[EL] Challenges to implementing "universal vote by mail" and limiting in person voting by November

Wed Mar 18 05:47:36 PDT 2020

No, that’s not what I’m suggesting. This is simplified, but basically this:

  1.  Eliminate restrictions on mail voting
  2.  Actively promote and educate voters about the mail voting option
  3.  Plan for more drop off locations
  4.  Educate voters that if they don’t bring their mail ballot in, they will have to vote provisionally if they vote in person (though these numbers will be much lower than with “universal mail”)
  5.  Expand central counting capacity
  6.  Clarify the criteria for rejecting a mail ballot, and require adequate notice and cure for any ballot that might be rejected

Others have suggested similar things, including Rick, I believe, so many of us are likely on the same page.

David J. Becker | Executive Director and Founder
Center for Election Innovation & Research
1120 Connecticut Avenue NW, Suite 1040, Washington, DC  20036
(202) 550-3470 (mobile) | dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>
www.electioninnovation.org<http://www.electioninnovation.org/> | @beckerdavidj

From: Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Wednesday, March 18, 2020 8:43 AM
To: David Becker <dbecker at electioninnovation.org>
Cc: Pildes, Rick <rick.pildes at nyu.edu>; Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Challenges to implementing "universal vote by mail" and limiting in person voting by November

Thanks again, David.  So, just to be clear:  If, under your preferred system (for 2020), a voter requests (and receives) a mail-in ballot, she is then ineligible to vote in person (other than by dropping off the pre-received "mail-in" ballot), so as to prevent possible double-counting?

On Wed, Mar 18, 2020 at 8:17 AM David Becker <dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>> wrote:
Thanks for your question Marty. I briefly touch on this in the piece, but due to length limitations, I wasn’t able to go into it in detail.

In states where they send ballots to ALL voters, regardless of whether they requested them, there needs to be a process in place to allow for them to vote in person if they show up. But the problem arises – how can you be sure that they haven’t ALSO voted their mail ballot. This creates an administrative challenge, that can require real-time connectivity on e-pollbooks in polling places (which some states don’t have, and could create cybersecurity risks), and likely requires offering in-person voters provisional ballots, which will lead to long lines, delays in results, and some of these provisional ballots being unnecessarily rejected.

Furthermore, the states with success in mailing ballots to all voters have gotten there gradually, often over decades. Voters need to become educated about vote by mail. It took WA many years to go to all mail. CO the same. CA and AZ are close. But to suddenly and drastically change voting in a place like Texas, for instance, would likely lead to massive problems. Long lines at polling places, huge numbers of provisional ballots, massive numbers of votes that go uncounted (because mail ballots aren’t checked for errors at the polling place when voters can correct them), and unprecedented numbers of entirely rejected ballots because election workers aren’t adequately trained to verify those ballots.

I think yesterday is instructive. Even though AZ has a longtime culture of mail voting, many people still preferred to vote in person, even in this environment. Even with reduced numbers of polling places, and fewer poll workers, it looks like in person turnout was up. If we limit in-person voting options, we will have problems, and if we also mail ballots to every single voter, the lines in those polling places and the need for provisional ballots will increase. I think there’s a middle ground that minimizes potential chaos and still encourages a massive expansion of vote-by-mail opportunities.

David J. Becker | Executive Director and Founder
Center for Election Innovation & Research
1120 Connecticut Avenue NW, Suite 1040, Washington, DC  20036
(202) 550-3470 (mobile) | dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>
www.electioninnovation.org<http://www.electioninnovation.org/> | @beckerdavidj

From: Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>>
Sent: Wednesday, March 18, 2020 8:05 AM
To: Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Cc: David Becker <dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>>; Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Challenges to implementing "universal vote by mail" and limiting in person voting by November

I'm thankful, too, David, for that thoughtful piece, which reflects what others (including Rick (and Rick)) are telling me, too.  And I agree:  By all means, states should be able to keep polling places open, too, if public health conditions permit.

But if, as you and others propose, it would be feasible and imperative for Congress to require states to provide mail-in ballots to anyone who requests them--ballots that could be either mailed back or delivered to an election site on November 3--then why would it be so much more infeasible to simply require states to automatically send such ballots to every eligible voter?  That is to say:  What's the great advantage in requiring voters to request a mail-in ballot?  (Push/pull, etc.)

Sorry if I'm missing something obvious here.

On Wed, Mar 18, 2020 at 8:01 AM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:
David,
Having just read your piece, I wanted to say thanks for bringing well-informed, realistic, and calm thought to these issues.  That’s what we need, not panicked overreactions that risk creating the destabilization of the election system that we are trying to avoid.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
212 998-6377

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of David Becker
Sent: Wednesday, March 18, 2020 7:55 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>>; Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Challenges to implementing "universal vote by mail" and limiting in person voting by November

My op-ed in today’s Washington Post may answer some of Marty’s questions.

https://www.washingtonpost.com/opinions/2020/03/18/mail-in-ballots-avoid-coronavirus-yes-heres-how-minimize-chaos-unfairness/<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.washingtonpost.com_opinions_2020_03_18_mail-2Din-2Dballots-2Davoid-2Dcoronavirus-2Dyes-2Dheres-2Dhow-2Dminimize-2Dchaos-2Dunfairness_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=zdZqjXQuxQ1lwRr0UiepqKuWhxXD8g8tTBwAnD2kGhI&s=4fUFbt8ewww_lQrEfSzhO8aIjcj2JFKb1q16oSugiek&e=>

In short, we definitely need to expand the availability of vote by mail nationwide, eliminating restrictions where they exist (~14 states) and more widely encouraging and promoting vote by mail. But there are a lot of moving parts to moving to “only mail” elections, and states where it’s working have taken years/decades to get there. If we limit in-person voting options too aggressively, we could disenfranchise many (disproportionately affecting minority voters) and add unnecessarily to the chaos.

David J. Becker | Executive Director and Founder
Center for Election Innovation & Research
1120 Connecticut Avenue NW, Suite 1040, Washington, DC  20036
(202) 550-3470 (mobile) | dbecker at electioninnovation.org<mailto:dbecker at electioninnovation.org>
www.electioninnovation.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.electioninnovation.org_&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=zdZqjXQuxQ1lwRr0UiepqKuWhxXD8g8tTBwAnD2kGhI&s=jDqiM6V_X2tjfwoCA1Qi73XZWklt55EcfokjaGlrChc&e=> | @beckerdavidj

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Marty Lederman
Sent: Wednesday, March 18, 2020 7:47 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Anyone have a link to the Klobuchar/Wyden bill? [National Voting-by-Mail, etc.]

They announced the Natural Disaster and Emergency Ballot Act last Friday<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.klobuchar.senate.gov_public_index.cfm_2020_3_with-2Dunprecedented-2Ddisruptions-2Dexpected-2Dfrom-2Dcoronavirus-2Dklobuchar-2Dand-2Dwyden-2Dintroduce-2Dbill-2Dto-2Densure-2Damericans-2Dare-2Dstill-2Dable-2Dto-2Dvote&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=zdZqjXQuxQ1lwRr0UiepqKuWhxXD8g8tTBwAnD2kGhI&s=Slao2BNQRR6o0t_CUcjXnKMMaX2tWE79ZV3Cy7oMfA8&e=>, but I haven't been able to find any bill language anywhere, and Congress.com doesn't show it as having yet been introduced.

Does the summary description sound promising?  Sufficient?

If anyone finds the language, please send along, thanks.

FWIW, I'm inclined to think that Congress should simply require states to adopt the Oregon method before November, to wit:

County clerks mail official ballots to all registered voters between Oct. 14-20.  Voters can mail the ballots back or deposit them at a central location (a "polling" place) at any time between when they receive them and election day (but they must be received by election day).  And if a ballot mailed to a voter is destroyed, spoiled, lost, or never received, the voter may request and easily obtain a replacement ballot.

Several of you who support widespread VbM and who know much more about such things than I do have cautioned me offline that it'd be difficult/hazardous to impose such a requirement nationwide for this year's general election (even if it's an ideal solution for future elections).  I remain puzzled about why all states couldn't implement it if they began doing so now--why it's not an easier lift than a bunch of other emergency initiatives that are occurring as we speak--but I'm duly chastened by the skepticism of those of you who are more in-the-know.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

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