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 those pandemics, occurring against distinct constitutional backdrops concerning voting rights, differed dramatically from each other. These pandemics highlight the need for states to address the impact of election emergencies, including public health crises, on the electoral process. States should adopt election emergency laws that both empower election officials to modify an election’s rules as necessary to respond to such disasters and set forth “redlines” to identify certain policies that, even in a disaster, are too risky and problematic to 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 pandemics and other disasters that threaten the electoral process.
Election Emergencies: Voting in Times of Pandemic
Michael T. Morley
April 20, 2023