Attorney General Tong and Civil Rights Counsel Publish Law Review Article Urging State-Level Election Reforms(Hartford, CT) – Attorney General William Tong and Special Counsel for Civil Rights and Deputy Solicitor General Joshua Perry authored an essay in the Connecticut Law Review urging state-level election reforms to protect voting rights in the wake of the 2020 elections.
“Voting rights cannot depend on shared good-faith adherence to democratic norms. Instead, we need clear and detailed laws that will entrench the advances of 2020, expand voting rights even further, and constrain would-be bad actors where norms have failed or threaten to fail,” Tong and Perry write.
The essay examines three legal trends emerging from the unprecedent wave of election-related litigation in 2020 that pose a threat to voting rights going forward. Those trends include: The unjustified extension of the Purcell principle to block voting protections; the growing judicial embrace of the state legislative supremacy doctrine; and the apparent willingness of some judges to throw out lawfully-cast votes. Tong and Perry argue that going forward those trends will make it more difficult to protect voting rights through the court-imposed remedies and administrative interventions that helped to promote high voter turnout in 2020. As a result, Tong and Perry argue that state legislatures should respond by enacting new statutory voting rights protections.
The Purcell principle was first articulated by the Supreme Court in its 2006 decision in Purcell v. Gonzalez as a factor courts should consider in evaluating the propriety of injunctive relief in election cases. In 2020 it was applied by many courts as a near-total bar to judicial interventions protecting voting rights in the run-up to elections. The state legislative supremacy doctrine was a once-fringe notion, best known for its appearance in Bush v. Gore. The doctrine teaches that state legislation trumps even a state constitution as interpreted by the state’s highest court.
Tong and Perry argue that state-level action is necessary to protect voting rights. While noting that Connecticut’s state constitution presents certain challenges, Tong and Perry note this is not an insurmountable barrier to reform. They suggest a series of actions that could be taken to protect voting rights, including making Election Day a holiday, legislation triggering 2020-like voting protections in the event of a future pandemic or significant disruption, expansion of automatic voter registration, early mail ballot processing, restoration of voting rights for people convicted of crimes, limitations on frivolous post-election challenges, among other measures.
“Voting rights are not about which party wins. They are about how our citizens participate in their own government and exercise one of their most precious rights. Every eligible voter who cannot or does not participate is a loss for democracy. And every new lawful participant is a win. Through their actions and inactions—even and especially the concerning ones—the federal courts have given us guidance. It is time to go out there and get some more wins for the rights of citizens to vote and have their votes counted,” Tong and Perry conclude.