Today is arguably one of the most important elections of our lifetime. With early voting taking place in most areas of the country, we’re on track for a historic, record-breaking day—more than 93 million ballots have been cast as of Sunday afternoon. The LexBlog community has been reporting on state-specific laws and potential election outcomes and consequences.
State voting laws
There are no federal voting leave requirements, leaving the decision regarding unpaid or paid time off to vote up to states themselves. There are 23 states that do not have any form of voting leave requirements Matthew Johnson of Ogletree Deakins notes. Though mail-in voting is an increasingly popular option as a result of the ongoing pandemic, individuals working remotely are still afforded the same voting leave options on election day Jonathan Michael Thomas of Labor and Employment Law Perspectives reports: “Employers should note that state voting laws generally do not make exceptions for employees who work from home versus employees who work at their employer’s worksite.”
The variance of rules regarding voting—not just surrounding the topic of time off—results in confusion and uncertainty when trying to determine counting votes and eligibility. As Scott Greenfield discusses on his blog Simple Justice, “States do their voodoo as far as determining how voting and vote-counting should happen, and then challenges go to state courts to determine whether the process comports with state constitutions and laws.” The current construction of the federal electoral system allows for states to call the shots, so to speak, and it can get confusing.
There have been a number of court cases dealing with state voting laws, since technically there will be 51 different elections administered, Squire Patton Boggs’s Capitol Thinking points out. Marc Elias has been fighting voter suppression for months leading up to the election, his most recent win a big one in Texas. His site Democracy Docket details all of the cases he’s been fighting and lays out voting guidelines and rules state by state.
🚨🚨🚨BREAKING: Texas Federal Court REJECTS Republican effort to throw out 127,000 votes in Harris County, Texas!
— Marc E. Elias (@marceelias) November 2, 2020
For a more in-depth look at specific state voting laws:
- Shipman & Goodwin’s Daniel Schwartz of Connecticut Employment Law Blog explains the lack of voting protection laws in the Connecticut
- Greenberg Traurig’s GT L&E Blog dives deeper into California requirements, which mandate time off (unpaid)
- Jon Hyman of Ohio Employer Law Blog explains Ohio’s requirements (also unpaid time off)
- O’Neill Cannon’s Erica Reib of Employment Lawscene Blog discusses Wisconsin’s unpaid time off
- Ian Saderholm of G&G Law Blog explores Illinois’s laws and how they relate to lawyers
- Bradley Arant’s Labor and Employment Inisghts offers a look into several state requirements (such as Texas, Mississippi, and Georgia)
What’s at stake?
In short, there’s a lot at stake. Besides a potential turn over in presidency and a possible reshuffling of the legislative branch, there are a number of ballot measures that could have significant impacts on states, Howard Friedman writes on his blog Religion Clause. Some of these amendments deal with highly sensitive and controversial topics such as abortions, “stand your ground” rights, and marriage equality.
“The outcome of tomorrow’s election will be pivotal in determining the outcome of COVID-19 negotiations and the conclusion of this year’s appropriations process.” Currently, there is so much uncertainty as Squire Patton Bogg’s David LesStrang points out. With the country in economic and moral instability, an ambiguous or undetermined election could have dire results on our economy and democracy.
If Joe Biden were to be elected, he could potentially use his executive powers to significantly impact employer-sponsored health benefits. Hall Benefits Law Blog’s Eric Shillinger and Anne Hall detail actions that could take place including expanding the health care nondiscrimination rules, withdrawing rules the Trump administration has implemented, and more. On the other hand, a second term of President Trump would likely show little changes—although Debra McCurdy writes on Health Industry Washington Watch that Trump’s 2021 fiscal budget proposal includes a 10% decrease in Department of Health and Human Services discretionary spending.
As Trump has demonstrated already in his first term, climate change and the environment are not at the top of his list of priorities. If anything, he’s been reversing progress made during prior administrations. Greenberg Traurig’s E2 Law Blog mentions Trump’s significant overhaul of the regulations governing the administration of the National Environmental Policy Act just a few months ago. This contrasts heavily with Biden’s plans, where he “outlined an environmental policy that would roll back President Trump’s environmental reforms, invest trillions in clean energy and transportation, and set aggressive emissions goals, including emissions-free power by 2035.”
This is actually one topic that both candidates tend to lean the same direction. Both are in favor of being tougher on China, but want to go about that in different ways. Adams Lee elaborate on this further on Harris Bricken’s China Law Blog, explaining that “Trump prefers unilaterally imposing U.S. tariffs on targeted imports, while Biden prefers multilateral trade action against China that is coordinated with U.S. allies.”
“If Joe Biden wins the election, the federal government may have a more prominent role in combating COVID-19 than it did during President Trump’s first term.” Angela Reddock-Wright of Reddock Law Group compares and contrasts the two candidates reopening plans. We’ve seen Trump’s plan implemented, which has widely been left up to states themselves with little federal input. Things could change considerably under a Biden presidency, which proposes an eight-part plan that would involve more government intervention.
What happens next?
It’s likely we will not have an answer come election night. Depending on how close the race is, there may not be an official answer for quite some time. And depending on who the votes fall in favor for, things might get ugly: “For the first time in our nation’s history, a sitting president has publicly and repeatedly refused to commit to accepting a peaceful transfer of power.” Ballots may be contested, there may be recounts, and lawyers on both sides will probably get involved.
As Columbia Law School’s Richard Pildes writes on the CLS Blue Sky Blog, “The Constitution does not create rules or an institutional structure for resolving a modern, disputed presidential election.” The Electoral Act, around since 1887, is the framework we may look too—but it’s still riddled with legal uncertainties. “In the name of limiting their own power, the federal courts leave us at sea until the boat is nearly capsizing.”
This election has captured the attention of many who may have otherwise sat on the sidelines. If there’s one good thing to highlight, it’s that individuals are exercising their civic right to vote: “And from all indications, Americans are finally exercising that right to vote. They are mailing in. They are showing up. They are voting.”