A federal judge this week may decide the fate of the controversial emergency elections plan proposed by Louisiana Secretary of State Kyle Ardoin after preliminary hearings in a lawsuit filed by voting rights groups.
With just eight weeks until the Nov. 3 presidential election, Louisiana has not adopted an emergency elections plan designed to keep voters safe from the coronavirus, due in large part to a partisan dispute over who should have access to absentee ballots.
More than 2.1 million Louisiana voters are expected to participate in the Nov. 3 presidential election.
The NAACP Legal Defense and Education Fund and the Power Coalition for Equity and Justice, the pair of voting rights advocacy groups that filed the lawsuit, are pushing for Louisiana to join 43 other states in allowing near-universal access to mail-in ballots this fall.
But the state’s chief elections officer, Republican Secretary of State Kyle Ardoin, has proposed an election plan that would only expand access to mail-in ballots for voters who can prove they have tested positive for COVID-19.
Democratic Gov. John Bel Edwards has called that plan “woefully inadequate” and has vowed to use his authority to block it from taking effect.
Elections officials in many other states have the authority to craft and implement emergency elections policies independently. But Louisiana election laws passed in the aftermath of Hurricane Katrina require that any emergency election plan be approved by the governor and both chambers of the state legislature.
Last week, Edwards, who as governor is a defendant in the suit, requested that U.S. District Judge Shelly Dick intervene and require the state to implement the same coronavirus accommodations that were in place for this summer’s presidential primary and municipal elections.
“Simply put, Secretary Ardoin’s plan for the November and December elections does not adequately protect the constitutional right to vote,” Edwards wrote. “Further, it is contrary to the recommendations of the CDC and public health experts. We can and must do better. I am hopeful that the Court will find a way to order that we implement a safe election plan for the fall elections.”
Dick will hear arguments from both sides in hearings scheduled for Tuesday and Wednesday.
Ardoin laid the blame for the state’s lack of an election plan squarely at Edwards’ feet in a statement he made last week.
“I understand the vital importance of protecting the right to vote in the midst of a pandemic,” Ardoin wrote. He also said he would direct all poll workers to wear masks and have extras available for voters, and he gave parish clerks of court the authority to move polling places away from nursing homes.
Voting accommodations for the coronavirus have been a political football in the state since March. Edwards got the first kick.
He and Ardoin — without input from the Republican-controlled state legislature — co-authored the first draft of the emergency elections plan for this summer’s twice-delayed presidential primary and municipal elections. The plan would have vastly expanded access to absentee ballots, allowing people to mail in their vote for a variety of coronavirus-related reasons, including “concern of contracting the virus,” effectively granting an absentee ballot to anyone who wanted one.
Republicans state senators on the Senate and Governmental Affairs Committee scuttled Ardoin and Edwards’ proposal in April, saying that such a broad expansion of mail-in voting would compromise the security of the election process.
They shaped, then swiftly approved, Ardoin’s second draft, which allowed for a modest expansion of mail-in voting. It allowed voters to request an absentee ballot if they had medical conditions that put them at heightened risk, were subject to a quarantine order, were told to self-quarantine by a healthcare professional, or were experiencing symptoms of COVID-19.
Edwards signed off, and the plan was implemented for this summer’s elections.
The NAACP and Power Coalition sued the state over that plan too, saying it did not go far enough to protect voters from the coronavirus, but Dick ruled that it was constitutional and dismissed the case.
While the percentage of people who cast their ballots this summer surged to 19 percent — a new record — only 2 percent of those people listed a COVID-related reason on their application for a mail-in ballot.
Ashley Shelton, executive director of the Power Coalition, said in a statement Friday that voters should not have to choose between exercising their right to vote and ensuring the health of themselves and their families.
“The Emergency Election Plan that was in place for Louisiana’s July and August elections should be a bare minimum for what we do in November and December,” Shelton said.
Jeff Landry, the state’s Republican attorney general, has also waded into the debate. On Wednesday, Landry put out a press release announcing the conviction of a Crowley woman for election fraud after she “purposefully failed to mark an elderly voter’s ballot in the manner dictated by said voter.”
Ardoin had previously alluded to an increase in potential voter fraud brought on by the expansion of mail-in voting in this summer’s elections, but refused to provide additional information, saying he would not comment on ongoing investigations.
“Voter fraud undermines the very foundation of our democracy and is all the more egregious when perpetrated against vulnerable populations like elderly voters,” Ardoin said in a joint statement with the attorney general, adding that the conviction was the result of their offices’ “close cooperation.”
Voter fraud is exceedingly rare, whether votes are cast in-person or by mail.
A study conducted by the Brennan Center for Justice, a group that advocates for greater access to elections and mail-in ballots, found that most initial reports of voter fraud are later credited to “clerical errors or bad data matching practices.” They determined that the actual incidence of voter fraud was between 0.0003 and 0.0025 percent.
Landry also issued a non-binding legal opinion that said voters with medical conditions that put them at a higher risk of negative outcomes and people with COVID-19 symptoms who are awaiting test results could go to a doctor and request a note saying they are “temporarily disabled.” Such a designation would qualify them for an absentee ballot under the state’s normal election rules.
Ardoin pointed to the same loophole in legislative hearings last month.
Matthew Block, Edwards’ executive legal counsel, dismissed this argument in a memo filed with the court.
“That the Attorney General would have to resort to such legal gymnastics just to develop a possible way for a symptomatic person to avoid standing in a lengthy line of election demonstrates the need for an election plan that adequately protects the people of Louisiana and their right to vote,” Block wrote.
Block said that workaround is unfairly burdensome for individuals with health concerns, especially when compared to the state’s permissiveness when it comes to granting absentee ballots to people who will be away from their polling place on election day.
“Using this provision, a duck hunter residing in East Baton Rouge Parish could cross the Mississippi River to his hunting camp in West Baton Rouge Parish, leaving him absent, (though not far) from his parish of residence on early voting day and election day,” qualifying that person to vote by mail, Block wrote. “However, without intervention by this court, someone with COVID-19 receives no such accommodation.”