Blackletter

Blackletter

Blackletter laws are the well-established legal rules that are no longer subject to reasonable dispute. Originally, "blackletter" was the Gothic type-style which was used to set forth the law in England until the mid 18th century. It was originally used so commoners couldn't understand the laws. Every business is subject to so-called blackletter laws. This podcast brings famously experienced business people, lawyers, accountants, and anyone else in the realm of business to the table to share personal experiences that have shaped their business and to talk about how to handle black letter issues in creative ways.... Show More
September 21, 2020 3 min

Today, we're going to talk about the 2020 election and voting in the time of a pandemic.

With COVID-19, what does that mean for showing up at the polls? 

A little bit of background about how voting laws work. The Elections Clause of the Constitution lets states basically govern their own elections, including for federal office. So when you're voting for president in your local state, your state is deciding how you're going to vote. Is it mail in? Do you have the right to do an absentee ballot? Do you have to have an excuse to do an absentee ballot? Congress can regulate federal elections under that Elections Clause when they deem they need to. There's something called Help America Vote Act. And I'm sure everybody's familiar with the National Voter Registration Act, which encourages voter registration.


So where we are now is that different states have different rules about mail in and absentee voting. Because of the pandemic, a lot more states are changing their laws to allow more mail in and absentee voting. About two thirds of all states already had rules that allowed no excuse mail in voting. And that's changed over time. There are more states that have no excuse or coronavirus pandemic excuse mail in voting. And there are even some states like Nevada that are actually requiring mail and voting and are closing all of the in-person polls.

The big challenge in every one of these cases, is a balance between, is there voter fraud from mail in voting? Is there a risk of when you get mail in ballots, are they going to be fake? Or, is it easier to fake a vote for one person or another? Versus, what are people's healthcare concerns about showing up at the polls? Their right to vote, how is that stymied by this pandemic and how do we address that? Nevada decided to do all mail in voting. In fact, nobody can show up to the polls. And that was challenged in court, on the voter fraud basis, and ultimately overruled. And so Nevada, as of now, is going to have all mail in voting.

There are cases that go the other way too, for different reasons. For example, in Wisconsin, they extended the date by which you can vote during a primary by six or seven days. And that case went all the way to the US Supreme Court. And the US Supreme Court ended up reversing the district court decision and saying, "Nope, you can't do that, Wisconsin. You can't extend the voting date." There was a dissent by Justice Ginsburg that had some fair points, but right now, the short answer is there's a hodgepodge of case law decisions. But I think when we get to November, that most states are going to have either no excuse mail in voting, or mandatory mail in voting, and you're going to be able to cast your ballot by mail. Either way, whether you're Republican, Democrat, Independent, Green Party, register to vote and make sure that your vote counts. 

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