When Citizens Must Move Mountains to Vote in Person

To combat the fraud risks associated with mail-in voting, politicians are asking us to vote in person on November 3.  But that's a tall order in New Jersey.  Those who are disabled, blind, or illiterate can  vote in person and at a limited number of polling places.  As for the rest of us, if we show up at one of the designated polling places on Election Day 2020, it likely will not be our usual polling place, and we'll be given a paper provisional ballot that could take weeks to verify.  In tech-savvy 2020, where we've been voting by machine for the entirety of my voting lifetime, in-person voting is effectively verboten for those of us who are not disabled.

It's ironic that those who are disabled, blind, or illiterate are precisely the individuals who would likely avail themselves of absentee or mail-in voting in order to stay home and vote with the assistance of trusted family or friends versus schlepping to the polls.  Yet they are the ones prioritized to vote in-person.  None of this makes sense to rational people.

Our right to vote in person, where we control how and for whom our votes are cast, was effectively nullified by King Philip (Murphy) in his August 14, 2020 executive order that "aims to ensure that voters preserve their Constitutional right to vote while upholding the priority of public health during the COVID-19 public health emergency."  

The Trump campaign sued King Philip, alleging that he had usurped the powers of the Legislature, but had to amend its complaint after the Democrat-controlled Legislature wrote his E.O. into law.  This is what happens in states with one-party rule.  I'm not sure where that case currently stands, but I'm not holding my breath, given that the judge, Michael Shipp, ruled this summer that county election boards should "presume" that signatures on mail-in primary votes are authentic and not reject them "unless there is a clear discrepancy that cannot be reasonably explained" because "some variation in signatures is to be expected" and can be impacted by "age, disability, underlying health conditions, writing implement/surface, level of concentration, and educational background."  This is exactly why voting in-person, with identification, by machine is preferable — it promotes higher voter confidence, less fraud, and little necessity for this kind of voodoo interpretation.

We shouldn't be surprised that King Phil would play fast and loose with our basic constitutional rights, despite being sworn in as governor to uphold both the state and U.S. constitutions.  Who could forget his stunning revelation to Tucker Carlson that the Bill of Rights is "above his pay grade" and something he did not take into consideration when declaring liquor stores, but not houses of worship, as essential services?

Political opportunists like Murphy have used COVID-19 to justify last-minute voter subterfuge, even though the most near-sighted among us see the hypocrisy with glaring accuracy.  We can stand on line at the DMV for hours, freely attend violent protests, go food shopping, and even deliver food to the needy, but we cannot vote in person — where we traditionally stand on long lines, check in individually where a desk separates poll worker and registrant, and enter private voting booths where we cast our votes.  Because of privacy and electioneering laws, voting was COVID-compliant before there was a pandemic.  To accommodate concerns about spreading COVID, our dear leaders simply had to require masks and gloves; provide wipes for booths; and mandate that registrants, poll workers, and people on line stand six feet apart.  Helluva lot easier than this last-minute mail-in brouhaha, changes in polling places, and new-fangled drop boxes. 

Speaking of drop boxes, along with in-person drop-off at designated polling places on Election Day, they were supposed to mitigate against fraud, especially in connection with the USPS.  Thinking it through, however, mail-in ballots still require sorting, opening, and tallying — leaving myriad opportunities for fraud and doing nothing to bolster voter confidence.   

You know what else doesn't make sense?  We can stand in line and enter a polling place to drop off a ballot in person, but we cannot stand in line and enter a polling place to vote in person. 

Complying with COVID-19 while voting should have been a no-brainer.  Instead, it's just another excuse to suppress the vote, manipulate the vote, and denude hard-working, generally obedient citizens of their freedoms. 

I'm not sure why mandatory mail-in voting without an in-person option isn't being constitutionally challenged on an emergency basis everywhere it is happening.  The right to vote is a fundamental right, and courts generally apply a strict scrutiny test to determine whether legislation affecting fundamental rights is constitutional.  Under a strict scrutiny test, the state would have to prove that its mail-in laws are justified by a compelling state interest (COVID) and that these actions were the least restrictive means to achieve its compelling purpose.  Mandating mail-in voting is clearly not the least restrictive means of keeping us safe from COVID.  If it were, we'd still be on lockdown and wouldn't be allowed to shop; everything would have to be delivered.

There is some fuzziness among the courts about the nature of the rights involved and the tests to apply — way too involved for this article.  Some case law calls for courts to examine whether legislation (for mail-in voting) is rationally related to a legitimate state interest — an admittedly low threshold.  States could successfully argue that mail-in voting is rationally related to keeping COVID infections down. 

But other case law suggests that courts balance state interests against the burdens placed on individuals, and I'm confident that a convincing case can be made that mandatory mail-in voting is unconstitutional under this balancing test.  The burdens placed on voters to comply with mail-in voting mere months before an election, while being deprived of private, reliable, time-tested machine voting where voters have more control over their vote than they do with paper ballots and/or mail-in ballots, plus the increased potential for fraud with paper ballots and/or mail-in voting, in addition to a substantial decline in voter confidence due to last-minute changes in the process, clearly outweighs the state's interest in preventing COVID infections — especially when we conduct all other aspects of our lives standing on lines and interacting with people while being COVID-compliant. 

Another avenue is that the DOJ steps in if our civil rights are being violated.  However, states generally have jurisdiction over elections and a wide berth, at that. 

The fact that COVID cases, deaths, and hospitalizations are decreasing, while treatment, drug therapies, and early intervention are improving, should favor a legal challenge by voters.  But they take time, even when expedited.  In one-party states like New Jersey, our only recourse is to make a lot of noise — a peaceful protest in Trenton or outside King Philip's home; a car parade down a major artery; or we materialize on Election Day with our crutches and wheelchairs — no disrespect to our disabled friends.  If we self-identify as paraplegic, who's to argue?

Image: Phil Murphy via Flickr, CC BY 2.0.

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