4 decision by the U.S. Supreme Court in favor of the RNC, the election’s outcome defied all predictions, said Robert Sedler, constitutional law scholar and distinguished professor of law at Wayne State Law School.

“The interesting thing is that the Republicans outsmarted themselves,” Sedler said in a recent phone interview with The Legal News. “They thought this would keep the vote from Milwaukee and Madison down. And apparently it didn’t,” Sedler reasoned, noting that despite the ruling, the Republican incumbent who was expected to keep his seat on Wisconsin’s supreme court lost by more than 10 percentage points.

Regardless of the status of COVID-19 by the November election, Sedler said he expects more states will have added mail-in voting as an alternative to in-person voting.

“I think one of the consequences of this is that there is going to be an increased movement in the states to increase mail-in voting and online voting,” Sedler said. “And of course, in Michigan, as a result of ‘Prop 3’ anybody can get a mail-in ballot. That’s going to make it a lot easier for working class people who will not have to stand in long lines anymore.”

With the 2018 passage of Proposition 3, political leaders, in and around Detroit, have an increased opportunity to encourage more people in their individual communities to vote, Sedler noted.

“This also suggests that local political leaders like civil rights leaders and black ministers, may well harvest ballots. As long as they are mailed, it doesn’t matter if a person mails them individually or collects them, so that will have an effect,” Sedler said.

It would require a bipartisan effort from both major political parties to attempt to change how states cast their ballots, which is “doubtful,” according to Sedler.

“I cannot picture the Democrats and Republicans getting together to impose any requirements. The Republicans have long believed that making it easier to vote benefits the Democrats, not them,” Sedler said. “It’s not absolutely clear that mail-in voting will have that effect, but we do know that the Republicans have tried to limit voting, especially by lower income people. In the U.S. that means African-Americans and Hispanics because they are disproportionately lower income.”

The passage of legislation by Congress that attempts to inject the federal government into how states vote is unlikely.  At the same time voters can expect more states to turn to new platforms that encourage participation in the voting process, Sedler said.

“We’re not going to see any federal law. But I’m sure you’re going to see efforts to increase voter participation through online and mail, especially where the Democrats have control of the legislature and the governorship.”

Due to a number of factors, low voter turnout has consistently been more prevalent among low-income groups even before the pandemic, Sedler said.

“States that require voters to have a driver’s license or a state I.D. don’t grasp how challenging it can be to get one. Those requirements disproportionately affect lower income people. We don’t understand what life is like for them, even in good times. Often they have difficult jobs that make it hard to get a driver’s license or state I.D.”

Sedler gives no credence to those who think President Trump will try to use the pandemic as a reason to try and push the 2020 presidential election past November 3. That date is set into law by federal statute and Congress would have to approve such a move.

“Under the Constitution, unlike that of some other countries, there is no such thing as ‘emergency powers,’ so unless Congress changes the date, the states must hold the election for presidential electors on this date.”

It’s too early to definitively know how the November election will be affected by the coronavirus, but Sedler, whose professional life has been spent not only in the classroom, but also as a renowned advocate for social justice, has some thoughts on the pandemic and other voter-related concerns.

“My wife, who just retired after many years as a geriatric social worker, makes the point that seniors are very concerned about survival and this is why they vote. And they vote disproportionately because they think everything can affect them. I understand in an off year about 80 percent of the votes in Michigan are absentee so if you are running in a local election you want to campaign at senior residences because those are the people who are most likely to vote.”

As for Governor Whitmer’s actions to slow the spread of the coronavirus in Michigan, Sedler said Whitmer’s “Stay at Home” orders are on sound constitutional ground.

“The state has broad discretion in trying to protect the public’s health, safety and general welfare. That goes back to a 1905 decision where the state of Massachusetts required vaccinations against smallpox. The state can protect people from harming themselves and harming others. Even though things can seem arbitrary and inconsistent, there is the constitutional power to do that.”

With the growing number of layoffs blamed on the coronavirus, issues that once seemed outside of mainstream politics, now sound more acceptable, Sedler said.

“Basically, we have relied on employer-based insurance which covers around 170 million people. This was more important for the labor unions than wages, but think of all the people who have lost their health insurance as they’ve lost their jobs. Suddenly Medicare for all sounds better,” Sedler said.

“Now we’re not going to have that, but one of the things this has brought up is that we need a safety net that will cover people who lose their health insurance.

The interesting question is, ‘Will the post-coronavirus era make it easier to get the greater social welfare that we liberals favor?’”




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