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

[Marty Lederman]

Ah, I see, thanks -- so if I'm understanding you, the key is the
parenthetical: "(though these numbers will be much lower than with
'universal mail')."

In other words:  Anyone who receives a "mail-in" ballot can only vote
in-person with a "provisional" ballot (which takes time to check
against the mailed-in ballots)--and that sheer number increases
dramatically if the county sends mail-in ballots to all voters, rather than
only those who request them.

Is that right?

If so, it still seems to me (not that I have any expertise at all on such
matters!) that the principal downside is that it'd take several hours to
run the provisional ballot checks (a span that could be mitigated with,
e.g., some sort of electronic "marker" that registers wherever a mailed-in
ballot is received).  Which is no small cost, to be sure -- but it's
not *obvious
*to me that it outweighs the significant advantages in sending ballots to
all voters, *especially *if it turns out that many or most voters
(including millions who haven't requested a mail-in ballot) cannot appear
at the polling places.

In any event, that's very helpful, David, in teeing up the important
questions.

On Wed, Mar 18, 2020 at 8:47 AM David Becker <dbecker at electioninnovation.org>
wrote:

> 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
>
> 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> 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
>
> www.electioninnovation.org | @beckerdavidj
>
>
>
> *From:* Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Sent:* Wednesday, March 18, 2020 8:05 AM
> *To:* Pildes, Rick <rick.pildes at nyu.edu>
> *Cc:* David Becker <dbecker at electioninnovation.org>; 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
>
>
>
> 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> 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]
> *On Behalf Of *David Becker
> *Sent:* Wednesday, March 18, 2020 7:55 AM
> *To:* Marty Lederman <Martin.Lederman at law.georgetown.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
>
>
>
> 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
>
> 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> *On
> Behalf Of *Marty Lederman
> *Sent:* Wednesday, March 18, 2020 7:47 AM
> *To:* Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <
> 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
>
>
>


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