Election Emergencies: Voting in Times of Pandemic

Abstract

Over the past century, two global pandemics have struck during American elections—the Spanish Flu of 1918 and COVID-19 in 2020. The legal system’s responses to these pandemics, occurring against very distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to prepare to address not only public health crises, but election emergencies more broadly. States must adopt election emergency laws that both empower election officials to modify the rules of the electoral process as necessary to respond to these disasters, and also set forth “redlines,” identifying certain policies that, even in a disaster, are too risky and problematic too adopt. Courts, for their part, must recognize the unique challenges that election emergency litigation poses, and adapt their jurisdictional, procedural and equitable requirements to be able to effectively adjudicate challenges arising from disasters that threaten the electoral process.

Keywords: pandemic, COVID-19, Spanish Flu, voting, election law, constitution, Elections Clause, Presidential Electors Clause, Due Process Clause, Equal Protection Clause, standing, laches, Purcell Principle, injunction