When Voting and Religious Freedom Collide
Ten State Caucuses Roll on Shabbos – and That’s Not Okay
This Saturday, four state parties will hold caucuses to select first round delegates in the presidential nomination process. Caucuses generally require voters to show up in person, although the rules differ by state and party, and many caucuses are now more similar to traditional secret ballot primaries. Detractors of the caucus system claim that it is undemocratic, hard to oversee and privileges voters who have the time and passion to attend events in person. These problems are augmented by Saturday caucuses, which can structurally exclude Sabbath observant Jews, Seventh Day Adventists and other Saturday Sabbath observers who abstain from writing, travelling long distances, using electricity or other activities necessary to caucus during this time.
To be fair, Saturday caucuses are generally intended to make it easier for the vast majority of participants to vote without missing work. The incidental effect of Saturday caucuses on religious minorities is also starkly different from the racially discriminatory voter ID laws, rollbacks in early voting, draconian restrictions on voter registration drives, and rampant racial gerrymandering maps across the country that are clearly intended to disenfranchise specific groups for partisan political gain. Likewise, Saturday Sabbath observers comprise only a tiny fraction of the population in the states that hold Saturday caucuses—Alaska (D), Hawaii (D), Kansas (D & R), Kentucky (R), Maine (R), Nebraska (D), Nevada (D), Washington (D), Wyoming (D).[*]
However, the fact that some state parties are able to hold caucuses on Saturdays without disenfranchising groups on the basis of religious practice demonstrates that it is possible for other state parties to balance the convenience of most voters with the rights of religious minorities.
Most Existing Accommodations Don’t Explicitly Include Religious Observance
Some state parties make accommodations for those who are unable to caucus in person due to religious observance. However, absentee procedures in these states are limited, not well publicized or conducted through ad hoc mechanisms without clear standards—or even no standards at all.
For example, the Hawaii Democratic Party website states that one can only vote in person. However, failure to provide an absentee ballot for Saturday Sabbath observers would seemingly be in tension with Hawaii Democratic Party Rule 4.B.1, which states that “[a]ll public meetings at all levels of the Democratic Party in Hawaii should be open to all members of the Democratic Party regardless of race, sex, age, color, creed, national origin, religion…” Similarly, the Kansas and Alaska Democratic Party websites make no mention of any absentee mechanism for their respective caucuses, leaving one to wonder if they make any accommodations for religious observances.
In contrast, the Republican parties of Maine and Kansas provide absentee ballots for active duty members of the military stationed overseas and disabled veterans. Yet, neither of these organizations explicitly extends the existing mechanisms of absentee voting to religious minorities.
The Nevada Democratic Party allows active duty members of the military and Nevadans living “abroad” (undefined) to tele-caucus. However, this option is not available to accommodate members of religious minorities, nor would it help those who abstain from using electricity for most of Saturday. Political parties in Nevada have drawn particular national scrutiny for their Saturday caucuses from the Orthodox Union, American Jewish Committee and others. This led the Nevada Republican Party to hold a “special” caucus on Saturday night for Sabbath observant Jews in 2012 and likely contributed to the party’s decision to hold the 2016 caucuses on a Tuesday. Sadly, as Yair Rosenberg points out, the Nevada Democratic Party didn’t follow suit, thereby making it harder for religious minorities to participate in the democratic process.
The Nebraska Democratic Party and Kentucky Republican Party are somewhat more progressive in allowing absentee balloting for non-military members. However, their procedures are still not ideal. For example, the Nebraska Democratic Party awards absentee ballots on the basis of illness or work conflicts. Yet, the party should go further by specifying that this also applies to cases of religious observance. The Nebraska Democratic Party also limits absentee balloting to the first round of voting. If a preferred candidate fails to meet the qualifying threshold during the first round, the absentee voter no longer has the opportunity to help select a delegate on the same basis as those who are present in person. This places Saturday Sabbath observers at a disadvantage compared to their peers who have the opportunity to participate in subsequent rounds of voting.
Similarly, the Kentucky Republican Party lists six ways of qualifying for an absentee ballot. However, most of these relate to absence from the county on Election Day, advanced age, or infirmity, rather than religious observance. The Kentucky Republican Party should add a category for religious observance to accommodate the valid needs of Saturday Sabbath observers.
Washington State and Wyoming Provide Examples of Systems to Emulate
The Washington and Wyoming Democratic parties provide excellent examples of how caucus administrators can schedule Saturday caucuses so that they do not limit the ability of religious minorities to participate in the democratic process. In both Washington and Wyoming, Democrats can submit a surrogate affidavit form if they are unable to attend the caucuses on account of religious observance, military service, disability, illness or work schedule. These affidavits allow voters to list their first and second choice candidates. They also allow voters to check a box indicating their desire to be considered for a position as a delegate to subsequent conventions. This affords members of minority religious groups the ability to interact with their peers in later rounds of voting and provides an admirable example for other states to follow
[*] The Washington State Republican Party holds a Saturday caucus to vote on delegates and a Tuesday primary election to apportion them. In contrast, the Louisiana Republican Party holds caucuses on a Tuesday and a primary on a Saturday. Voters can cast ballots in the Saturday primary early or by mail. The District of Columbia Republican Party also hosts a Saturday “convention” with no absentee balloting for religious minorities. South Carolina held its primaries on a Saturday, and allowed voters to cast absentee ballots by mail on the basis of religious observance.