Congress Needs to Start Thinking About COVID-19 and the Presidential Election — Now

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KEY POINTS FROM THIS ARTICLE

— The spread of COVID-19 has already begun disrupting plans across the world. Congress must begin thinking about how it could potentially disrupt the upcoming presidential election.

— Measures taken to prevent the spread of disease could come into conflict with voting.

— The closer the election gets, the harder it will be for both parties to set aside partisan considerations and agree to take actions in the name of the greater good of the nation.

COVID-19 and the upcoming election

In 1845, Congress established the “Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President” as the day to hold a presidential election.

In 2020, that’s Tuesday, Nov. 3.

But just as Congress set this date, Congress can change it.

The United States Constitution gives the Congress the authority to regulate presidential elections and provides that the Congress may determine the “time” of choosing presidential electors.

With any luck, virus fears will be well behind us by the time Americans cast their votes in the fall.

But just as the public benefits from a renewed focus on efforts to reduce the spread of germs, the Congress and U.S. election administrators will also benefit from this opportunity to focus on addressing these issues in the voting process many months ahead of the actual election.

The closer this discussion comes to Election Day, the more partisan it will become. So now is the time to discuss from a public health perspective whether and how to conduct a presidential election in the time of COVID-19.

Singapore’s steps to limit the spread

Public entities in both the United States and the world are trying to figure out what they should do to prevent the spread of the disease. Singapore, where ones of us lives, has probably done a better job than any other country in the world in handling the COVID-19 outbreak.

Even if the U.S. was to do the same, logistically it would be difficult holding a Presidential election under such circumstances.

For example, Singapore’s Ministry of Health recommends that organizers cancel or defer non-essential large-scale events.

Second, the government issues strict “Stay Home Notices,” which means travelers returning from mainland China and other countries are forced to remain at their place of residence at all times for 14-days.

Third, temperature screenings are imperative. This has become a basic implementation and requirement at all office buildings, schools, and large housing complexes on the island. In Singapore, one is denied entry if that person’s temperature is too high (99.8F).

The United States has never had the need to implement such a system to prevent a possible large-scale outbreak.

What would happen if Singapore’s system were in place in the United States on Election Day?

Imagine a person coming to vote only to be turned away if their temperature was above the allowable limit. Would that person not be allowed to vote? One can only imagine the arguments that would ensue, let alone the legal challenges.

This would make the challenges over the “hanging chads” in the 2000 election look civil in comparison.

What if someone is under a quarantine notice and only finds out just before the election? Would they still be allowed to vote?

COVID-19 and Super Tuesday

Super Tuesday offered the first opportunity to see how the American voting process might be affected by the Coronavirus.

Indeed, there was record turnout in many locations.

In Virginia, more than 1.3 million people voted in 2020 compared to 780,000 people in 2016.

Elsewhere, some poll workers did not show up because of fears of the new coronavirus according to the Travis County (Texas) clerk’s office.

And what happens if people go to the polls but are concerned about that the voting machines may be contaminated with the virus?

“One of the things we’ve had to caution voters about is don’t get Purell on the ballots; it makes them stick,” said Travis County Clerk Dana DeBeauvoir, per the Austin American-Statesman.

No playbook exists

Although we have some experience as a guide, there is no clear playbook yet on how to proceed.

But election administrators will need to consider a range of alternatives, many of which require substantial lead time to implement.

Israel recently completed a nationwide election as global coronavirus concerns first appeared. In a stark departure from their standard practice of voting alongside neighbors in their communities, Israel opted for a limited number of pop-up polling places staffed with paramedics and election officials clad in masks and gloves. Voters were advised to don masks and gloves and to place double-sealed envelopes containing their ballots into plastic bags before inserting them into ballot boxes.

Other measures bearing consideration will be the various methods of casting votes that are alternatives to in-person voting. Those include absentee voting, early voting, vote-by-mail, and online voting. Each carries certain benefits, but each has its flaws. For jurisdictions that lack experience with new methods there are costs, training, and other burdens that must be met well prior to implementation. Moreover, as we have recently seen with the Iowa caucus process, where a new vote-counting app utterly failed, reliance on new processes without full vetting can be disastrous. Voting irregularities can cloud an election and would spell disaster in a close contest.

In the current environment, a sudden virus outbreak in the days preceding the election could have a disastrous impact on turnout and, remarkably, the same effect could even be triggered by an unsubstantiated report.

Worse, what if a bad actor used a “fake news” COVID-19 scare to keep people from voting. Imagine if there was a false tweet of a COVID-19 outbreak at a certain polling location. People would stay away, thereby tilting the election toward one party.

Is the United States prepared for that?

Pandemic before party

In United States’ hyper-partisan environment, it is hard to get the two political parties to agree on areas in which both sides do agree — such as addressing the country’s great infrastructure needs.

Putting aside the attendant costs and related disruption, a decision to postpone an election may well be in the hands of a politician whose fate is being determined in that very election.

Now, there is time to make these decisions before their political implications are known.

To get this year’s presidential election pushed back, it would take the Democratic House and Republican Senate to both agree and pass legislation to then be signed into law by President Trump.

Let’s presume public health officials advocate for changing the Election Day.

What if the polls at that time show the president badly trailing his Democratic opponent? Would the House vote to give the president more time to get even with his challenger?

Conversely, what if they show the Democrat way behind the president? Would the Senate vote to extend the campaign to give more time for the challenger to catch-up?

The House and Senate should now consider and pass legislation with an automatic trigger on postponing the election based on an agreed-upon set of facts, such as a certain infection rate and mortality rate. That way, the decision would be foreordained before either side knows who would politically benefit from delaying the election.

We are not holding our breath for such an outcome.

The Sept. 11 attacks occurred as New Yorkers were voting in that state’s primary, some within walking distance of Ground Zero. That election was postponed by state officials.

If all of our worst fears are realized and the United States is in the midst of a pandemic this autumn, let’s hope our politicians will choose country over party in ensuring we have a fair election. Now is the time to think about it.

Thurgood Marshall, Jr., and Steven R. Okun, both graduates of the University of Virginia and the University of Virginia School of Law, served in the Clinton administration as White House Cabinet Secretary and Deputy General Counsel at the Department of Transportation, respectively. Marshall practices law in Washington; Okun has lived in Singapore since 2003 and serves as senior adviser for global strategic consultancy McLarty Associates. The views are their own.