By Daniel H. Stewart

This year, on top of the normal campaign arguments about who or what we should vote for, we are also having an ear-splitting national dispute over how we should cast votes. COVID-19 has changed the way we live, work, learn and play.  Should it change our voting processes, too? Republicans, led by President Trump, say no. Democrats say yes. 

Republicans largely believe that Democrats are using COVID as a pretext to push through long-wanted but unnecessary voting schemes that will open the door to fraud and allow Democrats to steal the election. Democrats see Republicans’ resistance to change as an attempt to steal the election for themselves by suppressing likely Democratic votes. Variations of these arguments are appearing in state capitals and courtrooms all across the country, and 2020 is on pace to be the most litigated election in American history, a record we seem to shatter every four years.

Fortunately, these political skirmishes are not without precedent. This is not the first time Americans have had to consider and implement radical voting reforms on the fly during moments of massive social disruption. 

Rather, 2020 has much in common with the most important election in American history: 1864. Not only was the future of the country, emancipation, and slavery on the ballot, but 1864 also featured the first modern, partisan, and national debate over massive changes to voting rights and voting rules. (Nevada gained statehood eight days before the election; Lincoln wanted Nevada’s electoral votes far more than its silver.)

Prior to the Civil War, American election law was almost entirely a creature of state law, and nearly every soldier who left home to fight lost his right to vote. With few exceptions, all eligible voters had to vote openly (there were no secret ballots), in person, and at a designated time and place. Soldiers generally camped and fought in other states, and thus had little to no chance (or ability) to return to vote.

Republicans blamed missing soldier votes for their 1862 losses and were determined to prevent similar setbacks in 1864, especially with the fate of the country in the balance. By 1863, the country was also directly drafting soldiers into service in the nation’s first real attempt at conscription. Hundreds of thousands of soldiers served during the 1864 election cycle, and there were no time-outs in the war to allow combatants to vote. If soldiers were to vote in any great numbers, they would have to be able to vote out of state and in the field, by mail, proxy, or satellite polling locations. That meant changing state laws — and altering the core idea of what it meant to vote in America.  

To effectuate this change, Republicans had to work to amend state constitutions and statutes all across the country. Their efforts paid off. Nineteen northern states allowed their soldiers to vote in the field in 1864, and 78 percent of those soldiers who voted in the field cast a ballot for Lincoln.

The political debate over absentee soldier voting sounds familiar now. Republicans cloaked themselves in lofty, patriotic language. These poor soldiers were “the flower of our population,” and to deny them the right to vote was an act of “high-handed tyranny.” 

Democrats opposed soldier-voting laws wherever and however they could. They claimed to be the guardians of the ballot box, defending its “purity” and “sanctity.” Out-of-state soldier voting would invite fraud, they said, and the Republican-controlled army would intimidate the soldiers into voting Republican. Democrats also worried that soldiers off at war lacked the information necessary to cast an educated vote.

Early on, Democrats had some success in the courts. For example, in Chase v. Miller, 41 Pa. 403 (Pa. 1862), Democratic Supreme Court Justice (and 1863 Democratic candidate for Pennsylvania governor) George W. Woodward struck down a state statute allowing Pennsylvania’s soldiers to vote in the field. “To ‘offer to vote’ by ballot, is to present oneself, with proper qualifications, at the time and place appointed, and to make manual delivery of the ballot to the officers appointed by law to receive it.” … Permitting soldiers to vote, he wrote, “opens a wide door for most odious frauds.” To Woodward, experience had shown that the franchise “cannot be exercised amidst the tumults of war without being attended with fraudulent practices that endanger the very existence of the right.”

To be fair, Democrats were not wrong. Elections in nineteenth century America were no models of Victorian purity. Partisans employed all forms of election shenanigans, including outright fraud, intimidation, and censorship. No doubt, when compared to today’s standards, soldier voting added to and amplified an already dirty electoral system. And, almost certainly, a partisan motor drove the push for expanded soldier voting. Republicans wanted votes. But seediness and political self-interest did not make the decision wrong. Far from it. Civil War soldiers absolutely deserved the vote. Necessity and morality demanded it. 

It also was the right thing to do regardless of the results of any one election, even one as momentous as 1864. Re-electing Lincoln, saving the Union, and ending slavery are the types of ends justifying almost any means. But justifiable voting changes must stand the test of time, scratching more than immediate itches. 

The broader, long-term value of allowing soldiers to vote from the field cannot be overstated. After 1864, voting rights became a national concern (even if sadly ignored at times) and opened the door to further franchise expansions. There probably would have been no enfranchisement of African-American males via the Fifteenth Amendment (at least in 1870) without the successful effort to help soldiers vote. Hundreds of thousands of African-Americans had fought for the Union too. Shouldn’t they have the same rights? President Lincoln thought and said as much in his last public speech. “It is unsatisfactory to some that the elective franchise is not given to the colored man. I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers.” 

John Wilkes Booth, attending that final speech, understood Lincoln’s meaning, telling his comrades: “That means n— citizenship! Now, by God, I’ll put him through. That is the last speech he will ever make.” Booth did, in fact, put Lincoln through just a few days later, depriving Lincoln of seeing his last-spoken aspirations become part of the Constitution with the Fourteenth and Fifteenth Amendments. In fact, of the 14 post-Civil War constitutional amendments, seven concerned election rules and voting rights. 

Historical interest aside, what does a 156-year old election fight say about a fight over voting today? On the surface, at least, it shows that having a heated, partisan discussion about radical voting changes during a national crisis is fine. We have had these fights before, and our electoral system is far more resilient and adaptable than we may think. In many respects, change is the only constant in our history of elections. Lots of once-common voting practices no longer exist; even secret ballots were a turn-of-the-century innovation. Our elections have become cleaner, safer, and more reliable even as we have broken down legal barriers for hundreds of millions of new voters. There is no reason to believe we cannot continue that trend. 

COVID’s commotions force us to reconsider how we can and should vote in 2020 and beyond. Even before COVID quarantines and distancing, we were living more and more of our lives in a form of voluntary isolation — communicating, learning, working, playing, and shopping in-home and online. COVID certainly shook things up, but it also accelerated certain already underway developments. We were probably due for a voting discussion soon anyway.

I supported Secretary of State Barbara Cegavske’s decision to allow mail voting for the primary. By most accounts, it was a success. Turnout was up, and there is no evidence of any fraud. The one major (and fixable) problem was long lines and wait times in Clark County on Election Day. 

For the 2020 general election, Secretary Cegavske has stated she is unlikely to adopt a similar system, preferring instead to return to normal practices. Democrats want change – by legislation or lawsuit. I will pick no sides in the debate between Cegavske and Nevada Democrats. I am confident that both are acting in good faith, and both are concerned about public safety and voting rights. 

Nevertheless, whether and how COVID could or should affect our elections is absolutely a discussion worth having, even if partisan interest colors the debate. As we learned in 1864, good ideas often arise in turbulence and come welded to political self-interest. Long ago, Americans figured out how to fundamentally transform and expand voting rights and opportunities during critical elections and catastrophic crises. Overcoming COVID’s challenge to democracy demands no less an effort. If, as we are told, 2020 really is the most important election of our time, then we must all make sure all eligible voters have the right and ability to weigh in, confident in both their personal safety and the integrity of the election. 

Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s election, campaign and political law practice. He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.