The COVID-19 pandemic has uprooted nearly all aspects of our lives and will have ramifications that will reverberate throughout society for months to come. In particular, social distancing, stay at home orders, and public health concerns will have a transformational impact on the 2020 elections in November, especially if a second wave of infections occurs once social distancing measures are relaxed. Legal battles over voting rules across key battleground states from Wisconsin to Pennsylvania have already commenced as the question emerges: how will we be voting? So far, the Republican Party has attempted to suppress voter turnout through legal channels. This highlights the potential for stealth authoritarianism, the process of enacting anti-democratic measures through legal channels, to undermine the fairness of elections in the US.
Wisconsin’s April 7th elections provide a glimpse into what could occur in November on a massive scale. More than 100 municipalities in the state have reported that a lack of poll workers will prevent them from opening a single voting location while 60% of municipalities have an insufficient number of poll workers, even with staffers coming from the National Guard. State officials also predict that voters requesting mail-in ballots, a record 1.26 million, may not receive them on time. Finally, it is unclear how limitations on public gatherings will impact voting procedures. All of these have the potential to undermine the legitimacy of these elections. Key aspects of maintaining a robust electoral democracy, as outlined by Aziz Huq and Tom Ginsburg, are missing or diluted due to the unusual circumstances of the coronavirus pandemic. The state clearly lacks a sufficient amount of “officials to organize and staff polls, certify ballot structure, and establish counting facilities.” Disagreements between Democratic Governor Tony Evers and the Republican controlled legislature over adjustments in voting procedures and rules, including potentially providing all registered voters with mail-in-ballots, undermines the state’s ability to “clearly announce [election rules] in advance to the public.” Therefore, both the Democratic primary and general elections for key local offices such as judges, mayors, and county executives will likely be exclusionary, to a degree, due to the refusal of Wisconsin Republicans to enact reforms aimed at achieving higher voter turnout.
However, one key element of a robust electoral system, “an adjudicative institution to resolve disputes,” continues to exist in Wisconsin: the judiciary. Despite disapproving of holding the elections, U.S. District Judge William M. Conley was unable to find a legal reason in the constitutional rights of voters to postpone it and determined that he could not rule only on public health reasons. This demonstrates the limited ability to use the Constitution to protect against exclusionary electoral practices, as outlined by Huq and Ginsburg. The high degree of interpretation possible in the Constitution further renders it as ineffective protection against exclusionary practices if actors in the judiciary fails to respond to anti-democratic electoral developments.
Thankfully, Justice Conley did enact a number of protections meant to preserve the integrity of this election. The deadline for absentee ballots to be requested by voters and when completed ballots can be received by election officials was extended and Wisconsin cannot require absentee ballot envelopes to bear a witness signature if voters provide a statement that they were unable to safely obtain one. Additionally, Justice Conley “reserved the right to judge that voters’ rights have been infringed” on Election Day. These actions have drawn significant Republican ire and statements that their attempts to counter these initiatives are meant to “uphold the integrity of our elections.” This is a key rhetorical tool used to achieve popular support for anti-democratic electoral initiatives increasingly being used by the Republican Party. In fact, the Wisconsin Republican Party is backing lawsuits to challenge the legality of Justice Conley’s decision, revealing the potential use of legitimate legal channels to secure their undemocratic objectives. This rhetoric and these legal suits ultimately are a continuation of the unsubstantiated claims by influential Republicans, including President Trump, of massive voter fraud in recent elections. These allegations undermine the political legitimacy of their opponents, another key anti-democratic tactic, by suggesting that Democrats illegally win elections and that minority demographics more likely to support Democrats engage in voter fraud more frequently.
Wisconsin’s April 7th Election Day has proven to be the first of many coming battles over electoral integrity. Although the Trump campaign and Republican National Committee have been responsive to changes that would likely support President Trump’s reelection chances, such as automatically supplying absentee ballot applications to voters 65 years and older, they have steadfastly resisted more expansive voting changes to allow higher voter turnout, something that traditionally benefits Democrats. In fact, President Trump rejected an attempt by House Democrats to significantly increase federal election assistance by arguing that “you’d never have a Republican elected in this country again” if the package sought by the Democrats was passed. Other instances can be seen through the push by the Republican-controlled Pennsylvania Legislature, in cooperation with Trump advisers, to limit the expansion of absentee voting and the changes made to counting these ballots in the face of a Democrat attempt to secure an entirely vote-by-mail system. Similar events occurred in Georgia when an attempt was made to send everyone a ballot.
Ultimately, Republican resistance to reforms aimed at easing participation in the voting process demonstrates their willingness to utilize this public health crisis to suppress voter engagement and highlights the wider potential for stealth authoritarianism in the US. This willingness to utilize tactics of stealth authoritarianism demonstrates a potential shift, in particular within the Republican Party, where influential party leaders are increasingly willing to engage in, or at the very least overlook, anti-democratic behavior that increases their chances of winning elections. Increased vigilance against these practices will be required to guard against anti-democratic developments and to maintain free and fair elections in November during these extraordinary times.
 Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review 100(4): pp. 1673-1742. Parts I, II and III.
 Huq, Aziz & Tom Ginsburg. 2017. “How to Lose a Constitutional Democracy.” Working Paper. pp. 10.
 Lieberman, Robert C., Suzanne Mettler, Thomas B. Pepinsky, Kenneth M. Roberts, & Richard Valelly. “Trumpism and American Democracy: History, Comparison, and the Predicament of Liberal Democracy in the United States.” Working paper. pp. 17.