[EL] Effect of the proposed (and enacted) state voting bills: pre-COVID vs. COVID-related regulations

[Doug Spencer]

I think Mark raises a really interesting point about the various bills
being considered/passed by the states. I have not seen much analysis that
compares these bills to the pre-COVID status quo. Such a baseline probably
wouldn't matter much in the case of Texas, which made relatively few
COVID-accommodations
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3800362>, but it would
add far more nuance to the debate about SB 202 in Georgia where Gov. Kemp
postponed the primary election twice and mailed absentee ballot
applications to all 6.9 million active registered voters in the state,
among other emergency actions. (One wonders whether the Trump DOJ would
have precleared many of these moves in the counterfactual non-*Shelby
County *world).

One dimension that I'd add to Mark's, independent of barriers to the vote,
is the fact that some of these laws are minimizing the authority of
election administrators (i.e., people whose job depends on getting the vote
count right) and expanding the authority of elected officials (i.e., people
whose job depends on winning the vote). I think the laws that have done
this are problematic regardless of COVID-accommodations.

Also, the dynamics of a ratchet theory of voting—Mark points to the
non-retrogression standard, but the idea is also rooted in the
language of *Bush
v. Gore* that "having once granted the right to vote on equal terms, the
State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another"—deserves the some attention. How much
do we value experimentation? Is it better to expand voting rights quickly
and later retract some of them, or to expand voting rights very slowly in
the first place? In equilibrium, a strong ratchet theory of voting would
likely lead to *less* expansions of voting rights. Perhaps this is another
argument for states to clarify their election emergency powers
<https://ir.law.fsu.edu/articles/632/> (h/t Michael Morley).

Doug

[image: image.png]




On Fri, May 7, 2021 at 11:27 AM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> I wonder whether anyone has categorized these bills in terms of whether
> they:
>
> 1. Make it more difficult to vote than was the case pre-COVID;
> 2. Restore the law and voting regulations to their pre-COVID status;
> 3. Leave in place some but not all COVID-related changes that made it
> easier to vote; or
> 4. Make it more difficult to vote in some ways but easier to vote in other
> ways than was the case pre-COVID.
>
> Perhaps there are other relevant categories or more specific categories
> that could be useful to consider.
>
> This is not to say that pre-COVID rules were optimal. It is relevant to
> whether emergency-related changes ought, in some sense, to create a kind of
> ratchet (similar, I suppose, to the non-retrogression standard for
> preclearance before Shelby County). To the extent that the experience with
> the COVID-related measures shows that they are workable and not subject to
> abuse (or vice-versa), they could be seen as a kind of short-term
> experiment. Of course, we don't know how they might work over a longer
> term, as parties have a chance to adjust to them.
>
> Mark
>
> [image: Pepperdine wordmark]*Caruso School of Law*
>
> *Mark S. Scarberry*
>
> *Professor of Lawmark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
> Personal: mark.scarberry at gmail.com
>
>
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