The CDC Banned Evictions. Can It Also Decide How We Vote?

(Bloomberg Opinion) -- Could the Centers for Disease Control postpone the November election? In light of this week’s CDC action barring evictions nationwide, the question seems worth asking.

Early in the pandemic, Congress enacted a moratorium on evicting tenants who were behind on their rent, but the measure applied only to federally assisted housing and expired in July. Ever since, activists have argued for a new, broader ban on booting struggling families out of their apartments. On Tuesday, the Trump administration announced one, via the Centers for Disease Control.

Although moratorium advocates have rested their case largely on economic hardship, the CDC justifies its order, which runs through the end of 2020, on the argument that if renters can remain in their homes, social distancing and stay-at-home orders will be easier to maintain. As a result, the CDC argues, fewer people will become infected.

Critics have been swift to question the legal basis for the CDC’s order. And it’s fair to say that the authority is thin, resting explicitly on an obscure federal regulation that allows the director of the CDC to intervene when a state or political subdivision has not taken sufficient measures “to prevent the spread of any of the communicable diseases” into another state. Upon making such a finding, the director “may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

The critics have a point: the language seems to limit the CDC’s power to disinfection, sanitation and so forth. The rule doesn’t look broad enough to support the moratorium.  But when I call the regulation obscure, I mean exactly that. A search of the legal databases has not turned up a single court case probing the limits of the director’s authority under the rule. So let’s assume, for the sake of argument, that the critics are mistaken. Let’s suppose the rule does indeed empower the CDC to order landlords, on penalty of jail time or fines up to $100,000, not to evict their tenants.  What else could be accomplished under this authority? 

The obvious answer: Regulating the election.

Ever since the first U.S. lockdowns, observers have wondered how it will be possible to hold the election safely. States have seen large increases in requests for mail-in ballots. But tens of millions of voters are still likely to show up at the polling places in person, either because they miss the mail-in deadline or because they just think that’s the right way to vote.

We typically see long lines in presidential election years, and as the day turns to evening, the lines get longer. Hmmm. Crowding, closed spaces, lots of time spent standing around, much of it chatting with friendly strangers? Not exactly the recipe for protecting against the spread of disease. On the contrary: the CDC could plausibly argue that voting in person is a superspreading event waiting to happen. (Some researchers believe that Wisconsin’s in-person primary ballot in April was exactly that.

Remember, the CDC’s eviction moratorium is justified solely on the basis of preventing the spread of infection. It’s hard to see why, on the same basis, the agency can’t order voters not to queue. The risk of spreading COVID-19 in a crowded voting venue seems at least as great as that posed by evictions. Given the number of voters, the risk is probably greater.

So this would seem to be a place where the CDC could regulate — maybe nationwide, although the agency has the option to go state-by-state or even county-by-county. Perhaps an order might simply restrict how in-person voting takes place. But given the broad power the director is now asserting, one could imagine an order banning in-person voting altogether.  If the order were to come late enough, there wouldn’t be time to arrange additional absentee balloting. Such an order wouldn't decree a new election day, an act most scholars would consider beyond the agency's power. But if issued late enough, the order might not leave time to arrange additional absentee balloting. The state might be left between Scylla and Charybdis, forced either to decide the winner on the basis of ballots already mailed ... or find a way to postpone the election.

A reader might sensibly object that the right to vote is weightier than the right of landlords to earn a living. Fair enough. But we live in a world where state authorities, in the name of protecting public health, have arrogated to themselves the authority to restrict the exercise of other rights thought to be fundamental — such as the rights of public assembly and free worship.

I’m not saying the CDC should regulate voting. The notion is dreadful. But to cheer the nationwide moratorium on evictions is necessarily to celebrate the authority under which it’s enforced. Remember, the moratorium isn't an act of Congress. The CDC is acting unilaterally. And the agency's breathtaking interpretation of its own power has no obvious stopping point.

There’s a vital lesson here, a reminder that how government acts can be as important as what government does. In the wake of the pandemic, we’ve grown accustomed to unilateral emergency decrees by governors, mayors and state and federal agencies telling us what we can’t do because they’ve decided it’s unsafe. Even if we think they’re mostly right, we must never forget that an arbitrary power used for good can just as easily be used for ill.

The CDC also warns that people who are evicted may become homeless and move into shelters where “the ability of these settings to adhere to best practices, such as social distancing and other infection control measures, decreases as populations increase.”

Note that by federal statute, strong quarantine powers are vested not in the director of the CDC but in the surgeon general.

The CDC’s eviction moratorium expressly exempts localities that have adopted moratoria of their own, so our hypothetical voting order might exempt those localities where everyone (Oregon) or almost everyone (Washington – the state not the city) already votes by mail.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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