Elections are a sacred ritual for Jeremy Rutledge and always have been.
But for the first time in his life, the 49-year old minister of a historic Circular Congregational Church in Charleston, South Carolina, says that he is being forced to make what could be a life-or-death choice because of the risk Covid-19 poses to him.
Rutledge, who lives with his wife and son, says he has for nearly 12 years suffered from a chronic autoimmune disorder that has caused scarring in his lungs. His doctors have warned him that a Covid-19 infection could be a death sentence.
“I’ve always voted since I was old enough to vote – in every election,” Rutledge told CNN. “I never imagined that I would have to decide whether I wanted to vote or whether I wanted to live and be healthy.”
“We’ve really had serious conversations,” he said. “All of my doctors are worried that if I contract the virus, I could die from it.”
For voters like Rutledge, the coronavirus pandemic has turned the simple act of voting into an impossible calculation about whether to exercise his constitutional right or protect his health. And the virus has injected a new sense of urgency to a long-running political battle over access to voting.
After Wisconsin went ahead with its schedule in-person primary on April 7, the state has become a cautionary tale for what could happen if adequate changes are not made to prevent the spread of the virus on election day. The state has now identified several cases of coronavirus among people who participated in in-person voting that day, though it is not clear if they became infected because of in-person voting.
The NAACP Legal Defense Fund and the American Civil Liberties Union have filed suit in South Carolina challenging the state’s absentee voting laws ahead of the June 9 primary for federal, state and local offices.
Under the state’s laws, Rutledge would have no choice but to vote in person, his lawyers say. They claim that the state’s absentee voting laws do not allow a person in his situation to have a valid “excuse” for seeking an absentee ballot.
And what’s more: The state requires absentee ballots to be signed by a witness. Rutledge said that if schools reopen in the fall, he and his wife – a public school teacher – have planned to live in separate homes to protect him.
“I’ll still need to be separate from what they might be exposed to every day,” Rutledge said. “You can’t be physically distant from people and then invite them into your home to witness you voting.”
More than a dozen similar suits are being filed across the country by advocates and Democratic groups seeking to force the states that still have restrictive mail in voting rules to expand access to absentee ballots for anyone who chooses to vote by mail because of Covid-19. They are also pushing to expand early voting and guarantee pre-paid postage for mailed ballots and ballot applications, among other changes.
Already 33 states have some form of no-excuse absentee voting and five vote entirely by mail. Several others – like New York – have changed their rules in recent weeks to allow expanded access to absentee voting for upcoming elections.
But a number of other states, particularly in the South, have not moved as quickly to adjust.
Legal challenges to expand access
Trena Walker is a single mom who has battled breast cancer, emphysema and is also legally blind.
The risk she faces is two-fold. As a cancer survivor who also has a lung condition, she is especially vulnerable if she were to contract the virus. She also fears that if she goes to the polls, she could bring the virus home to her children. As the only adult in her household, the state’s witness requirement would be an impossibility without inviting an outsider into her home.
“Her underlying health is really problematic,” said Susan Dunn, legal director for the ACLU, South Carolina. “Every time she goes out the front door of her house she has to make a calculation.”
“In states like South Carolina who are requiring people to leave their homes and find a witness, over a quarter of the state are people who live alone and people who are over 65 are more likely to live alone,” said Deuel Ross, a senior attorney for the NAACP LDF. “African Americans as well are more likely than white people to live alone.”
Democratic groups and advocates are engaged in legal challenges to states’ election laws in several states, including Michigan, Wisconsin, Pennsylvania, Arizona and Texas.
Already, activists have won critical legal victories in Texas, where a state judge ruled that voters who did not want to vote in person because of the coronavirus could use absentee ballots.
But in New Mexico, a state Supreme Court judge ruled in favor of Republicans, rejecting a push by Democrats to automatically send absentee ballots to voters ahead the state’s June 2 primary.
In Louisiana, the state’s Republican secretary of state, working with the state’s Democratic Gov. John Bel Edwards, proposed expanding absentee voting for July and August elections to wide group of people with concerns about coronavirus exposure. But Republican lawmakers succeeded in blocking that proposal and have instead approved expanding absentee voting to a more limited group of people. Bel Edwards has said he can support the more limited proposal, which must still pass the full legislature.
“The states with a long history of discrimination, particularly in the South, have yet to take all the steps that they need to stop putting barriers in front of voters,” Ross said. “Many of those states are run by Republicans. But some of them, like Louisiana, are run by Democrats.”
“That is born of those states being the states that had literacy tests and other requirements for a very long time,” he added.
Partisan divide on expanding access
These longstanding legal battles have also recently taken on a more political hue – largely because President Donald Trump has vocally opposed the expansion of mail-in voting because of the threat of coronavirus.
A recent NBC News/Wall Street Journal poll found that overall, 58% of Americans favor permanently changing election laws to allow everyone to vote by mail, but just 31% of Republicans say the same.
And while many Republican election officials are moving to expand mail-in voting for upcoming primaries, Democratic election lawyer Marc Elias said no one should assume Republicans will take the same strategy when the stakes are higher in November. Elias is currently pushing for expanded access to voting in 14 states and he said that the efforts Republicans and the Republican National Committee made to block delaying Wisconsin’s primary this month is a just glimpse of what can be expected in the general election.
“Just imagine what they’re going to be willing to do when it’s Donald Trump on the ballot in November,” Elias said. “Donald Trump has set a tone that Republican legislators are going to oppose voting rights across the board.”
Even before the virus had spread widely in the US, the Republican National Committee had already pledged $10 million to combat Democratic legal challenges to state voting laws.
And the President’s campaign, as well as the RNC, has amplified Trump’s claims that mail-in voting is ripe for fraud, despite slim evidence that such fraud is widespread.
“Democrats are attempting to use this crisis as a way to get wholesale election changes that fit their far-left agenda,” RNC National Press Secretary Mandi Merritt said. “While the RNC of course supports efforts to ensure that no voters are disenfranchised due to emergency protocols, national vote by mail would open the door to its own set of problems, such as potential election fraud and ballot harvesting.
“Imposing a new system onto states unnecessarily will result in significant problems in the November election, and it is critical we work to preserve the integrity of the democratic process,” she added.
In recent weeks, the committee has put some of that money to work, weighing in on behalf of the state in several cases where the pro-Biden Democratic super PAC Priorities USA has also been involved in lawsuits seeking to expand access to voting.
Most recently, last week, the RNC and the Nevada Republican Party filed a motion opposing the efforts by Democrats to change rules related to signature matching and allowing party officials or advocates to collect ballots on behalf of voters, a practice known as “vote harvesting,” which is legal in some states but largely opposed by Republican officials.
Guy Cecil, head of Priorities USA, said this effort has long been a focus of his organization, but the coronavirus has ratcheted up their efforts.
“Ideally you would have legislation that addresses these things, but where legislators aren’t willing to act, we will take them to court,” Cecil said. “These were all problems before Covid-19, but this has exacerbated it and raised the stakes.”
Beyond the state level lawsuits, Priorities plans to weigh in at the county and local level to ensure that both mail in and in-person voting remain accessible during the pandemic.
“What we want to make sure we are preventing is a two-tiered voting system” in which wealthy cities and counties have more expanded access to voting and poorer cities and counties do not.