The angry and escalating voting battle in Wisconsin is highlighting a problem that the entire nation will likely have to face in the fall -- how to you vote amid a pandemic?
States have already responded to ongoing primary elections with a welter of chaotic actions that in most cases have ended with postponement. But postponement may not always be possible, whether it comes down to a political objection as it does in Wisconsin, or for purely health-focused reasons. Asked Monday about voting in November, Senate Minority Leader Chuck Schumer told reporters that the nation has to have a plan.
"This is something that I think is very, very important, that we have to have the elections function in the fullest and freest capacity that we can," Schumer said. "I think it's very important that we allow people to vote, and if Covid is preventing voting in the normal ways, we have to very seriously look at ways that we can get people to vote in ways that complement or that fit alongside the needs for health," Schumer said.
But he did not present a plan, because it turns out trying to figure out how to hold a national election in a nation that leaves such things up to the states is extremely complicated. and the stakes are as high as they can be in a democracy.
The most obvious safe method is voting by mail (Sen. Ron Wyden (D-Ore.) has a bill to allow that, and a similar measure with Minnesota Democratic Sen. Any Klobuchar), but President Trump has sharply criticized that idea, saying that Republicans people cheat and that would lose, although he himself voted by mail in Florida recently. Public officials almost across the board have been holding out hope that the country will get past the crisis in relatively short order, which would relieve the need for taking dramatic steps. Yet, most basic research on viral pandemics shows that they frequently come in waves. Indeed, guidance prepared for employers by the Department of Health and Human Services and the Occupational Safety and Health Administration going back the the George W. Bush administration warns people to be prepared for two waves of illness, each lasting up to 12 weeks.
Such guidance suggests lock-downs and quarantine's are likely to be needed again, and while every new virus is likely to have its own new patterns, existing research suggests the country needs to be prepared for November. Again, think of the stakes. Not only is the presidency on the line, but the entire House of Representatives and a third of the Senate are up for election. If elections can't happen, there would essentially be no House of Representatives, no president and no vice president. With no elected president or vice president, and no speaker of the House, the line of succession in the United States next goes to the president pro tempore of the Senate. Right now, that's Iowa Sen. Chuck Grassley, who is the most senior member of the GOP majority. But with 24 Republican seats up for election and only 12 Democratic seats, it is not clear who would be in the majority on the start of the session in 2021. While House seats must be filled by elections, many states allow their governors to appoint senators when there are vacancies. If all governors who can fill vacancies all choose fill-ins from their own party, and do it immediately upon the first day of the session, the Senate would likely stand at 50 Republicans and 47 Democrats, with Majority Leader Mitch McConnell being among the casualties. But vacancies caused by an inability to hold an election would put us in unprecedented territory, which would likely spur legal challenges. It's impossible to guess how all that would work out in each state. It is also impossible to guess how each state might attempt elections on an ad hoc basis. Whatever they do, legal challenges are all but certain. Schumer said Sen. Amy Klobuchar (D-Minn.) was tasked with looking into solutions on the Democrats' side. That solution would have to be bipartisan, and it would have to come pretty soon. Because any novel solution to deal with a novel virus is, again, almost certain to face legal challenges in every affected state. But assuming no one can vote (or that votes are tied up in courts) the three states with Senate elections in November that do not allow gubernatorial appointments are Oklahoma, where Republican James Inhofe, is retiring, Oregon where Democratic Sen. Jeff Merkley is up, and Rhode Island, where Democratic Sen. Jack Reed hopes to return to office. The Senate would lose two Democrats and one Republican. Six states with Republican senators up for re-election have Democratic governors, although North Carolina requires an appointee of the previous seat-holder's same party. Democrats could pick up the other five seats, though, in Colorado, Kentucky, Louisiana, Maine and Montana. Three states with Democrats up for re-election have Republican governors who are not restricted in choosing temporary replacements. Republicans in Alabama, Massachusetts and New Hampshire could gain those three seats. The net would be a 97-seat Senate, with 50 Republicans, 45 Democrats and two independents who vote with Democrats. But again, that assumes all states act immediately, and all lawsuits are resolved in all the governors' favors.
Even more complicated than puzzling out a virus-hampered Senate is guessing how all 50 states would handle elections in a deadly crisis, and what happens should many states vote, while many others do not.